Commerce Commission v Prices Pharmacy 2011 Ltd

The case before the Court involved the Commerce Commission, which alleged that Prices Pharmacy 2011 Limited and Richard Stuart Grant Hebberd breached sections 27 and 30 of the Commerce Act 1986. The defendants admitted to the breaches, and the parties negotiated an agreed statement of facts and a level of pecuniary penalties. The Court was required to approve the settlement, a process that was complicated by the COVID-19 pandemic. The central legal issues included the appropriateness of the penalties, the respective roles of the defendants in the breaches, and the motivation behind the conduct.

The Court considered the agreed statement of facts, the written submissions, and the relevant materials provided by the parties. It was noted that the Court's role was not to determine the appropriate penalties but to assess whether the agreed sum fell within an appropriate range. The Court took into account the economic consequences of the COVID-19 pandemic, which had occurred after the agreement on penalties was reached. The Court also examined the respective roles of Messrs Hebberd and Wright in the breaches and the motivation behind the conduct. The Court ultimately concluded that the motivation for the breaches was different from typical anti-competitive conduct, as it was primarily driven by a desire to pressure the Nelson and Marlborough District Health Board for more generous terms. The Court also considered the financial capacity of Mr Hebberd to pay the penalties.

After reviewing the supplementary submissions, the Court decided to approve the penalty against Mr Hebberd at the top of the proposed range, namely $50,000. However, the Court declined to approve the penalty imposed on Prices Pharmacy, adhering to the level of $344,000 as explained in the interim judgment. This decision was based on the Court's assessment of the appropriate range for the company's penalty, which remained valid despite the further submissions received.