Poynter v Commerce Commission

Case [2010] NZSC 38


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In the Supreme Court of New Zealand
SC 32/2009
[2010] NZSC 38

BETWEEN     ANDREW ROBERT POYNTER
Appellant

AND   COMMERCE COMMISSION
Respondent

Hearing:         17 November 2009

Court:  Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ

Counsel:         J G Miles QC, S C Keene and A J Fincham for Appellant
D J Goddard QC and M-A M Borrowdale for Respondent

Judgment:      16 April 2010

JUDGMENT OF THE COURT

AThe appeal is allowed.

BThe orders made by the Courts below are set aside.

CThe Commission’s application to set aside Mr Poynter’s protest to the jurisdiction is dismissed and Mr Poynter is dismissed from the proceeding.

DThe Commission must pay Mr Poynter for his costs in this Court the sum of $15,000.00 plus disbursements to be fixed if necessary by the Registrar.  Mr Poynter should also have costs in the Court of Appeal and the High Court either as agreed or as fixed by those Courts.

REASONS

Para No

Elias CJ  [1]
Blanchard, Tipping, McGrath and Wilson JJ  [18]

ELIAS

[1] The Commerce Commission alleges that the appellant, Mr Poynter, is liable to penalty under s 80 of the Commerce Act 1986 in respect of price manipulation contrary to ss 27 and 30 of the Act. It is accepted that Mr Poynter does not reside or carry on business in New Zealand. His direct participation in the alleged breaches of the Act is accepted to have taken place outside New Zealand. Nor did it involve communications into New Zealand. It is claimed however that Mr Poynter had managerial responsibility within the Fernz group of companies named as defendants in the proceedings issued by the Commerce Commission. The Fernz defendants have admitted liability by reason of arrangements or understandings to substantially lessen competition in New Zealand in relation to the market in timber treatment products. The Commerce Commission claims that Mr Poynter became personally liable by his “involvement in one or more of the breaches by the Fernz Group defendants”, by being “directly or indirectly, knowingly concerned in one or more of the breaches by the Fernz Group defendants”, and by reason of his having “conspired with another defendant or defendants to breach [the provisions of the Act]”. These claims against him are based on s 80(1) of the Act, which is set out below at [11]. Mr Poynter has not yet pleaded to the claim. He entered an appearance under protest to jurisdiction and takes the preliminary point that the Commerce Act does not extend to his conduct because it is not covered by s 4.

[2]      Section 4 describes the circumstances in which the Commerce Act applies to conduct outside New Zealand.  It provides: 

4     Application of Act to conduct outside New Zealand

(1)This Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct affects a market in New Zealand.

(2)Without limiting subsection (1) of…

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AGLC
Poynter v Commerce Commission [2010] NZSC 38
Case
[2010] NZSC 38
Decision Date

CaseChat Overview and Summary

The appellant, Andrew Robert Poynter, appealed against a decision of the Court of Appeal which found that the Commerce Commission had jurisdiction to prosecute him for price manipulation contrary to sections 27 and 30 of the Commerce Act 1986. The Court of Appeal found that although Poynter did not reside or carry on business in New Zealand, the conduct of his subordinates within New Zealand was attributable to him, and that therefore the Commerce Commission had jurisdiction to prosecute him. The Supreme Court found that the appeal should be allowed, the protest to jurisdiction should be upheld and that Poynter should be dismissed from the proceeding. The Court held that the Act was not intended to have extraterritorial effect and that Poynter could not be subject to the jurisdiction of the New Zealand courts. The Court held that the provisions of the Act which deal with attribution of conduct and the imposition of pecuniary penalties for conspiring to contravene the Act did not apply to Poynter's conduct. The Court held that it would be inappropriate for the courts to impose piecemeal common law glosses onto a statutory code. The Court held that if Parliament intended to include overseas conspirators within the jurisdictional reach of the Act, it would have to do so with necessary clarity and precision.

Orders

Orders of the court

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Background

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Decision

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