NEW ZEALAND Law and Practice Contributed by: Ellie Harrison and Jasper Fawcett, Wynn Williams Lawyers
2.2 Courts New Zealand does not have a specialist court or tribu - nal responsible for hearing antitrust cases. The New Zealand High Court has jurisdiction to hear private actions alleging breaches of the Commerce Act 1986. Private antitrust cases heard by the High Court can be appealed to the Court of Appeal, and then with leave to the Supreme Court. Sector-specific legislation, such as the Fuel Industry Act 2020, contain different requirements, and in some cases require the reference of certain disputes to mediation and/or arbitration. It is notable that a Judge of the High Court may, of their own motion or on the application of any party to the proceedings, require one or more “lay members” (an appointed member of a panel deemed to have economic or other relevant expertise) to sit as addi - tional members of the Court and hear and determine the proceedings alongside the Judge. The High Court also operates a specialist commercial panel of Judges that will hear certain cases, including commercial dis - putes valued at NZD2 million or more and proceed - ings of a commercial character that are of sufficient private or public importance to justify consideration by a panel Judge. Private antitrust litigation will usu - ally justify appointment of a commercial panel Judge. 2.3 Impact of Competition Authorities As noted in 1.1 Current Framework for Private Anti - trust Litigation , the Commerce Commission is New Zealand’s national competition authority and the main enforcer of antitrust law under the Commerce Act 1986 and other sector-specific legislation. Its deci - sions are not binding on the Courts. The Commission enforces contraventions of the Commerce Act by tak - ing proceedings in the High Court, and its decisions (eg, clearances or authorisations relating to restric - tive trade practices and mergers and acquisitions) are subject to appeal and judicial review in the High Court. The Commission plays a pivotal role in antitrust litiga - tion in New Zealand, with the most significant antitrust cases in New Zealand having involved the Commis - sion as either the plaintiff or defendant/respondent. The Commission may seek to intervene in private anti - trust litigation, which has historically been of relatively limited significance in New Zealand (with antitrust
to the restrictive trade practices and prohibited merg - ers and acquisitions provisions contained in Parts 2 and 3 of the Commerce Act 1986. Specifically, claims for damages (including exemplary damages), injunctive relief and declaratory relief can be brought for contraventions of the provisions of Part 2 of the Commerce Act in relation to: • agreements or covenants that have the purpose, effect or likely effect of substantially lessening competition in a market; • prohibited grocery-related covenants; • agreements or covenants containing cartel provi - sions (ie, provisions in agreements or covenants that have the purpose, effect or likely effect of price fixing, restricting output or market allocating); • misuse of market power; and • resale price maintenance. Claims for damages (though not exemplary damages), and injunctive and/or declaratory relief can be brought for contraventions of Section 47 of the Commerce Act in relation to prohibited mergers or acquisitions. The High Court also has jurisdiction to make other remedial orders, including: • varying or cancelling contracts entered into in contravention of the Commerce Act or containing provisions which would contravene the Commerce Act if given effect to, and/or requiring any person who is party to the contract to make restitution or pay compensation to any other person who is party to the contract; and • varying covenants given in contravention of the Commerce Act or where enforcement of the terms of the covenant would contravene the Commerce Act, and/or requiring any party to a covenant to make restitution or pay compensation to any other person who would be bound by or entitled to the benefit of the covenant but for the operation of Section 28 (4) (which provides that covenants that have the purpose, effect or likely effect of substan - tially lessening competition in a market are unen - forceable).
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