Commerce Commission v Visy Board Pty Ltd

IN THE COURT OF APPEAL OF NEW ZEALAND

CA312/2011
[2012] NZCA 383

BETWEEN  COMMERCE COMMISSION
Appellant

AND  VISY BOARD PTY LIMITED
Respondent

CA351/2011

AND BETWEEN             JOHN RODERICK STEPHEN CARROLL
Appellant

AND  COMMERCE COMMISSION
Respondent

Hearing:         18-19 June 2012

Court:             Arnold, Stevens and Wild JJ

Counsel:         F M R Cooke QC, B Hamlin and R J Hart for Appellant in CA312/2011 and Respondent in CA351/2011
A R Galbraith QC, S C Keene and S A Cunliffe for Respondent and Cross Appellant in CA312/2011
S J Mills QC and W K Blennerhassett for Appellant in CA351/2011

Judgment:      31 August 2012 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeal in CA312/2011 is allowed.

BThe cross appeal by the respondent in CA312/2011 is dismissed.

CThe respondent in CA312/2011 must pay the appellant costs for a complex appeal on a band A basis and usual disbursements.

DThe appeal by the appellant in CA351/2011 is dismissed.

EThe appellant in CA351/2011 must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

FThe following orders are consequential upon the outcome of the appeals:

(a)If the Commission files and serves a third amended statement of claim, restricted to pleading those causes of action against Visy Board that we have determined can proceed, and to those causes of action against Mr Carroll that Heath J determined can proceed, then the Commission’s applications to set aside the protests to jurisdiction shall be granted.  The third amended statement of claim shall be filed and served on or before 28 September 2012.

(b)If a third amended statement of claim complying with order (a) is not filed and served on or before 28 September 2012, the Commission’s applications to set aside the protests to jurisdiction will be dismissed.

(c)The case is remitted to the High Court for further case management.

GBy consent the confidentiality orders made by Heath J in the High Court are to continue provided however that such orders are varied by order of this Court to the extent only that the reasons set out in this judgment may be published in the news media.  Any application to vary or set aside such orders is to be made to the High Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

A cartel extending to New Zealand?  [1]
Some more background  [6]
Jurisdiction – applicable principles  [13]

Generally  [13]
High Court Rules  [15]
Section 90(2)(b) of the Act  [19]
Section 4 of the Act  [22]

The High Court judgment  [35]
Overarching understanding – application to New Zealand                [40]
Acts done or occurring in New Zealand  [48]

The Goodman Fielder understanding  [50]
The Mainland understanding  [59]
The apple box price understanding  [68]
The Fonterra understanding  [74]
Overarching understanding  [86]

Jurisdiction concerning the further understandings  [87]

Coca-Cola understanding  [88]
The Inghams understanding  [94]
The PPCS/Richmond compensation understanding  [97]
The Huhtamaki understanding  [100]

Jurisdiction under s 4  [104]

Carrying on business in New Zealand  [104]
Visy Board NZ a division of Visy…