NEW ZEALAND Law and Practice Contributed by: Ellie Harrison and Jasper Fawcett, Wynn Williams Lawyers
causes of action often tagged on to broader claims) particularly in recent years. Decisions of foreign national competition authorities and overseas courts, particularly in other common law jurisdictions, will often be persuasive authority in anti - trust cases heard by the New Zealand courts. 2.4 Proof In accordance with general common law principles, in New Zealand the legal and evidential burdens of proof rest with the plaintiff as the party bringing the case. The applicable standard of proof in private antitrust litigation is the normal civil standard of proof in New Zealand, requiring proof on the balance of probabili - ties. The burden may shift to the defendant in some circumstances, particularly where the defendant seeks to invoke a statutory defence (eg, the collabo - rative activity and vertical supply contract exceptions to cartel conduct). 2.5 Pass-On Defence There is no statutory pass-on defence and, given the limited amount of private antitrust litigation to date in New Zealand, the availability of a pass-on defence has not yet been otherwise considered by the New Zealand courts. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations While civil limitation periods are generally dealt with in the Limitation Act 2010 in New Zealand, private antitrust claims under the Commerce Act 1986 are subject to specific limitation periods. Claims for damages for contraventions of Part 2 of the Commerce Act (restrictive trade practices) may be brought only within three years after the matter giv - ing rise to the contravention was discovered or ought reasonably to have been discovered. Such claims are subject to a long-stop limitation of ten years after the matter giving rise to the contravention. Claims for damages for contravention of Part 3 of the Commerce Act (anti-competitive mergers and acquisi -
tions) are subject to an absolute three-year limitation period. There is no allowance for discoverability. 3.2 Typical Length of Private Antitrust Litigation Private antitrust cases typically take several years to be determined in New Zealand and may then be sub- ject to appeals. The time taken will of course depend on the complexity of the case in question and the availability for fixtures in the particular High Court reg - istry (location) in which the claim is filed, with certain registries working through a backlog of civil claims. It is not uncommon for a civil trial to be scheduled two or more years in advance, and, in complex cases, scheduling may not take place until discovery is well underway (which itself can take many months). New Zealand does not currently have a statutory regime for class actions. The New Zealand Law Com - mission has recommended the enactment of a regime, but its implementation is likely some time away. In the absence of a specific statutory regime, class actions are currently addressed under the representative action procedure in the High Court Rules 2016. That rule (Rule 4.24) provides that one or more per - sons may sue or be sued on behalf of, or for the ben- efit of, all persons with the same interest in the subject matter of a proceeding: • (a) with the consent of the other persons who have the same interest; or • (b) as directed by the Court on an application made by a party or an intending party to the proceeding. Most representative actions are brought under Rule 4.24 (b). 4.2 Opting In or Out 4. Class and Collective Actions 4.1 Statutory Basis Since the Ross v Southern Response Earthquake Services litigation ( Ross v Southern Response Earth- quake Services [2019] NZCA 431, (2019) 25 PRNZ 33 and Ross v Southern Response Earthquake Services
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