NEW ZEALAND Law and Practice Contributed by: Ellie Harrison and Jasper Fawcett, Wynn Williams Lawyers
1. Introduction 1.1 Current Framework for Private Antitrust Litigation The statutory basis for private antitrust claims in New Zealand is primarily grounded in the Commerce Act 1986, although there is also scope for private antitrust action under sector-specific legislation, including the Fuel Industry Act 2020 and the Grocery Industry Com - petition Act 2023. The rules of litigation are generally governed by the High Court Rules 2016 (or the rules of the Court of Appeal or Supreme Court for appeals) and the Evidence Act 2006. While the Commerce Act allows for private antitrust claims, the most significant antitrust litigation in New Zealand in recent years has involved either enforce - ment action brought by the Commerce Commission (New Zealand’s competition regulator) or appeals from determinations of the Commerce Commission (for example, of clearances or authorisations of mergers or acquisitions). By contrast, private antitrust claims have tended to feature as additional causes of action in broader claims, particularly in recent years, and have not assumed particular significance in New Zea - land antitrust jurisprudence. The kinds of large-scale, private follow-on actions that are common in other jurisdictions have not been a fea - ture in New Zealand at all to date. There are numerous reasons that might explain this, but the absence of a fit-for-purpose class actions regime and clarity around litigation funding are likely key barriers to such pro - ceedings. The New Zealand Law Commission com - pleted a review of class actions and litigation fund - ing in May 2022, recommending the introduction of a statutory class actions regime and various matters to support appropriate litigation funding. The New Zea - land government has accepted the Law Commission’s recommendations in principle but has indicated that advancing the reforms will take some time and will need to be balanced against other government pri - orities. Accordingly, it seems unlikely that large-scale, private follow-on actions will become a significant fea - ture in New Zealand antitrust in the short-to-medium term.
1.2 Recent Developments New Zealand antitrust continues to develop, following trends in Australia and globally. Of particular signifi - cance to private antitrust litigation is the updates to the prohibition against the misuse of market power in Section 36 of the Commerce Act 1986. This provision had essentially fallen into abeyance following some high-profile cases that demonstrated that the applica - tion of the provision was unpredictable, and litigation would be complex and costly. In 2022, the provision was strengthened by the inclusion of an effects-based test that applies irrespective of the purpose of the conduct in question. The amendment brings New Zealand law into line with changes Australia had pre - viously made to its own misuse of market power provi - sion. It is likely that New Zealand will see a significant uptick in cases being brought by the regulator as well as private antitrust litigation in this space. There has also been a recent focus on anti-competi - tive land covenants (anti-competitive agreements that affect how land can be used), which have been iden - tified by the Commerce Commission as a significant issue affecting competition in various sectors of the New Zealand economy. While recent action has been led by the Commerce Commission, as businesses become more aware of this issue, it is likely that pri - vate actions challenging such covenants will become more prevalent. At the time of writing, the New Zealand government is undertaking a review of the Commerce Act to ensure it remains fit for purpose. While the findings of that review will not be published until later in 2025, it will likely result in changes to New Zealand’s merger con - trol regime (and whether the substantial lessening of competition test should be updated) and anti-compet - itive conduct (collaboration and concerted practices) provisions, as well as minor and technical amend - ments to the Commerce Act. 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis Private plaintiffs can seek injunctive relief, declaratory relief, and damages or exemplary damages in relation
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