The Commerce Commission v Telecom Corporation of New Zealand Limited and Telecom New Zealand - SC 76/2009

Civil – alleged breach of s 36 of the Commerce Act 1986 – the Privy Council in Telecom Corporation of New Zealand v Clear Communications [1995] 1 NZLR 385 formulated a counterfactual test (whether a hypothetical firm, not in a dominant position but otherwise in the same circumstances, would have acted as the dominant firm did) to determine whether a firm has used its dominant position in breach of s 36 – whether this test is the appropriate and necessary test for determining a breach of s 36 – if the test is reconsidered, and if the question is assessed on a factual enquiry rather than solely by apply a counterfactual analysis, whether Telecom used its dominant position in the national retail market in breach of s 36 – alternatively, whether the Court of Appeal erred in finding that, on application of the counterfactual test, the Commission had not demonstrated that Telecom had used its dominant market position in breach of s 36 – whether the Court of Appeal erred in not considering whether the High Court erred in finding that Telecom did not have an anticompetitive purpose under s 36(1) of the Act.[2009]  NZCA  338    CA 288/2008   4 August  2009