Marsich v Commerce Commission - [2017] NZHC 1589

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2017-404-077 [2017] NZHC 1589

BETWEEN
GAVIN JOHN MARSICH

Appellant

AND

COMMERCE COMMISSION Respondent

Hearing: 10 July 2017

Counsel:

G J Marsich, in person, Appellant
A M McClintock and T C Clark for Respondent

Judgment:

11 July 2017

JUDGMENT OF HEATH J

This judgment was delivered by me on 11 July 2017 at 11.00am pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland
Copy to:
G J Marsich, Appellant

MARSICH v COMMERCE COMMISSION [2017] NZHC 1589 [11 July 2017]

The appeal

[1] Mr Gavin John Marsich appeals against conviction on 16 charges involving breaches of the Commerce Act 1986, the Fair Trading Act 1986 and the Credit Contracts and Consumer Finance Act 2003. He also appeals against the sentence imposed upon him. His appeal is brought on jurisdictional grounds only.

Background

[2] Twenty Fifty Club Ltd (Twenty Fifty) and Mr Marsich were each charged with 17 offences which were based on contravention of particular provisions of the three Acts to which I have referred. The Commerce Commission (the Commission) alleged that Twenty Fifty was the principal offender with Mr Marsich, as its sole director, a party. In broad terms, the charges fell into three categories:

(a) Those alleging that Twenty Fifty and Mr Marsich failed, without reasonable excuse, to comply with a notice issued under s 98(a) and (c) of the Commerce Act 1986;

(b)Those alleging that Twenty Fifty and Mr Marsich failed to comply without reasonable excuse with a notice issued under s 47G of the Fair Trading Act 1986; and

(c) Those alleging Twenty Fifty and Mr Marsich engaged in conduct prohibited by the Credit Contract and Consumer Finance Act 2003.

[3] In a judgment given on 3 June 2016, following a trial in the District Court at

Manukau in April 2016, Judge Moses found Twenty Fifty and Mr Marsich guilty of

16 of those charges.1 The remaining charge had been brought in the alternative and did not require determination. Although, having unsuccessfully protested the jurisdiction of the Court, Mr Marsich did not participate in the defended hearing, the
Court did have the assistance of amicus curiae.

1 Commerce Commission v Twenty Fifty Club Ltd [2016] NZDC 7242.

[4] Twenty Fifty and Mr Marsich were sentenced on 24 November 2016. The Judge set out briefly the background to the prosecution and the purposes of the various statutes under which the charges were laid. Having identified aggravating and mitigating factors concerning the offending, Judge Moses imposed fines totalling $38,000 on both Twenty Fifty and Mr Marsich.2

[5] The Judge went on to consider whether ancillary orders should be made under s 94 of the Credit Contracts and Consumer Finance Act.3 He made various declarations to which I do not need to refer, as well as reparation orders.4 The Judge also made an order disqualifying Mr Marsich from being a party to entering into various types of consumer credit contracts5 indefinitely.6 A…

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 Marsich v Commerce Commission

Details

AGLC: Marsich v Commerce Commission [2017] NZHC 1589
Case: [2017] NZHC 1589
Decision Date: 11 July 2017

CaseChat Overview and Summary

In this case, Mr. Gavin John Marsich, a director of Twenty Fifty Club Ltd, appealed against his conviction on 16 charges involving breaches of the Commerce Act 1986, the Fair Trading Act 1986, and the Credit Contracts and Consumer Finance Act 2003. The charges stemmed from allegations of non-compliance with notices and prohibited conduct in providing short-term finance to vulnerable customers. The main legal issues in this appeal were whether the court had jurisdiction to hear the case, and if the sentences imposed were appropriate.

The court found that there was no valid basis for Mr. Marsich to challenge the court's jurisdiction to hear and determine the charges brought by the Commerce Commission. The court's authority to hear and determine criminal cases is derived from the exercise of Parliament's legislative powers, and it is impermissible for any other institution or tribunal to attempt to replicate those powers. Therefore, Mr. Marsich's challenge to the jurisdiction of the District Court and this Court must fail.

As for the appeal against conviction and sentence, the court found that there was sufficient proof for the District Court Judge to find Mr. Marsich guilty in his capacity as a director of Twenty Fifty Club Ltd. The court also found that the District Court Judge correctly identified relevant sentencing purposes and principles and applied them correctly. The overall sentence imposed cannot be regarded as manifestly excessive, or in any other way as inappropriate.

However, the court expressed some concern about the Judge's order that Mr. Marsich be prohibited from entering into certain types of consumer credit contracts indefinitely. The court urged the Commission to give consideration to the approach it should take when banning orders are sought, so that courts that are asked to make such orders have the benefit of full submissions on the point.

In conclusion, the appeal against conviction and sentence is dismissed. The ancillary orders are left intact, as Mr. Marsich has not expressly challenged the order and the Judge made findings that justified (at least) a lengthy ban. However, the court urges the Commission to review its approach to banning orders and provide more information when seeking such orders in the future.

Orders