Andrews v Commerce Commission - [2024] NZCA 213

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA705/2023
[2024] NZCA 213

BETWEEN	BRENT IAN ANDREWS Applicant
AND	COMMERCE COMMISSION Respondent

Court:	French, Muir and Campbell JJ
Counsel:	Applicant in person B Hamlin and C A Richardson for Respondent
Judgment: (On the papers)	5 June 2024 at 11.45 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

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REASONS OF THE COURT

(Given by Muir J)

Introduction

Mr Brent Andrews applies to bring a second appeal against conviction and sentence in respect of two charges which initially came before Judge Harrop in the District Court:[1]
(a)Failing, without reasonable excuse, to provide information and documents in accordance with a notice issued under s 98(1)(a) and (b) of the Commerce Act 1986 contrary to s 103(1)(a) of that Act.
(b)Failing, without reasonable excuse, to attend an interview in accordance with a notice under s 98(1)(c) of the Commerce Act contrary to s 103(3)(a).
[1]Commerce Commission v Andrews [2023] NZDC 9206 [verdict judgment]; and Commerce Commission v Andrews [2023] NZDC 14576 [sentencing notes].

On 30 October 2023 his subsequent appeal to the High Court was dismissed.[2]
[2]Andrews v Commerce Commission [2023] NZHC 3035 [first appeal judgment].
His application for leave to bring a further appeal focuses exclusively on the second of these two convictions. He says he cannot be convicted under s 103(3) because the section cross-references to a non-existent section—s 98(c)—when the correct reference should be s 98(1)(c).

Background

The applicant was a director of Premodealz Ltd (Premodealz), a mobile trader undertaking consumer lending. The convictions relate to the applicant’s conduct during an investigation of Premodealz by the Commerce Commission (the Commission).
The Commission had concerns about Premodealz’s compliance with the Credit Contracts and Consumer Finance Act 2003. On 21 July 2021 it issued a statutory notice to the company under s 98(1)(a) and (b) of the Commerce Act to produce information and documents to the Commission. Premodealz did not comply with that notice. It had earlier provided some documents, but its response did not comply with the request and was considered inadequate by the Commission.
Because Mr Andrews did not comply with the notice, the Commission undertook further inquiries which indicated that, despite Mr Andrews’ advice that Premodealz was no longer trading, a number of borrowers were continuing to make payments to it. On 18 May 2022 it therefore issued a statutory notice to the applicant under s 98(1)(c) of the Commerce Act requiring attendance at an interview held at the Commission’s office. Mr Andrews advised the Commission by email that he would not attend the interview and he did not do so.
The Commission then brought the two charges previously referred to. In relation to the first of these, Mr Andrews was alleged to have been a party pursuant to s 66 of the Crimes Act 1961 to Premodealz’s failure to comply with the notice.
Following conviction and sentence Mr Andrews appealed to the High…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrews v Commerce Commission

Details

AGLC: Andrews v Commerce Commission [2024] NZCA 213
Case: [2024] NZCA 213
Decision Date: 5 June 2024 at 11.45 am

CaseChat Overview and Summary

The case of Andrews v Commerce Commission was heard in the High Court of Australia. The primary dispute revolves around the interpretation of a statutory provision within the Commerce Act 1992, specifically concerning the powers of the Commerce Commission to require individuals to supply information, documents, or to give evidence. The case raises questions about the Commission's ability to compel individuals to appear before it and the legislative intent behind certain provisions. The legal issues before the court included the proper interpretation of section 98(1)(c) of the Act and whether the Commission's powers under this section were correctly referenced in section 103 of the Act. The court was also required to determine if the legislative history supported a particular interpretation of these provisions and whether there were any drafting errors that needed correction.

The High Court examined the legislative history to understand the evolution of section 98 and the subsequent renumbering of its subsections. The court considered the legislative intent behind the creation of section 103(3), which imposes penalties for failing to comply with a Commission requirement to appear before it. The court determined that the intended purpose of section 103(3) was to establish an offence for non-compliance with a Commission requirement, and that the only relevant requirement under the Act was found in section 98(1)(c). The court applied principles of statutory interpretation, including the need to achieve the purpose of the statute, to correct what it found to be a drafting error. The court held that the reference in section 103(3) to section 98(c) was an error, and it should be read as a reference to section 98(1)(c).

In its reasoning, the High Court found that the Commission’s power to require an individual to appear before it was correctly established under section 98(1)(c) of the Act. The court corrected the reference in section 103(3) to reflect this, thereby aligning the statutory language with the legislative intent. The court held that the legislative history supported this interpretation, as the provision had existed in a similar form prior to its renumbering. By correcting the reference, the court ensured that the statutory framework operated as intended by Parliament. The outcome of the case was that section 103(3) should be read as imposing penalties for non-compliance with a requirement to appear before the Commission under section 98(1)(c), rather than under a non-existent section 98(c).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As the High Court acknowledged, there is no s 98(c). The relevant provision is s 98(1)(c) which provides:98 Commission may require person to supply information or documents or give evidence (1) Where the Commission considers it necessary or desirable for the purposes of carrying out its functions and exercising its powers under this Act, the Commission may, by notice in writing served on any person, require that person—…(c) to appear before the Commission at a time and place specified in the notice to give evidence, either orally or in writing, and produce any document or class of documents specified in the notice. The legislative history establishes that this error occurred in the following way:(a)Between 1990 and 2017, s 98(c) existed in substantially the same form as s 98(1)(c).(b)Section 98 was amended by the Commerce (Cartels and Other Matters) Amendment Act 2017 (the Amendment Act) to insert s 98(2).[5] That subsection clarified that the Commission’s powers “include the power to investigate whether an exception or exemption from this Act (whether under this Act or any other enactment) applies to a person or to a person’s conduct”.(c)The existing s 98 was then renumbered s 98(1), and s 98(c) became s 98(1)(c).(d)The Amendment Act also amended s 103(4) of the Act to increase the maximum fine available for contraventions of s 103(1), 103(2) and 103(3) from $10,000 for an individual and $30,000 for a body corporate to $100,000 for an individual and $300,000 in any other case.[6] (e)Although s 103 was amended by the Amendment Act, the cross‑reference to s 98(c) was not updated. [5]Commerce (Cartels and Other Matters) Amendment Act 2017, s 29.[6]Section 30. As Burrows and Carter Statute Law in New Zealand notes, New Zealand courts will correct drafting errors both by adding and substituting words to achieve the purpose of an Act.[7] In that context the courts have adopted the approach set out by the House of Lords in Inco Europe Ltd v First Choice Distribution where Lord Nicholls said the court must be satisfied about three things when seeking to correct a drafting error:[8] (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. [7]Ross Carter Burrows and Carter Statute Law in New Zealand (6th Ed, LexisNexis, Wellington, 2021) at 409.[8]Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 (HL) at 592. See for example McAlister v Air New Zealand Ltd [2009] NZSC 78, [2010] 1 NZLR 153 at [96]–[98] per Tipping J; Urlich v Attorney-General [2022] NZCA 38, [2022] 2 NZLR 599 at [62]; and Maangi v R [2017] NZCA 534 at [47]. As to the first of these, we accept the Commission’s submission that s 103(3) has a clear purpose. It was intended to create an offence that applies where a person has been required to appear before the Commission but fail to do so. The only power under the Commerce Act to require a person to appear before the Commission is under s 98(1)(c).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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