The commerce and consumer affairs minister recently tabled a bill in Parliament that will enable the Commerce Commission to undertake market studies. The bill also provides for matters concerning the Commerce Act's competition law regime – namely, repealing its cease and desist regime and empowering the commission to accept enforceable undertakings in order to resolve restrictive trade practice enforcement cases under the act.
The Commerce (Criminalisation of Cartels) Amendment Bill was recently tabled in the House of Representatives. It introduces a new criminal offence for cartel conduct, as well as a requirement for intention for criminal prosecution and a defence against criminal prosecution for individuals who believed that a cartel provision was reasonably necessary for a collaborative activity. This development overturns the previous government's decision to remove criminal penalties for cartel conduct from the bill.
There were a number of key competition law developments in New Zealand during 2017, including the enactment of the Cartels Act, the postponement of the reform of the prohibition on taking advantage of market power and a significant increase in the proportion of declined merger clearances. In addition, the new Labour-led government stated that it is keen to empower the Commerce Commission to undertake market studies before the end of 2018.
There is a debate in competition law at present concerning whether a company can restrict online sales for their products. Under New Zealand competition law, a supplier restricting its customers from selling on online platforms could be penalised if, among other things, it has market power and imposes restrictions to take advantage of that market power for an anti-competitive purpose. However, legitimate and pro-competitive justifications can be relevant in assessing the legality of such restrictions.
The Commerce Commission recently released its Consumer Issues Report 2016/17. Although greater transparency is to be commended, a failure to balance this against the legitimate interests of businesses that have not been involved in any breach of the law, but which are still named and shamed, risks turning the report into a publication which does more harm than good.
The EU General Data Protection Regulation (GDPR) will come into full effect on May 25 2018 and will impact New Zealand businesses that do business with EU residents or entities or have a presence in the European Union. In addition, the privacy commissioner recently released a report recommending that the Privacy Act be substantially amended (including to comply with the GDPR) and the Ministry of Justice has indicated that privacy reform is a key initiative.
A recent High Court judgment has surprised some observers by allowing a representative action of homeowners to proceed against a government-owned earthquake insurer. The judgment is of note because it followed an earlier refusal by the same court to give the group leave to proceed. The case offers the opportunity to compare the unsuccessful and successful applications and briefly survey the landscape of such actions.
The High Court recently issued a decision regarding the coverage offered to the directors and general manager of a trust fund management company by a professional indemnity policy and separate directors' and officers' cover. The decision highlights that courts will consider a number of relevant factors to interpret multiple policies, the most relevant in this case being the commercial intent of the policies as a whole.
The Insurance Council of New Zealand (ICNZ) recently announced that Youi New Zealand Property Limited must pay the maximum fine of NZ$100,000 for failing to conduct business in accordance with the Fair Insurance Act. The fine is less significant than the ICNZ's clear message that it will use the full extent of its powers to protect the insurance industry's reputation and raise the standards and services that insurers provide to consumers.
A recent Court of Appeal decision has been praised as a victory for parties with a legitimate interest in seeing that release agreements are routinely upheld and enforced. However, the Supreme Court recently gave leave to appeal the decision. One of the approved grounds is the effect of the parties' release agreement, which will again shine a spotlight on the effectiveness of properly drafted settlement agreements.
Natural disaster cover under household insurance cover is often payable only to top up what the Earthquake Commission (EQC) has paid. Usually there is cooperation between the EQC and insurers to agree on apportionment between earthquakes and whether damage is over or under the cap which triggers insurance cover. If agreement is not reached, the EQC may settle directly with the home owners.
The Supreme Court recently considered a judicial review application about the length of runway end safety areas under a proposed runway extension. Users of the airport might be reassured by the Supreme Court's finding that, under the existing statutory regime, more than a cost-benefit analysis is required; among other matters, a mandatory consideration includes the need to improve aviation safety.
The Supreme Court recently reversed a Court of Appeal judgment that a local authority did not owe a duty of care to a commissioning owner in issuing a code compliance certificate for a non-compliant building. The judgment is significant because it recognises that local authorities owe a duty of care even to commissioning owners that engage their own professionals to ensure compliance with building standards.
The Supreme Court recently issued a somewhat controversial decision of significance in the area of litigation funding. The decision contains guidance on the key question of whether a funding agreement amounted to an impermissible assignment of a bare cause of action that would constitute trafficking in litigation. It remains to be seen whether, and to what extent, the decision may be used by defendants seeking to challenge funding agreements.
The Evidence Amendment Act 2016 came into force in January 2017 and is the fourth and most substantial amendment to the Evidence Act since its introduction in 2006. Most of the amendments relate to evidence in criminal proceedings. However, several amendments are relevant to civil proceedings. The amendments relate to the definitions relevant to the application of privilege, legal advice privilege, settlement privilege, prior consistent statements and the prohibition on using previous decisions as evidence.
The Supreme Court recently clarified the law applicable to unused registered trademarks in New Zealand and limited the scope of protection afforded to trademarks under the Trademarks Act 2002. The decision will affect companies which have sought to expand the protection available under the act by acquiring, but not actually using, trademarks that resemble their own purely to prevent other traders from using them.