The Commerce Commission is facing another hurdle in its campaign to prosecute those behind price fixing even if they live outside New Zealand – the organisation now has to argue for the right at the Supreme Court.
Both the High Court and the Court of Appeal have supported the Commerce Commission right to prosecute Nufarm executives Elias Akle and Andrew Poynter for price fixing even though they weren’t in New Zealand at the time the offending took place.
But now Mr Akle and Mr Poynter have taken their case to the Supreme Court so a final decision on whether the Commerce Commission has the right to prosecute. The Supreme Court has approved the appeal process.
The case relates back to price fixing by three Nufarm companies, which operated the Fernz Timber Protection brand, and resulted in the company being fined $1.9 million for price fixing and market sharing with competitor Koppers Arch.
Messrs Akle, Harris and Poynter had tried to avoid being prosecuted for their role, arguing that because the activity had not happened here they could not be prosecuted.
This court case is important because it will define whether agreements that breach the Commerce Act and were entered into overseas – but are aimed at New Zealand markets – can be the subject of legal action here.