Bunnings Limited v Commerce Commission
[2020] NZHC 742
•9 April 2020
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 33, [2006] 3 NZLR 18; Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [29]; Re Lee [2017] NZHC 3263, [2018] 2 NZLR 731 at [29]; Auckland District Court v Attorney-General [1993] 2 NZLR 129 at 348; and Black v Fulcher [1988] 1 NZLR 417.
5 In R v Smith [2003] 3 NZLR 617 the Court of Appeal recognised that as a court of statutory jurisdiction it had inherent power to hear and to set aside determinations made by it that were flawed by errors in breach of natural justice; see also R v Lyon [2019] NZCA 311.
[5] Here the grounds relied on for recall are that in the judgment in the judicial review proceeding:
(a)I misapprehended crucial facts (and Bunnings’ case) because the judgment proceeds on the basis that Mitre 10 provided the “Mitre 10 information”, the subject of the amended witness summons, voluntarily, when it did not; and
(b)When this misapprehension is corrected and Bunnings’ application for judicial review reconsidered on the correct factual basis, that would result in the judicial review being granted and the amended summons to Mr Snowden quashed.
[6] And in the judgment on the criminal appeal against the evidential ruling of Judge Cunningham the grounds of recall are that:
(a)I misapprehended crucial facts (and Bunnings’ case) because the judgment proceeds on the basis that Mitre 10 could produce the underlying comparison evidence on which Mr Snowden gives evidence as to purported result, when that cannot be done; and
(b)When this misapprehension is corrected, and Bunnings’ first appeal is considered on the correct factual basis, that would result in the first appeal being allowed and the Snowden evidence ruled inadmissible.
[7]The Commission and Mitre 10 oppose the application on the grounds:
(a)The threshold for recall is not met; and
(b)There was no misapprehension of crucial facts in the judicial review because information from Mitre 10 was given to the Commission voluntarily; and
(c)There was no misapprehension of crucial facts in the criminal appeal because Mitre 10 can produce the underlying price data comparisons on which Mr Snowden’s proposed oral evidence is reliant.
Relevant law
[8] Here, a civil proceeding has been used to challenge a criminal process. Accordingly, the relevant principles for both jurisdictions will be considered.
[9] The law on recall of civil judgments is well settled. Starting with Horowhenua County Council v Nash (No 2) there is a consistent line of authority that emphasises, (absent correction of a slip, a change of law or counsel failing to refer the Court to a critical authority), the Court has only a residual discretion to recall an unperfected judgment, which is to be exercised only in exceptional circumstances.6 This discretion is to be “exercised with circumspection” and it must not be “seen as a substitute for appeal”.7
[10] The law on recall of criminal judgments has been the subject of more recent focus. In R v Smith the Court of Appeal recognised it had inherent power to recall its own judgments but only in “exceptional circumstances when required by the interests of justice”.8 Such circumstances would only arise:9
…where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available.
[11] The stringency of this approach was summarised in Blick v R10 and recently affirmed in R v Lyon.11
Bunnings’ arguments
6 Horowhenua County Council v Nash (No 2) [1968] NZLR 632 (SC); Ngahuia Reihana Whanau Trust v Flight CA 23/03 26 July 2004 at [3]; Bidois v Leef [2015] NZCA 307 at [4]; Seimer v Judicial Conduct Commissioner [2014] NZCA 414 at [4].
7 Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [9].
8 R v Smith [2003] 3 NZLR 617 at [36].
9 Above at [36].
10 Blick v R [2012] NZCA 373 at [27].
11 R v Lyon [2019] NZCA 311 at [27].
[12] Bunnings have identified examples where the Court has acknowledged its judgment was based on a misapprehension that warranted correction through using the residual discretion to recall. In Murren v Schaeffer the Court of Appeal recalled a costs order on the ground it had operated under a significant misunderstanding of the true situation.12 At [19] the Court stated:
Recall in such circumstances is only possible if the court is satisfied that the situation falls within the third of the Horowhenua County Council v Nash (No 2) categories – namely, a very special reason justifies it. We recognise that it must be a rare case when it is exercised in relation to a costs order. That said, having carefully reviewed the material filed for the hearing, and the submissions made at the hearing, we are very clear the court was misled. We do not say that was the intention, but it was the effect, and we consider an order has been incorrectly made consequent upon that. We are uncomfortable with the situation and consider justice requires it to be corrected.
(Footnotes omitted)
[13] Also, in Munro v Gladvale Farms Ltd Heath J recognised that recall could be used to correct a judgment that was the result of a Judge overlooking a material factor:13
[14] In my view, a recall application must raise a material issue on which it would be unjust for the parties to be put to the cost and trouble of appeal, when the issue is one more appropriately addressed by the first-instance Judge. Such a situation will arise in cases in which a Judge acknowledges that he or she overlooked a material factor in reaching a particular decision. Recall, in that situation, avoids the risk that an appeal might be allowed and remitted to the trial Judge for reconsideration of the point in issue, at unnecessary further cost to the parties. Such circumstances, in my judgment, constitute a “very special reason” for exercising the recall jurisdiction, to adopt the language employed by Wild CJ in Horowhenua County.
(Footnotes omitted)
[14] The essence of Bunnings’ argument for recall of that part of the judgment dealing with the judicial review proceeding is that the judicial review decision is based on a factual misapprehension: namely, that Mitre 10 supplied evidential material to the Commission voluntarily. Bunnings argues that its case was based on “the fact of the non-voluntary provision of material provided by Mitre 10 in response to the Summons” and from this Bunnings argues that the summons was an “illegitimate
12 Murren v Schaeffer [2019] NZCA 34 at [12].
13 Munro (as trustees of the Hillpoint Family Trust) v Gladvale Farms Ltd [2017] NZHC 2692.
discovery exercise”. Bunnings contends that “if the “voluntary” assumption in the judgment’s [39] is removed, that objection remains undiminished.”
[15] Bunnings’ argument for recall of that part of the judgment dealing with the criminal appeal is that the decision is based on a factual misapprehension because there was a failure to recognise that Bunnings relied on Mitre 10’s inability to provide the evidence of the data comparisons made in 2015/2016, which underlie the evidence to be given by Mr Snowden. Because the judgment included the finding that the admissibility of Mr Snowden’s testimony was dependent upon him producing the data comparisons made in 2015/2016, Bunnings’ position is that if Mr Snowden is unable to do so, then his testimony would be excluded as well.
[16] Bunnings contends that the above factual misapprehensions resulted in the Court failing to address its legal arguments.
[17] Bunnings submits that the above errors are of the kind that warrant the Court recalling the judgments.
Arguments of the Commission and Mitre 10
[18] The Commission and Mitre 10 oppose the recall application. First, they argue that Bunnings cannot meet the high threshold for recall.
[19] Secondly, they argue that the judicial review part of the judgment is not based on any factual misapprehension. They contend that the evidential material that Mitre 10 provided to the Commission was provided voluntarily.
[20] Thirdly, they reject Bunnings’ argument in relation to the criminal appeal that Mitre 10 is unable to provide the data comparison evidence on which Mr Snowden’s proposed testimony is reliant.
Discussion
[21] As can be seen from the summary account of the parties’ arguments the applicant and the respondents are poles apart both in relation to whether there is a
proper basis for recall of the judgments, and in relation to the two substantive issues determined by each judgment: namely, (a) whether production of Mitre 10’s original data comparison material is still possible (the criminal appeal point); and (b) the manner in which certain data comparison material came to the Commission (the judicial review point).
[22] Here, both applications need to be viewed in light of the fact Bunnings and the Commission have each filed an appeal against the judgments. Bunnings’ grounds of appeal against the judgments cover much the same ground as the application for recall. Thus, Bunnings has already commenced a more available process for challenging the findings it seeks to impugn. Further, the Commission is appealing against the criminal appeal judgment’s finding that Mr Snowden cannot give oral testimony, if he does not also produce the data comparison material. If the Commission succeeds with its appeal this will mean that admission of Mr Snowden’s testimony will no longer be dependent upon him producing the data comparison material. This outcome would make recall of the criminal appeal judgment otiose. For these reasons alone I consider that the arguments Bunnings seeks to have resolved by recall can more readily be resolved by appeal. However, I consider there are additional reasons relating to the respective judgments on the criminal appeal and the judicial review that weigh against recall.
[23]I propose to deal with the recall of the judicial review judgment first.
Judicial review recall
[24] One matter on which the parties are seemingly agreed is that the recall application falls for consideration under the “very special reason” category (the third category) for exercising the recall jurisdiction that was identified in Horowhenua County v Nash (No 2).14 However, recall on the basis of the third category in Horowhenua County v Nash is rare.15 Recall has never been a substitute for appeal.
14 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
15 Ngahuia Reihana Whanau Trust v Flight CA 23/03, 26 July 2004; and Nottingham v Real Estate Agents Authority [2017] NZCA 145.
[25] I do not accept Bunnings’ submission that this case is within the “very special reason[s]” category because it has similarities with Murren v Schaeffer and Munro v Gladvale Farms Ltd. In my view those cases are very different from the present.
[26] Murren v Schaeffer is a case where the Court of Appeal acknowledged it acted under a misapprehension of the true circumstances. Munro v Gladvale Farms Ltd was an application to recall a judgment on an appeal against an arbitral award. The nature of the judgment is relevant because there was no appeal as of right against it. Second tier appeals against arbitral awards require leave and the grounds for granting leave are limited and do not include error correction.16 In Munro v Gladvale Farms Ltd Heath J expressed the usual judicial reservations about recall.17 However, he went on to recognise that the circumstances before him fell within the third category of Horowhenua County v Nash (No 2) because he was satisfied that he had misapprehended certain material facts and issues requiring his decision.
[27] Here, I do not consider I have misapprehended any material facts or issues. The judgment I gave on the judicial review is based on my interpretation of the legal effect of pleaded circumstances that were not disputed in the relevant pleadings. To understand this requires an analysis of the relevant pleadings
[28] First, in its statement of claim Bunnings does not expressly plead the circumstances that it contends amount to the data comparison material being supplied under compulsion of summons; this is something that is obvious from its statement of claim. Yet the existence of such circumstances necessarily underlies Bunnings’ legal argument that the Commission’s use of the summons process was unlawful.
[29] Secondly, Bunnings pleads a series of allegations which cover the circumstances leading up to the hearing before Judge Cunningham and then cover the steps Bunnings took after delivery of her judgment, followed by the legal grounds on which the judicial review claim relies.
16 Arbitration Act 1996, sch 2, cl 5(2); leave to appeal shall only be granted where the determination of a question of law could substantially affect the rights of one or more of the parties. See also Gold & Resource Developments (NZ) Ltd v Doug Hood Ltd [2000] 3 NZLR 318 (CA) at [52] – [55].
17 Munro (as trustees of the Hillpoint Family Trust) v Gladvale Farms Ltd [2017] NZHC 2692 at [13].
[30] At [29] of the statement of claim (which alleges circumstances occurring before the hearing before Judge Cunningham) Bunnings pleads that the “Commission consulted Mitre 10 and procured a witness summons on Mr Snowden (the Snowden summons) requiring that he produce to the District Court”:
inter alia, …all documents and data relating to the price comparison information conducted by Mitre 10 from 1 June 2015 to 1 May 2016 comparing Mitre 10’s prices with Bunnings … prices (the data comparison information).
[31] In its statement of defence, the Commission admits it procured such a summons on that date and further pleads that the summons was issued by the District Court on 13 December 2017, sent to the Commission on 15 December 2017 and served on the witness (Mr Snowden) on 18 December 2017. 18 Mitre 10 makes much the same admissions.19
[32] At [31] of the statement of claim Bunnings pleads that it filed an application to set aside the Snowden summons on 19 January 2018. Bunnings and Mitre 10 admit this.20
[33] At [32] of the statement of claim Bunnings pleads that Mitre 10 applied to amend the Snowden summons. The Commission and Mitre 10 admit this.21 At [34] of the statement of claim Bunnings pleads it opposed the amendment application by Mitre 10. Both Bunnings and Mitre 10 admit this.22
[34] At [35] of the statement of claim Bunnings pleads that on 6, 7, 8 and 9 March 2018 Judge Cunningham in the District Court heard Bunnings, the Commission and Mitre 10 on matters including the Bunnings’ application to set aside the Snowden summons and Mitre 10’s application to amend the Snowden summons. The Commission and Mitre 10 admit this.23
18 See [29] of the Commission’s statement of defence.
19 See [29] of Mitre 10’s statement of defence.
20 See [31] of the statements of defence of the Commission and Mitre 10.
21 See [32] of their statements of defence.
22 See [34] of their statements of defence.
23 See [35] of their statements of defence.
[35] Then at [36] of the statement of claim Bunnings pleads that Judge Cunningham delivered a decision on 1 August 2018 declining Bunnings’ application to set the Snowden summons aside and granting Mitre 10’s application to amend the Snowden summons. The Commission and Mitre 10 admit this.24
[36] After this the statement of claim goes on to refer to the various steps Bunnings took to bring the matter to this Court by appeal and judicial review.25 Then Bunnings sets out its legal grounds for judicial review alleging in its first ground of review at [42], Judge Cunningham made errors of law in declining to set the Snowden summons aside and alleging in the second ground of review, at [44], that the Judge erred in law by allowing Mitre 10 standing to address the Court on matters relating to Bunnings’ application to set the Snowden summons aside.26
[37] At [6](d) of the statement of defence Mitre 10 positively pleads that “Mitre 10’s market research demonstrated that Mitre 10 had lower prices than Bunnings on a range of products. As a result, and given the Commission’s earlier warning, Mitre 10 approached the Commission about Bunnings’ continued use of its “lowest price” tagline”.
[38] In its reply Bunnings specifically addresses Mitre 10’s positive pleading27 by denying it and further stating that “as at both the date of the Snowden statement (30 October 2017)28 and the date of the March 2018 hearing, no such market research had been disclosed by Mitre 10 to the Commission or by the Commission to Bunnings”.29 Thus, on Bunnings’ account, Mitre 10 had disclosed nothing to Bunnings in the time up to and at the District Court hearing date.
[39] At [29](b) of Mitre 10’s statement of defence it pleads that it advised the Commission that “Mr Snowden was amenable to being summonsed insofar as its confidentiality concerns could be addressed in that context, but says that the Commission’s decision to procure a witness summons was the Commission’s alone”.
24 See [36] of their statements of defence.
25 See [37] to [39] of the statement of claim.
26 The third ground of review was not pursued before me.
27 See at [6](d) of the statement of defence of Mitre 10.
28 See Bunnings’ statement of claim [20].
29 See [6] of Bunnings’ reply to Mitre 10’s statement of defence.
Bunnings denies this in its reply to Mitre 10’s statement of defence and positively alleges that “Mitre 10 proposed to the Commission that it consider applying for the issuance of a summons to ascertain the admissibility of the Snowden statement, and to obtain the documents underpinning the Snowden statement”.
[40] The above allegations address how the Snowden summons came about and there is little dispute between the parties. One point of difference between Mitre 10 and Bunnings, that is more illusory than real, is that Mitre 10 contends the decision to issue a summons was made by the Commission alone whereas Bunnings contends Mitre 10 proposed the Commission issue a summons, which is a step removed from who made the decision to issue the summons. There is no dispute the original summons was issued to Mr Snowden and required him to attend the District Court at the relevant time for the March 2018 hearing dates and to produce the material described in the summons to the Court.
[41] The parties were substantially agreed at the hearing before me that Mr Snowden was present at the District Court in March 2018 with some or all of the material sought by the Snowden summons. However, given Mitre 10 opposed the making of the Snowden summons in its original form and was seeking it be amended to a more restricted scope it seems no material was produced in Court by Mr Snowden during the hearing. This is consistent with the parties’ actions and with the reply filed by Bunnings which alleges no market research material was disclosed by Mitre 10 to the Commission at the date of the March hearing or earlier.
[42] Moreover, subsequently in 2019 Bunnings filed further evidence and submissions to support its appeal and judicial review. This included an amended brief of evidence for Mr Snowden that the Commission had given to Bunnings. This brief of evidence refers to some of the interactions between the Commission and Mitre 10 after the hearing before Judge Cunningham. It includes the information that on 24 September 2018 (after Judge Cunningham delivered her decision) Mitre 10 made additional price data comparison samples available to the Commission, which in turn provided the same to Bunnings.
[43] The parties now agree (at the recall hearing) that some material (they do not agree on which material) was provided to the Commission by Mitre 10 before the hearing before Judge Cunningham, and Bunnings accepts that material was provided voluntarily by Mitre 10. So the most that can be said here is that the parties agree some material was provided voluntarily prior to the hearing before Judge Cunningham.
[44] Bunnings’ focus is on the material provided after the District Court hearing in March 2018. This material was seemingly provided after Judge Cunningham delivered her decision, which was in August 2018. It may include all or part of the material referred to in Mr Snowden’s amended brief of evidence.30 However, Bunnings’ statement of claim says nothing about when or how or who was responsible for this material being given to the Commission. Nor do the submissions it filed after the hearing and the evidence it then adduced address this topic with any specificity.
[45] There is no pleading from Bunnings, no evidence or anything else to suggest that after Judge Cunningham delivered her decision there was another District Court hearing at which Mr Snowden appeared and duly produced material pursuant to the amended summons. The general impression I have been given is that there was no such hearing. However, there is no doubt that since Judge Cunningham delivered her decision, price data comparisons have gone from Mitre 10 to the Commission.
[46] Against this background, which is not contested by the parties and which can be seen from the pleadings, I concluded that Mitre 10 had voluntarily provided the material it gave to the Commission after delivery of Judge Cunningham’s decision. In support of recall, Bunnings reiterates its argument that this material was provided under compulsion of a summons, which was improperly and unlawfully used to obtain discovery from Mitre 10, and that I have misapprehended these “crucial facts” and Bunnings’ reliance upon them. I do not agree.
[47] At the hearing of the recall application Bunnings referred to a letter dated 28 November 2017 from Mitre 10 to the Commission in which at paragraphs [11] and
[12] Mitre 10 suggested the Commission consider applying for a summons for the
30 Mr Snowden says this material was provided to the Commission on 24 September 2018.
purpose of ascertaining the admissibility of Mr Snowden’s evidence, and as part of that process the Commission obtain Mitre 10’s price data comparisons pursuant to s 159(2) of the Criminal Procedure Act 2011. In the letter Mitre 10 acknowledged that a summons would only require this information to be produced at trial, which would not give Bunnings witnesses and counsel sufficient time to review the information. Hence, the idea the information be provided as part of the pre-trial inquiry into the admissibility of Mr Snowden’s evidence. Bunnings argued that the approach suggested in the letter meant that material on the price data comparisons was provided under the summons and therefore not voluntarily. However, this argument overlooks the fact the approach suggested in this letter was not entirely followed. Mr Snowden went to the hearing before Judge Cunningham with some material relevant to price data comparisons, but the way the hearing eventuated meant that no material relevant to price data comparison was provided by Mr Snowden that day. This is understandable because until Bunnings and Mitre 10 knew the outcome of their objections to the original summons no-one would have known what material, if any, Mr Snowden was required to provide under the summons. Thus, the letter does not assist Bunnings.
[48] In my judgment, of which Bunnings seeks recall, at paragraphs [23]-[27] I set out the factual circumstances laid out above; namely that Mitre 10 provided material to the Commission following the delivery of Judge Cunningham’s decision and the provision of confidentiality undertakings to Mitre 10 on behalf of Bunnings and the Commission.31 Later, at paragraphs [37] to [38] I found that based on these factual circumstances the material provided by Mitre 10 following the delivery of Judge Cunningham’s decision was done so voluntarily and this finding had various legal consequences or effects impacting Bunnings’ case.
[49] I consider the decision I reached on this aspect of Bunnings’ case was an assessment of the legal effect of the undisputed pleaded factual events set out above. If I am wrong about their legal effect I have erred in law, which is different from factually misapprehending them. Bunnings has not disputed the factual circumstances as set out above, indeed they essentially reflect the factual allegations Bunnings makes
31 Bunnings Ltd v Commerce Commission [2019] NZHC 3340.
in its statement of claim and reply to Mitre 10’s statement of defence. Yet because I take a different view of the legal effect of those factual circumstances Bunnings contends I have acted under what Bunnings styles as a “factual” misapprehension that would warrant recall of the judgment. I disagree with that analysis. These are the very type of circumstances that are appropriately dealt with by appeal.
[50] Accordingly, I am satisfied the recall application for the judicial review judgment should be denied.
Criminal appeal recall
[51] In the criminal appeal judgment I accepted Bunnings’ argument that Mr Snowden could not give his proposed oral evidence describing the data price comparisons of Bunnings and Mitre 10 products for the period 2015/2016 without those comparisons being produced in evidence. This finding, which is now being appealed by the Commission, is of importance to Bunnings because it argues that because the Commission cannot produce a facsimile of the price data comparisons that Mitre 10 made in 2015 /2016 Mr Snowden’s proposed oral evidence is not admissible. I rejected this aspect of Bunnings’ argument, hence the recall application.
[52] No-one disputes that a facsimile copy of the price data comparisons that Mitre 10 made in 2015/2016 was not kept, and that any price data comparisons that Mitre 10 may now provide for the 2015/2016 period will be the outcome of Mitre 10 interrogating its electronic data systems sometime after 2015/2016. At trial the Commission may seek to rely on data from interrogations that have now been made or which are still to be made. I concluded that provided those interrogations revealed that on a specific date in time (which would have to be within the charge period) Mitre 10 was selling identifiable items at lower or at the same prices to comparable items sold by Bunnings that was all that mattered when it came to determining whether price data comparisons were admissible evidence to prove the charges against Bunnings.
[53] For recall, Bunnings contends that I misapprehended “crucial facts” and its argument on appeal because the judgment does not recognise that Bunnings relied on Mitre 10’s inability to provide facsimile price data comparisons made in 2015/2016,
which underlay and preceded Mr Snowden’s proposed oral evidence. Bunnings further contends that this inability negated the proviso I recognised for the admission of Mr Snowden’s proposed oral evidence and therefore established the inadmissibility of his proposed oral evidence.
[54] I consider that Bunnings’ argument on appeal was founded on no more than the proposition that because when Mr Snowden gives evidence he will be unable to refer to a facsimile of the price data comparisons Mitre 10 made in 2015/2016 there are no such comparisons available. Whether that is so or not was a matter open for argument. Indeed the Commission and Mitre 10 argued to the contrary. Bunnings’ underlying proposition and the argument on which it rested was dealt with in the judgment and rejected.32 Whether I was right in the conclusions that I reached or whether I dealt with those conclusions adequately are separate issues that are appropriate for appeal.
[55] Now Bunnings contends there has been misapprehension of the “crucial facts” on which it relied for the criminal appeal. However, here Bunnings is trying to present an incontrovertible factual position (no facsimile of price data comparisons for 2015/2016 means this data no longer exists) when no such position exists. On appeal all Bunnings ever had was the proposition that for the price data comparison information to be admissible it had to be in the form of a facsimile of what was first seen by Mr Snowden/Mitre 10 employees when they first ran the price data comparisons in 2015/2016. Once that proposition was rejected, as it was, the argument lost its foundation and so it failed.
[56] Accordingly, I am satisfied the recall application for the criminal appeal judgment should be denied.
Conclusion
[57] For both the judicial review and the criminal appeal Bunnings advanced arguments that relied on certain foundations being established: (a) for the judicial review, that Mitre 10 provided the price data comparisons it has given to the
32 See [61]-[62] of Bunnings Ltd v Commerce Commission [2019] NZHC 3340.
Commission under compulsion of summons; and (b) for the criminal appeal, that absent a facsimile copy of the price data comparisons Mitre 10 ran in 2015/2016 no such data now exists. As explained above, in my view Bunnings never established those foundations; that is why its arguments failed. It also meant there was no basis to consider many of its legal arguments, particularly in relation to the judicial review, because the factual foundations on which those arguments were based were not present, and therefore they were academic. In such circumstances there is no basis for recall; if Bunnings wants to challenge the judgment appeal is the proper remedy.
Result
[58] The applications for recall of the judicial review judgment and the criminal appeal judgment are denied.
[59] On the application for recall of the judicial review judgment the parties have leave to file memoranda as to costs.
Duffy J
0
10
1