Commerce Commission v Steel & Tube Holdings Limited

In the Court of Appeal of New Zealand, the Commerce Commission sought leave to bring a second appeal against sentence imposed on Steel & Tube Holdings Limited. Steel & Tube pleaded guilty to 24 charges brought by the Commission under the Fair Trading Act 1986, relating to the sale of steel mesh that did not comply with relevant standards. The charges were categorised into two groups: breaches of section 10 involving misleading representations and breaches of section 13 involving false representations about testing and certification. The High Court substituted the original sentence of $1.885 million with a fine of $2,009,280. Both parties sought leave for a second appeal. The Commission argued the sentence was inadequate and that the Court had erred in its interpretation of section 45 of the Act and the applicable starting points. Steel & Tube contended the fine was excessive and disagreed with the adjustments for totality and mitigating factors.

The Court of Appeal held that the proposed appeal and cross-appeal raised matters of general or public importance justifying leave for a second appeal. The proper approach to attribution for the purposes of sentencing a corporate defendant for offences of this type was considered to be a matter of general or public importance. The Court also found that the setting of starting points and adjustments for totality could be useful in guiding future cases. Consequently, both applications for leave to bring a second appeal against sentence were granted.