Bunnings Limited v Commerce Commission - [2020] NZHC 742

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-0315

CIV 2018-404-2098

[2020] NZHC 742

IN THE MATTER OF Criminal Procedure Act 2011

BETWEEN

BUNNINGS LIMITED

Applicant

AND

COMMERCE COMMISSION

First Respondent

MITRE 10 (NEW ZEALAND) LIMITED

Second Respondent

CRI 2018-404-180

IN THE MATTER OF

The Fair Trading Act 1986

BETWEEN

COMMERCE COMMISSION

Prosecutor/Respondent

AND

BUNNINGS LIMITED

Defendant/Applicant

Hearing: 4 March 2020

Appearances:

J E Hodder QC and T J A Lindsay for Applicant

J C L Dixon QC, I M Brookie for First Respondent/Respondent L C A Farmer for Second Respondent

Judgment:

9 April 2020

JUDGMENT OF DUFFY J

This judgment is delivered by me on 9 April 2020 at 3.00 pm
pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

BUNNINGS LTD v COMMERCE COMMISSION [2020] NZHC 742 [9 April 2020]

[1] These two proceedings were heard together. One was an appeal brought by Bunnings Limited (Bunnings) against a pre-trial ruling of Judge Cunningham on the admissibility of evidence against Bunnings in a prosecution brought by the Commerce Commission (the Commission) under the Fair Trading Act 1986.1 The other was also brought by Bunnings and is a judicial review of the decision Judge Cunningham made in relation to a witness summons relevant to this prosecution.

[2] The Commission appears as respondent and second defendant. Mitre 10 New Zealand Limited (Mitre 10) is a registered company that appears as third defendant in the judicial review proceeding. It was joined as a party in the judicial review proceeding because it has an interest in the decision Judge Cunningham made on the witness summons.

[3] On 17 December 2019, I delivered judgments on both proceedings.2 Bunnings now applies for recall of part of those judgments; the effect of which would entail a wholesale revisiting of the arguments heard at the hearing. The application is opposed by the Commission and by Mitre 10.

[4] Because the recall application is brought in respect of part of the judgments in both the criminal appeal and the judicial review it engages principles applicable to both jurisdictions. Recall of civil judgments proceeds under r 11.9 of the High Court Rules 2016 and the case-law thereunder.3 There are no statutory rules relating to recall of criminal judgments in this Court. Thus in the criminal jurisdiction, recall proceeds under either the Court’s inherent jurisdiction, where that is engaged,4 or where this Court, when sitting on appeal, exercises a statutory jurisdiction under the inherent powers available to such courts.5

1      The appeal is brought under s 215 of the Criminal Procedure Act 2011.
2      Commerce Commission v Bunnings Limited [2019] NZHC 3340.
3      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC); Nottingham v Real Estate Agents Authority [2017] NZCA 145; Unison Networks Limited v Commerce Commission [2007] NZCA 49.
4      See discussion in R v Dodd [2019] NZHC 667 at [9]-[12] citing Mafart v Television New Zealand [2006] NZSC…

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.

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Details

Case: [2020] NZHC 742
Decision Date: 9 April 2020

CaseChat Overview and Summary

This case involves proceedings brought by Bunnings Limited (Bunnings) against the Commerce Commission (the Commission) under the Fair Trading Act 1986 and the Criminal Procedure Act 2011. The proceedings concern the admissibility of evidence against Bunnings in a prosecution brought by the Commission. Mitre 10 New Zealand Limited (Mitre 10) was also joined as a party in the judicial review proceedings due to its interest in the decision made by Judge Cunningham on a witness summons. Bunnings applied for recall of part of the judgments delivered by the Court on both the criminal appeal and the judicial review, which the Commission and Mitre 10 opposed. The grounds for recall were that the Court had misapprehended crucial facts, resulting in an incorrect decision on the admissibility of evidence. The Court considered whether there was a proper basis for recall of the judgments and whether the respective judgments on the criminal appeal and the judicial review should be recalled. The Court found that Bunnings had not established the factual foundations on which its arguments were based, and therefore, there was no basis for recall. The Court concluded that if Bunnings wanted to challenge the judgments, appeal was the proper remedy. The applications for recall of the judicial review judgment and the criminal appeal judgment were denied.

The final orders of the Court were that the applications for recall of the judicial review judgment and the criminal appeal judgment were denied, and the parties had leave to file memoranda as to costs on the application for recall of the judicial review judgment.

Orders