Commission says Air NZ rejected offer on gag orders

The Commerce Commission says it offered Air New Zealand lawyers the opportunity to talk to staff about aspects of a case covered by gagging orders but this was rejected.

The airline is fighting the imposition of the orders on staff interviewed by the commission investigating claims of collusion with other airlines over freight prices.

Five former or current employees are charged with collusion over fuel surcharges and security surcharges. Twelve other airlines also face charges.

Section 100 orders imposed during commission investigations prevent those spoken to from disclosing the content of interviews. The airline's lawyers argue it cannot defend itself properly without management being able to speak frankly to those interviewed. The commission started its investigation three years ago.

Commission lawyer Francis Cooke, QC, said that a month after proceedings were filed late last year the commission told the airline Section 100 orders could be varied to allow further disclosure by interviewees to Air New Zealand's lawyers and in-house counsel. The airline replied that the proposal was not acceptable and that the orders needed to be discharged completely.

"This proposal would have removed any possible issue that could have arisen relating to the ability of both Air New Zealand and the individuals to engage in legitimate discussions in order that they were able to prepare their defence."

Section 100 orders were imposed to prevent collusion during an investigation but in the normal course of events there were still some instances where staff could talk to the company about documents but could not reveal the contents of an interview covered by Section 100.

"I accept the distinction between the two can be difficult to draw at such times but the difficulties of distinctions always exists in confidentiality cases."

He said the time would come in this case where normal disclosure rules supervised by the court would allow those charged to gain access to all documents. However, Air New Zealand had not yet filed a defence. The hearing had also delayed proceedings concerning air cargo.

Justice Pamela Andrews reserved her decision.