Over the past couple of months, the courts have handed down decisions in some significant appeal cases, including:
NZME/Fairfax (Stuff) merger
At the end of September, the Court of Appeal dismissed NZME and Fairfax’s (now Stuff) long-running appeal against our decision to decline their media merger. The Court’s ruling upheld the earlier High Court judgment that supported our May 2017 decision that the merger would be likely to substantially lessen competition in advertising and reader markets in New Zealand, and that it should not be authorised as it did not create benefits that outweighed this lessening of competition. We considered the merger would concentrate New Zealand news media ownership and influence to an unprecedented extent for a well-established modern liberal democracy. The Court of Appeal also awarded costs to the Commission. The appeal ruling clarifies that we have jurisdiction to consider detriments beyond those that can be economically quantified and we can consider wider public benefits and detriments when assessing merger authorisation applications. The full judgment is available here and documents relating to the Commission’s original determination can be found here.
Hamilton Real Estate case
We also won our appeal in our Hamilton real estate price fixing case. The Court of Appeal confirmed that Hamilton-based Lodge Real Estate and Monarch Real Estate and its directors acted unlawfully in collectively agreeing to pass Trade Me listings cost increases on to consumers, rather than competing on the listing fees charged to vendors. The Court of Appeal has referred the case back to the High Court for a penalty hearing. A copy of the Court of Appeal judgment can be found here. The parties have until 21 December to appeal the judgment.
Steel & Tube appeal
We have filed an appeal against the sentence imposed on Steel & Tube for false and misleading representations about its earthquake-grade steel mesh products. In October, the High Court imposed a $1.885 million fine on Steel & Tube after it pleaded guilty to 24 charges under the Fair Trading Act. The Commission is appealing on the basis that the Judge erred when sentencing the company, by failing to properly attribute the knowledge of a Steel & Tube manager to the company, and by not adequately taking into account the size of Steel & Tube and the potential for it to gain from the conduct in determining the level of fine. More information on the case is available here.