NEW ZEALAND Law and Practice Contributed by: Ellie Harrison and Jasper Fawcett, Wynn Williams Lawyers
8. Damages 8.1 Damages: Assessment, Passing On and Interest Assessment of Damages Compensatory and/or exemplary damages are availa - ble in private antitrust cases, but no New Zealand court has yet awarded damages in a private antitrust case. In light of this, it is not currently clear what approach the New Zealand courts take in assessing quantum of damages in an antitrust action. Sections 82 (relating to damages for restrictive trade practices and 84A (relat - ing to damages for anti-competitive business acqui - sitions) of the Commerce Act 1986 refer generally to “loss or damage” caused by the defendant and does not contain any limits on the kinds of loss or damage that may be recovered, but it can be expected that the Court will focus on whether there is a causal con - nection between the relevant conduct found to be in contravention of the Commerce Act and the loss or As noted in 2.5 Pass-On Defence , there is no statu- tory 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. Interest damage claimed. Pass-On Defence Interest on damages awarded in civil proceedings may be claimed, and is dealt with under the Interest on Money Claims Act 2016. It is important to note that the Interest on Money Claims Act 2016 contains strict procedural requirements, and if a claimant fails to plead the provision of that Act under which interest is claimed and the period for which interest is claimed (among other things), the Court will not have jurisdic - tion to award interest.
Following evidence in chief, the witness may be cross examined by all other parties. Counsel for other par - ties have a duty to question the witness on matters that are significant to the relevant issues in the pro - ceedings and that contradict the evidence of the wit - ness. After cross-examination, there is an opportunity for the witness to be re-examined by the party who called them. 7.2 Expert Witness Role and Procedure Expert evidence is a standard feature of antitrust liti - gation in New Zealand, and the courts have generally found expert economic evidence to be of consider - able assistance. Opinion by an expert witness on a matter relevant to the subject of their expertise will be admissible if it will be substantially helpful in understanding the evidence or in determination of relevant issues in the proceed - ings. The expert witness will ordinarily provide a brief of evi - dence to be disclosed to the other party (or parties) on a timetabled date set by the court, including any doc - uments referred to. The procedure of hearing expert evidence will usually follow the standard approach to hearing evidence detailed in the previous section, although there is the possibility of utilising the “hot tub” procedure, which can cut through the volume of evidence that may otherwise be heard and helps to focus on the nub of the issues in dispute between the experts. As noted in 2.2 Courts , the Court can appoint expert “lay members” to sit as additional members of the Court and hear and determine the proceedings alongside the Judge. Economist lay members can assist the Court significantly in assessing the eco - nomic evidence. An expert witness has an overriding duty to assist the court. They are not an advocate for the party who engaged them. Expert witnesses must comply with a code of conduct as set out in Schedule 4 of the High Court Rules 2016.
9. Liability and Contribution 9.1 Joint and Several Liability
Under the common law in New Zealand, defendants are jointly and severally liable where they have togeth - er caused indivisible loss. This ensures an injured party is compensated in full for its loss, even if one
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