Antitrust Litigation 2024 Comparisons

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 Competition 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 enforcement 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 Zealand antitrust jurisprudence.

The kinds of large-scale, private follow-on actions that are common in other jurisdictions have not been a feature 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 proceedings. The New Zealand Law Commission completed a review of class actions and litigation funding in May 2022, recommending the introduction of a statutory class actions regime and various matters to support appropriate litigation funding. The New Zealand 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 priorities. Accordingly, it seems unlikely that large-scale, private follow-on actions will become a significant feature in New Zealand antitrust in the short-to-medium term.

New Zealand antitrust continues to develop, following trends in Australia and globally. Of particular significance 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 application 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 previously made to its own misuse of market power provision. 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-competitive land covenants (anti-competitive agreements that affect how land can be used), which have been identified 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 private actions challenging such covenants will become more prevalent.

More generally, while there has been little activity on the antitrust class action front in New Zealand in relation to antitrust, this may start to change following the New Zealand Law Commission’s recent review of class actions and litigation funding. The Law Commission recognised that the existing procedural rules are not well-designed to support class actions and has recommended the introduction of a fit-for-purpose statutory regime for class actions. Reform in this space may support and encourage antitrust class actions in New Zealand, particularly follow-on class action proceedings, although it seems unlikely that there will be a significant increase in activity in this area in the short-to-medium term.

Private plaintiffs can seek injunctive relief, declaratory relief, and damages or exemplary damages in relation to the restrictive trade practices and prohibited mergers 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 the following:

• 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 provisions (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 substantially lessening competition in a market are unenforceable).

New Zealand does not have a specialist court or tribunal 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 additional 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 disputes valued at NZD2 million or more and proceedings of a commercial character that are of sufficient private or public importance to justify consideration by a panel Judge. Private antitrust litigation will usually justify appointment of a commercial panel Judge.

As noted, 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 decisions are not binding on the Courts. The Commission enforces contraventions of the Commerce Act by taking proceedings in the High Court, and its decisions (eg, clearances or authorisations relating to restrictive 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 litigation in New Zealand, with the most significant antitrust cases in New Zealand having involved the Commission as either the plaintiff or defendant/respondent. The Commission may seek to intervene in private antitrust litigation, which has historically been of relatively limited significance in New Zealand (with antitrust 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 antitrust cases heard by the New Zealand courts.

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 probabilities. The burden may shift to the defendant in some circumstances, particularly where the defendant seeks to invoke a statutory defence (eg, the collaborative activity and vertical supply contract exceptions to cartel conduct).

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.

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 giving rise to the contravention was discovered or ought reasonably to have been discovered, and is 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 acquisitions) are subject to an absolute three-year limitation period. There is no allowance for discoverability.

Private antitrust cases typically take several years to be determined in New Zealand, and may then be subject 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 registry (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 Commission 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 persons may sue or be sued on behalf of, or for the benefit 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).

Since the Ross v Southern Response Earthquake Services litigation (Ross v Southern Response Earthquake Services [2019] NZCA 431, (2019) 25 PRNZ 33 and Ross v Southern Response Earthquake Services [2020] NZSC 126), both opt-in and opt-out orders are available in representative actions in New Zealand.

In principle, claims may be brought by direct and indirect 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.

There is no formal class certification requirement in New Zealand, although the New Zealand Law Commission 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.

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 conduct in New Zealand by New Zealand persons or foreign persons.

Section 4 of the Commerce Act 1986 provides further that the Act extends to conduct outside New Zealand 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 Commerce 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 Poynter v Commerce Commission [2010] NZSC 38, [2010] 3 NZLR 300, although the appropriateness of this decision has been called into doubt by various commentators as inconsistent with the policy of the Commerce Act and the realities of international commerce. Section 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 foreigners are provided with appropriate opportunity to contest jurisdiction and when considering the application of the Commerce Act extraterritorially.

In civil cases, including private antitrust cases, discovery 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 discovery orders. Generally, these orders will be agreed between the parties and submitted to the Court for approval.

Standard discovery requires each party to disclose documents in their control and that are relevant to the proceedings (that is, documents on which the party relies, documents that adversely affect the party’s own case or another party’s case, and documents that support another party’s case). There is, however, a presumption of tailored discovery in instances where the interests of justice require it (for example, where the costs of standard discovery would be disproportionately high in light of the matters at issue in the proceedings, or where the value of the claim exceeds NZD2.5 million).

Under tailored discovery, the parties agree categories of documents likely to be relevant to the matters in issue in the claim, the discovery of which would be proportionate. Parties are also required to discover any documents they become aware of that are relevant to the case, but do not fall within a tailored discovery category (but they are not required to search beyond the categories). Given the complexity that will ordinarily be involved in private antitrust litigation, tailored discovery is likely to apply.

Solicitors acting for parties in a proceeding are subject to an obligation to take reasonable care to ensure that the party they act for understands the party’s obligations under the discovery order and fulfils those obligations.

The parties must undertake a reasonable search for documents within the scope of the discovery order (in accordance with the terms of the discovery order), and each party to whom the order applies must file and serve an affidavit of documents outlining the steps taken to fulfil the discovery obligations and including a schedule of documents identified. All documents that are not subject to privilege or confidentiality must be disclosed to the other parties. Parties remain under a continuing obligation throughout the proceedings to give discovery and offer inspection of relevant documents, even if that party has filed and served an affidavit of documents.

Communications between a party and their legal adviser that were intended to be confidential and made in the course of and for the purpose of seeking and obtaining professional legal services are privileged. Communications or information made, received, compiled, or prepared for the dominant purpose of preparing for proceedings or apprehended proceedings are also privileged.

Parties are not required to disclose privileged documents in either initial disclosure or discovery more generally and, where documents contain both privileged and non-privileged information, a party may redact the privileged information. Documents for which privilege is claimed need to be listed in the schedule attached to the affidavit of documents, but may be grouped (for example, by referring to all documents of a certain type and within a date range for which solicitor-client privilege is claimed).

The New Zealand Commerce Commission administers a Cartel Leniency and Immunity Policy. Leniency and/or settlement agreements with the Commission are not necessarily protected from disclosure, although they may be subject to confidentiality restrictions. The Commission does, however, operate a “paperless” process whereby an application for leniency or immunity can be made, and a marker or immunity/leniency can be granted verbally.

The ordinary methods of giving evidence in civil proceedings in New Zealand are as follows:

• orally in the courtroom;
• by affidavit filed in court; or
• by reading a written statement in the courtroom.

Affidavits or written statements may be read into evidence only if they are the personal statement of the witness and do not contain inadmissible evidence. Any of these methods are treated as the witness giving evidence in chief.

Following evidence in chief, the witness may be cross examined by all other parties. Counsel for other parties have a duty to question the witness on matters that are significant to the relevant issues in the proceedings and that contradict the evidence of the witness.

After cross-examination, there is an opportunity for the witness to be re-examined by the party who called them.

Expert evidence is a standard feature of antitrust litigation in New Zealand, and the courts have generally found expert economic evidence to be of considerable 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 proceedings.

The expert witness will ordinarily provide a brief of evidence to be disclosed to the other party (or parties) on a timetabled date set by the court, including any documents 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 economic 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.

Assessment of Damages

Compensatory and/or exemplary damages are available 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 (relating to damages for anti-competitive business acquisitions) 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 connection between the relevant conduct found to be in contravention of the Commerce Act and the loss or damage claimed.

Pass-on Defence

As noted in 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.

Interest

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 jurisdiction to award interest.

Under the common law in New Zealand, defendants are jointly and severally liable where they have together caused indivisible loss. This ensures an injured party is compensated in full for its loss, even if one of the defendants is absent or insolvent. The liability of immunity applicants in separate private antitrust litigation is not limited.

Liable defendants may apply to the Court for contributions from other defendants if they wish for the compensation payable to be apportioned. In practice, only when a defendant is unable to pay does another bear the cost of their share of the loss and plaintiff will never recover more than the full amount awarded by the Court.

Availability of Injunctions

Both interim and permanent injunctions are available for breaches of the Commerce Act 1986. The Commerce Act specifically provides for injunctive relief to restrain a person from engaging in conduct that constitutes or would constitute a contravention of Part 2 (restrictive trade practices) or Part 3 (mergers and acquisitions) of the Commerce Act. Additionally, in relation to anti-competitive business acquisitions, the Court may:

• impose obligations to be observed in the carrying on of any business or the safeguarding of any business or any assets of any business; and
• appoint a person to conduct or supervise the conduct of any business (on such terms and with such powers as may be specified or described in the order), or in another other manner, as it thinks necessary in the circumstances of the case.

The Court may grant injunctions under the Commerce Act to restrain a person from engaging in certain conduct where the Court considers it likely that the person will engage in the conduct if the injunction is not granted, whether or not the person has previously engaged in conduct of that kind, and whether or not there is an imminent danger of substantial damage to any person. The Court may grant injunctions to restrain a person from continuing to engage in certain conduct, or repeating certain conduct, whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind.

Assessment of Whether to Grant Injunctive Relief

In determining whether to grant injunctive relief, the Court will consider whether there is a serious question to be tried and whether the balance of convenience favours the granting of the injunction. The Court will consider the issues and make an assessment of whether the overall justice lies in the particular case.

The key question when considering whether to grant an interim injunction is whether the possible prejudice to the respondent of granting the injunction is outweighed by the prejudice to the public and the applicant if the Court declines to make the order.

In determining whether to grant an interim injunction, the Court is also statutorily directed to give such weight to the interests of consumers or, as the case may be, acquirers, as it deems appropriate in the circumstances of the case.

Damages

The focus is not on whether damages are an adequate remedy, but an applicant is required to file a signed undertaking that they will comply with any order for the payment of damages to compensate the other party for any damage sustained through the injunction. (Notably, under section 88A of the Commerce Act, the Commerce Commission is exempt from giving an undertaking as to damages when applying for an injunction. The Court is also not permitted to take into account that the Commerce Commission is not required to give an undertaking as to damages when considering the Commission’s application.)

Injunctions Without Notice

Injunction can be obtained without notice. An injunction without notice can only be made if it would cause undue delay or prejudice to the applicant to give notice, affects only the applicant, is related to a routine matter, is expressly permitted by an enactment, or if the interests of justice require it. An applicant for an injunction without notice must take all reasonable steps and make all reasonable inquiries to ensure that the application and supporting documents contain all relevant material to the application, including facts that would support the position of another party.

Following Attorney-General v Mobil Oil NZ Ltd [1989] 2 NZLR 649 (HC), it has been understood that arbitration and other alternative dispute resolution is available to determine private Commerce Act 1986 disputes, although arbitral tribunals do not have access to the full range of private remedies under the Commerce Act. Furthermore, if parties were to seek to give effect to an anti-competitive arrangement through arbitration, it could be expected that the matter would be found not to be arbitrable.

Alternative dispute resolution is not mandated under the Commerce Act (aside from negotiate/arbitrate regulation in relation to certain regulated goods and services), but is mandated or enabled by sector-specific legislation. For example: 

• Under the Fuel Industry Act 2020, disputes relating to terminal gate pricing and fixed wholesale contractual terms (including section 19, “Wholesale contractual terms that limit ability of reseller to compete”), must be referred to mediation and then arbitration.
• Under the Grocery Industry Competition Act 2023, suppliers or wholesale customers that are party to a dispute with a regulated grocery retailer may refer the dispute to the dispute resolution scheme provided for under the statute in certain circumstances.

There is no statutory regulation of litigation funding in New Zealand, which has led to uncertainty about the circumstances in which it is permitted. Historically, the New Zealand courts considered that litigation funding offended the torts of champerty and maintenance, but the courts have since moved on from this position and have acknowledged the role that third-party litigation funding plays in facilitating access to justice. The courts now consider the permissibility of litigation funding by considering whether it amounts to an abuse of process. In Waterhouse v Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91, the Supreme Court held that a funding agreement would be an abuse of process if it amounted to an assignment of a cause of action to a third-party funder in circumstances where this was not permissible.

A plaintiff who is funded by a third-party litigation funder is required to disclose the fact that there is a litigation funder, the identity of that litigation funder, and whether or not that funder is subject to the jurisdiction of the New Zealand courts. Courts must also be advised if new funding arrangements are entered into at a later stage of the proceedings.

Costs

The New Zealand High Court Rules 2016 contains a sophisticated costs regime (and the rules of the Court of Appeal and, to a lesser extent, the Supreme Court contain similar costs regimes). The costs are at the discretion of the Court, but costs awards reflect a series of general principles applying to the determination of costs, as follows.

• The party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.
• An award of costs should reflect the complexity and significance of the proceeding.
• Costs are generally to be assessed by applying the daily recovery rate (specified in the High Court Rules) to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application. The High Court Rules sets out the amount of time considered reasonable for steps ordinarily involved in a proceeding, which varies depending on the nature and complexity of the proceeding.
• The appropriate daily recovery rate is intended to be approximately two-thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application.
• The appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved, or on the time actually spent by the solicitor or counsel involved, or on the costs actually incurred by the party claiming costs.
• An award of costs should not exceed the costs incurred by the party claiming costs.
• So far as possible, the determination of costs should be predictable and expeditious.

In certain circumstances, the Court may make an order increasing costs otherwise payable under the High court Rules or imposing an award of indemnity costs in favour of a party. This can occur, for example, in the following situations:

• the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or a step in it; or
• a party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing or defending a proceeding or a step in it.

Equally, the Court may refuse to make an order for costs or may reduce the costs otherwise payable for various reasons.

Expert witness costs and other reasonable disbursements are usually awarded in full against the unsuccessful party.

Security for Costs

The High Court also has the power to order that a party pay security for costs:

• against foreign plaintiffs; or
• if it considers that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff if unsuccessful in the plaintiff’s proceedings.

Appellants must ordinarily pay security for costs to the relevant Court for appeals to the Court of Appeal or Supreme Court.

Costs in Appeals of Commerce Commission Determinations

Finally, although outside the scope of private antitrust litigation, it is important to be aware that there are special costs rules that apply to appeals of Commerce Commission determinations (for example, in relation to clearance and authorisation applications for mergers and acquisitions). If the Commerce Commission unsuccessfully opposes an appeal to the High Court, it generally will not be required to pay costs because it appears to protect the public interest. If the Commerce Commission succeeds in the High Court, but the determination is overturned on second appeal to the Court of Appeal, the Commerce Commission again will generally not be required to pay costs. However, if the Commerce Commission loses in the High Court and then again on second appeal, it will usually be required to pay costs on the second appeal. In all cases in which the Commerce Commission successfully defends a determination, the unsuccessful appellant will usually be required to pay costs.

Final decisions of the High Court in private antitrust cases may be appealed to the Court of Appeal as of right, and such appeals are not limited to questions of law. An appeal must be filed within 20 working days after the date of the decision to be appealed, setting out the grounds of appeal.

Other High Court decisions, for example appeals of interlocutory decisions, require a prospective appellant to firstly obtain leave to appeal. An application for leave to appeal to the Court of Appeal must be made to the High Court within 20 working days after the date of that order or decision. If leave is not granted, an application may be made to the Court of Appeal.

Decisions of the Court of Appeal generally may be appealed to the Supreme Court with leave of the latter court. The Supreme Court will only give leave to appeal if it is satisfied that it is necessary in the interests of justice for the Court to hear and determine the proposed appeal, specifically where:

• the appeal involves a matter of general or public importance;
• a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard; or
• the appeal involves a matter of general commercial significance.

In very limited circumstances, the Supreme Court may hear an appeal directly from the High Court.

While there have been numerous private cases including Commerce Act claims as additional causes of action, private antitrust litigation has not featured significantly in New Zealand to date. It is possible, however, that the changes to New Zealand’s misuse of market power provision may encourage more private antitrust litigation. The authors are aware of at least one private antitrust case currently before the High Court that includes allegations of abuse of market power.

Perhaps of more significance is the potential for antitrust class actions, and in particular follow-on actions, to take hold in New Zealand if the government implements the class action and litigation funding reforms recommended by the New Zealand Law Commission. Such action may be more likely in the misuse of market space than the cartel space, depending on the New Zealand Commerce Commission’s activity in this area following the reforms to the Commerce Act 1986. Reform of the class actions regime will take some time, however, and it seems unlikely there will be a significant increase in activity in this area in the short-to-medium term.

Irrespective of action in the private antitrust litigation space, it can be safely assumed that the Commerce Commission will continue to actively enforce breaches of the Commerce Act in New Zealand, including a specific focus on abuses of market power and anti-competitive land covenants. Enforcement of anti-competitive mergers and acquisitions and cartels will also remain enduring priorities for the Commerce Commission, particularly following the criminalisation of cartel conduct in New Zealand in 2021 and the filing of the first criminal cartel proceedings by the Commerce Commission in late 2023.