Lawyers disagree on 'moveable feast' appeal in media merger case
By Sophie Boot
Oct. 18 (BusinessDesk) - 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".
(BusinessDesk)