Air NZ has warned that a successful Commerce Commission prosecution against its airfare advertising could lead to unworkable and over-prescriptive rules being imposed on all.
The airline is expecting to hear later this week from Judge Stan Thorburn whether it broke the Fair Trading Act when it advertised cheap airfares
in newspapers between 2001 and 2004.
This case, which is being watched closely by other airlines and the travel industry, is likely to lay a legal foundation for how companies should fairly include extra "add-on" surcharges and fees in headline prices.
Air NZ is facing 20 sample charges, after the commission says it broke the law in 355 newspaper advertisements.
Air NZ's lawyer, Nathan Gedye, when summing up the company's case, said the court should be wary of taking an "approach which is over-prescriptive or over-refined".
"Given the complexity of cost structures in modern commerce, such a rule would be inappropriate and unworkable."
It would be unjust and unrealistic, Gedye said, for complex travel advertisements to be treated in the same way as advertising for simpler consumer commodities.
The debate about whether it was desirable to show extra charges separately was irrelevant to whether the Fair Trading Act had been breached.
"The very fact of complaining about a surcharge can demonstrate the complainer's awareness of it."
Air NZ has also criticised the Commerce Commission's use of broadcaster Max Cryer to give evidence in court about popular use of language.
"The proposition that a court should receive expert evidence on the general meaning of a word in the English language is dubious. Unless the word is a scientific term or a particular term of art, it is submitted that the conventional course is for the court to have recourse to dictionaries," Gedye said.
In the first part of the case, conducted earlier this year, Cryer said the words "fair dinkum" - used as a pun by the airline in one of the contentious advertisements - were not "an Australianism" despite it having high usage in Australia. He agreed that it was an iconic Australian phrase but said it was almost as iconic here.
Gedye told the court the airline and Qantas had been singled out for prosecution by the commission.
