NEW ZEALAND Law and Practice Contributed by: Ellie Harrison and Jasper Fawcett, Wynn Williams Lawyers
[2020] NZSC 126), both opt-in and opt-out orders are available in representative actions in New Zealand. 4.3 Direct/Indirect Purchasers In principle, claims may be brought by direct and indi - rect purchasers that can establish that they suffered loss or damage as a result of the contravention of the Commerce Act 1986. However, while it has been assumed that indirect purchasers have the right to sue, this has not been finally determined by the New Zealand courts. 4.4 Class Certification There is no formal class certification requirement in New Zealand, although the New Zealand Law Com - mission has recommended that any new class actions regime in New Zealand should require a proceeding to be certified in order to proceed as a class action. 5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law The purpose of the Commerce Act 1986 is to promote competition in markets for the long-term benefit of consumers within New Zealand and, in general terms, the Commerce Act will apply to anti-competitive con - duct in New Zealand by New Zealand persons or for - eign persons. Section 4 of the Commerce Act 1986 provides further that the Act extends to conduct outside New Zea - land by any person resident or carrying on business in New Zealand, to the extent that the conduct affects a market in New Zealand. The Commerce Act also deems that: • a person will have engaged in conduct in New Zealand if any act or omission forming part of the conduct occurs in New Zealand; and • a person (person A) engages in conduct in New Zealand if another person (person B) engages in conduct in New Zealand, and the conduct of person B is deemed under Section 90 of the Com - merce Act to be the conduct of person A. There are also certain special rules, as follows.
• Section 36A (misuse of market power in trans- Tasman markets) extends to conduct outside New Zealand engaged in by any person resident or carrying on business in Australia to the extent that such conduct affects a market in New Zealand (except markets exclusively for services). • Sections 47A to 47D regulate acquisitions by overseas persons, although the regime is driven by applications made by the New Zealand Commerce Commission (rather than private plaintiffs). The Supreme Court took a strict view of the territorial application of the Commerce Act 1986 in P oynter v Commerce Commission [2010] NZSC 38, [2010] 3 NZLR 300, although the appropriateness of this deci - sion has been called into doubt by various commenta - tors as inconsistent with the policy of the Commerce Act and the realities of international commerce. Sec - tion 4 of the Commerce Act has since been amended to encompass a more expansive definition of territorial application. However, it can be expected that the New Zealand courts will be cautious to ensure that foreign - ers are provided with appropriate opportunity to con - test jurisdiction and when considering the application of the Commerce Act extraterritorially. 6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure In civil cases, including private antitrust cases, discov - ery is governed by the High Court Rules 2016. Initial Disclosure Generally, a party to litigation must first comply with initial disclosure obligations. After filing a pleading (statement of claim, statement of defence, etc), and at the same time as service, a party must serve on the other parties all documents referred to in the pleading and any additional principal documents in the filing party’s control that the party has used when preparing the pleading and on which that party intends to rely at
the trial or hearing. Discovery Orders
A Judge will then make either standard or tailored dis - covery orders. Generally, these orders will be agreed
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