Competition and trade practices

I have appeared as counsel in some leading New Zealand competition law cases, including:

  • acting for the Commerce Commission in successful proceedings under s 36 of the Commerce Act 1986 against Telecom for taking advantage of its market power in its wholesale pricing of “data tails” (access to Telecom’s high speed data network). Following a six week High Court trial and subsequent penalty hearing, a (then) record penalty of $12m was awarded. I also appeared for the Commission in successfully defending the subsequent appeals by Telecom to the Court of Appeal on both liability and penalty.
  • acting for the Commerce Commission in appeals to the Court of Appeal and Supreme Court in proceedings under s 36 of the Commerce Act against Telecom for allegedly taking advantage of its market power in implementing its “0867” scheme. The Supreme Court reaffirmed the “counterfactual test” as the mandatory test of use of market power under s 36.

In these cases the legal team worked with leading US economists.

As well, I acted for the Commission in its first application for a cease and desist order under s 74A of the Commerce Act, against a port owner. The case settled favourably.

I also advise commercial clients on various Commerce Act, Fair Trading Act and other regulatory issues. I have also given advice on ‘niche’ competition regimes, for example:

  • Part 9 of the Civil Aviation Act 1990 relating to strategic alliances between international airlines, and
  • the non-statutory, consensual regime governing postal network access, including the application of the Efficient Component Pricing Rule (ECPR) under the relevant “Pricing Principles”.

This area overlaps with some of my other practice areas, such as public law. For example, a decision by a regulator may involve issues of fair procedure as well as competition law issues.

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