No civil liability for information provided to ComCom

The High Court has found that parties who provide information to the Commerce Commission under the Commerce Act 1986 are immune from civil actions based on that information. MinterEllisonRuddWatts represented Spark in the proceeding.

This is an important decision for those in business who deal with the Commission.  It is the first case that has considered section 106(9) of the Commerce Act and the scope of the protection afforded to parties who provide information to the Commission.  That section states that “Anything said, or any information furnished, or any document produced or tendered, or any evidence given by any person to the Commission, shall be privileged in the same manner as if that statement, information, document, or evidence were made, furnished, produced, or given in proceedings in a court”.

Application made to strike out claim arising from clearance decision

In late 2017, Blue Reach issued proceedings against Spark under the Fair Trading Act 1986 (FTA).  The claim related to information contained in Spark’s application for clearance from the Commission in late 2015 to acquire certain spectrum rights.

Spark applied to the Court to strike out Blue Reach’s FTA claims.  It argued that Blue Reach’s claim was based solely on information that Spark had provided to the Commission and that the privilege afforded under section 106(9) meant that it had immunity in relation to that information.

Court upholds Spark’s immunity

The Court found in favour of Spark and struck out the claim.  It rejected Blue Reach’s argument that section 106(9) only protects parties from liability in defamation.  Rather, it held that parties providing information to the Commission are in a similar position to parties providing evidence in court – they are protected from any civil liability based on the evidence they give.

The Court noted the policy reasons for this.  There is a strong public interest in parties being fulsome and candid when providing information to the Commission so that it can properly discharge its regulatory functions.  Those parties might not be as forthcoming if they fear information provided could later be used by other parties, including their competitors, to bring claims against them.

Our view

This decision provides clear judicial guidance that parties are immune from civil action for information provided to the Commission.  However, there is still a need to be careful in providing information to the Commission, as parties can still be criminally liable.  It is an offence to attempt to deceive or knowingly mislead the Commission or to provide information to the Commission in response to formal notice knowing it to be false or misleading.

If you have any questions in relation to dealings with the Commerce Commission or other regulators including the provision of information, please contact one of our experts.

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