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Lawyers disagree on “moveable feast” in media merger appeal case

BusinessEesk report by Sophie Boot
Lawyers in the media merger appeal case in Wellington’s High Court have clashed over a second appeal made by lawyers for Stuff and NZME, which the Commerce Commission says has been undisciplined and inappropriate.

The media companies have filed a second appeal running parallel to the first.

The primary appeal is on the factual and legal errors they say the commission made in rejecting the merger, while the second is on the process the regulator used to reach its decision, which they argue didn’t abide by principles of natural justice and procedural fairness, so have asked the court to disregard some evidence.

Justice Robert Dobson had suggested the second appeal be heard after the commission’s lawyers have finished its arguments on the first appeal, so that lay person Professor Martin Richardson, who is assisting him, would be spared the arguments on procedural law.

The media company’s lawyer David Goddard QC accepted this, but James Farmer QC, representing the commission, said this morning that there was an “unhappy history around the process allegations which have been made”, with the scope of the case contracting and broadening over time, and he wanted as much time as possible to consider the commission’s response to the arguments brought up in the second appeal.

“It’s been very much a moveable feast, and we’re rather unhappy at the prospect of that feast moving yet again when we hear the presentation of oral submissions to this court,” Farmer said. “Equally, we’re not totally convinced there might not be some inter-relationship between the two [appeals], and for those reasons we would prefer to hear the whole of the appellant’s case and then we will follow with the whole of our case in response.”

The judge said the case “has certainly been a concertina in its scope” and he would discuss the matter with Professor Richardson and come back to the lawyers, but was sympathetic to Farmer’s views.

In regards to the second appeal, the media lawyers say that the commission placed too much reliance on interviews of third parties known to be opposed to the proposed merger, especially as it didn’t give the publishers themselves the opportunity to review and comment on the interviews, though their lawyers have had access. They also say there was “inadequate process” around a report by BDO Wellington, and have asked the court to place no weight on the interviews and the BDO report.

The regulator’s lawyers, in a synopsis of their submissions on the process appeal, say there was no breach of procedural fairness, and the current appeal can cure any prejudice, meaning excluding the relevant evidence “is both novel and inappropriate.” They also say that in many cases, the alleged deficiencies were known about at the time but the appellants didn’t object to them.

The commission also indicated it wishes to recover costs from the media companies over the second appeal, which it says has been pursued in a way which “lacked appropriate discipline and put it to considerable unnecessary expense”.

Earlier reports

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