Bunnings Ltd v Commerce Commission - [2019] NZHC 3340

THIS IS A REDACTED VERSION OF THE JUDGMENT FOR

PUBLICATION. AN UNREDACTED VERSION HAS BEEN DELIVERED TO THE PARTIES.

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

[2019] NZHC 3340

IN THE MATTER OF Criminal Procedure Act 2011

BETWEEN

BUNNINGS LIMITED

Appellant

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/Appellant

Hearing:
10, 11 December 2018, Further submissions 21 December 2018,

12 February 2019, 14 June 2019, 21 June 2019, 24 June 2019,
27 & 28 June 2019, 8 July 2019, 24 July 2019, 29 July 2019,
5 August 2019

Appearances:

J E Hodder QC and J Lindsay for Appellant

J Dixon QC, I Brookie and C Fraquhar for Commerce Commission

M Dunning QC, L Farmer for Mitre 10

Judgment:

17 December 2019

BUNNINGS LIMITED v COMMERCE COMMISSION [2019] NZHC 3340 [17 December 2019]

JUDGMENT OF DUFFY J

This judgment was delivered by me on 17 December 2019 at 11.30 am pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:
Kayes Fletcher Walker, Manukau Meredith Connell, Auckland John Dixon QC, Auckland
Lindsay Litigation, Auckland Jack Hodder QC, Wellington Adam Ross QC, Auckland

[1] The Commerce Commission (CC) brings a Judge alone prosecution in the District Court under the Fair Trading Act 1986 (FTA) against Bunnings Ltd (Bunnings).1 The charges arise out of representations made by Bunnings to consumers that it had the lowest prices. The CC alleges that these representations were false and misleading. Bunnings denies the charges. The CC’s investigation resulted from a complaint made by Mitre 10 in late 2014.

[2] On 1 August 2018, Judge Cunningham made pre-trial rulings in favour of the CC on the admissibility of the evidence of Murray Snowden and the validity of a witness summons for Mr Snowden to appear at the pre-trial hearing and at trial and to produce the information set out in the witness summons.2 Bunnings now challenges those rulings by way of judicial; review and it seeks leave to appeal against them. The CC does not oppose the grant of leave and is content for the Court to deal with the appeal.

The pre-trial rulings

Background

[3] Mr Snowden works for Mitre 10. Mitre 10 is one of Bunnings’ competitors. Mitre 10 conducted a comparison of the prices of items sold by Bunnings and by Mitre 10 during a specific time frame.3 To do so it used a process known as web data collection.

[4] Both companies now have publicly accessible web sites which contain their respective products. Persons can either purchase the products online or after viewing the web site attend a store to make their purchase. Accordingly, the prices at which each company sells their products can be obtained electronically. In the past a company wanting to compare its prices with those of a competitor would…

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: [2019] NZHC 3340
Decision Date: 17 December 2019

CaseChat Overview and Summary

In Bunnings Ltd v Commerce Commission, the High Court dismissed Bunnings' appeal against the pre-trial rulings of the District Court and its judicial review proceedings. The Commerce Commission (CC) had brought charges against Bunnings under the Fair Trading Act 1986 for allegedly making misleading or false representations about having the lowest prices. The charges arose from a complaint by Mitre 10, a competitor of Bunnings. The Court considered three main issues: the admissibility of the evidence of Murray Snowden, the validity of the witness summons for Mr Snowden, and the granting of Mitre 10's application to amend the summons. The Court held that the amended summons was not invalid, as the information sought was already in the possession of the CC and had been disclosed to Bunnings. The Court also found that the evidence of Mr Snowden was admissible, as it was an objective comparison of products and prices, and did not require compliance with the Whitford Guidelines. The Court dismissed Bunnings' appeal and judicial review proceedings, and allowed the parties to file memoranda on costs in relation to the judicial review proceedings.

Orders