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Commerce Commission v Unknown Defendant(s)

Commerce Commission v Unknown Defendant(s)

Case [2019] NZHC 2609 14 October 2019

Intellectual Property Law

Privacy Law

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ORDER PROHIBITING PUBLICATION OF CERTAIN INFORMATION DISCLOSED IN PROCEEDINGS

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2019-485-000570

[2019] NZHC 2609

IN THE MATTER
Of a claim for breach of confidence, breach of copyright and application for interim

injunction

BETWEEN

COMMERCE COMMISSION

Plaintiff

AND

UNKNOWN DEFENDANT(S)

Defendant

Hearing: 09 October 2019

Appearances:

M R Heron QC and C E M Agnew-Harington for the Plaintiff No appearances for the Defendant(s)

Judgment:

14 October 2019

REASONS FOR JUDGMENT OF GWYN J

This judgment was delivered by me on 14 October 2019 at 3.00pm and
Re-delivered at 11am on 16 October 2019 as per Minute of Gwyn J of 16 October 2019 Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Counsel/Solicitors:
M Heron QC, Auckland Copy to:
M Borrowdale, General Counsel, Commerce Commission, Wellington

COMMERCE COMMISSION v UNKNOWN DEFENDANT(S) [2019] NZHC 2609 [14 October 2019]

Introduction

[1] On 9 October 2019, I heard the Commerce Commission’s urgent application for an interim injunction. The papers were filed on 8 October 2019 on a without notice basis.

[2] In this judgment I provide my reasons for granting the application and for making the orders which I made on 9 October 2019, which are reproduced in the appendix to this judgment.

Background

[3] The Commerce Commission was established under the Commerce Act 1986 and is a Crown entity for the purposes of s 7 of the Crown Entities Act 2004. It exercises a range of functions under the Commerce Act and several other statutes. The Commission’s most significant functions, for the purposes of this application, are:

a) Investigation of potential breaches of the Commerce Act 1986 (Parts 2 and 3), Fair Trading Act 1986, and the Credit Contract and Consumer Finance Act 2003 (CCCFA), together with any enforcement action required, which may include commencing civil or criminal proceedings;

b) The conduct of competition studies under Part 3A of the Commerce Act. The Commission commenced its first competition study in relation to the retail fuel market following a direction from the Minister of Commerce in December 2018;

c) Determining applications for clearance or authorisation of mergers or restrictive trade practices under Part 5 of the Commerce Act. This may also include representing the public interest in any appeals from the Commission's determination;

d) Regulation of industries under Part 4 of the Commerce Act. This is limited to industries where competition is limited, and likely to remain limited. At present this includes Transpower, electricity distributors,

gas distributors, and airports;

e) Industry specific regulation of telecommunications services under the Telecommunications Act 2001 and of aspects of the dairy industry under the Dairy Industry Restructuring Act 2001;

f) Investigation of potential breaches of industry specific regulation and/or regulations made under Part 4 of the Commerce Act, together with any enforcement action required, which may include commencing civil or criminal proceedings.

[4] The majority of the information the Commission receives in carrying out its functions is…

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.

Continue reading Commerce Commission v Unknown Defendant(s)

Details

AGLC: Commerce Commission v Unknown Defendant(s) [2019] NZHC 2609
Case: [2019] NZHC 2609
Decision Date: 14 October 2019

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether to grant an interim injunction to the Commerce Commission against unknown defendants to prevent them from disclosing stolen confidential information. The Commission had discovered that computer equipment containing confidential data had been stolen from one of its service providers. This data included commercially sensitive information, market sensitive information, information from confidential sources, legally privileged information, investigative information, and personal information. The Commission sought an interim injunction to restrain the unknown defendants from communicating, copying, distributing, issuing, broadcasting, adapting, or dealing with the stolen information in any way. The court considered three criteria for granting an interim injunction: whether there was a serious question to be tried, whether the balance of convenience favoured the grant of an injunction, and whether the overall justice of the matter favoured the grant of an injunction.

The court found that there was a serious question to be tried based on the Commission's claims of breach of confidence and breach of copyright. The stolen information had the necessary quality of confidence and was imparted in circumstances importing an obligation of confidence. The court was satisfied that the balance of convenience favoured the grant of an interim injunction as the Commission had a well-founded fear that the stolen information would be used or disseminated in breach of confidence and copyright. The court also found that the overall justice of the matter favoured the grant of an interim injunction as there appeared to be no legitimate basis upon which a recipient of the stolen information could release it. The court granted the injunction against unknown defendants, pending their identification by the police, and made orders suppressing certain information disclosed in the proceedings.

In conclusion, the court granted the Commerce Commission's application for an interim injunction against unknown defendants to prevent them from disclosing stolen confidential information. The court found that there was a serious question to be tried and that the balance of convenience and overall justice favoured the grant of an interim injunction. The court also made orders suppressing certain information disclosed in the proceedings.

Orders