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Court of Appeal of New Zealand |
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Court of Appeal of New ZealandLast Updated: 12 December 2011
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA163/01
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BETWEEN
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FOODSTUFFS (AUCKLAND) LIMITED
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Appellant
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AND
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COMMERCE COMMISSION
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First Respondent
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AND
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PROGRESSIVE ENTERPRISES LIMITED
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Second Respondent
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Hearing:
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13 August 2001
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Coram:
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Gault J
Thomas J Keith J Blanchard J McGrath J |
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Appearances:
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J A Farmer QC and G S A MacDonald for the Appellant
W M Wilson QC and D A Laurenson for the First Respondent L L Stevens QC and N F Flanagan for the Second Respondent |
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Judgment:
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19 September 2001
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JUDGMENTS OF THE COURT
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Para No
Gault, Keith and Blanchard JJ [1]
Thomas J [45]
McGrath J [76]
GAULT, KEITH AND BLANCHARD JJ
(DELIVERED BY KEITH J)
TABLE OF CONTENTS
Competition tests, new and old, under the Commerce Act [1]
The High Court rules in favour of
the old test [3]
The principle of
non-retrospectivity [5]
Interpretation Act s18 : one rule
or two? [9]
An existing right,
interest or duty? [22]
The Commerce
Act powers and processes [28]
The
Interpretation Act test [34]
Result [43]
Competition tests, new and old, under the Commerce Act
[1] Under the Commerce Act 1986 s47 (1) “a person must not acquire assets of a business or shares if the acquisition would have, or would be likely to have, the effect of substantially lessening competition in a market”. That test was introduced into the law from 26 May 2001, by an Act assented to on the previous day. Until then, an acquisition was prohibited only if, as a result of it, the person or another person would be, or “would be likely to be, in a dominant position in a market or [their] dominant position ... would be, or would be likely to be, strengthened”. The amendment Act also replaced the title to the Act. Words were added so that the new statement of purpose reads as follows : “to promote competition in markets for the long-term benefit of customers within New Zealand” (added words emphasised). That change, according to the Explanatory Note to the Bill, clarifies that competition is not an end in itself but a means to promote the long-term benefit of consumers and New Zealanders as a whole. The prohibition in s47, the note also explains, was being strengthened to bring New Zealand competition law into line with Australia’s, the proposed new threshold being the same as that in s50 of the Trade Practices Act 1974 (Australia).
[2] A breach of the prohibition in s47, in its old or new form, could or can be the subject of proceedings for pecuniary penalties, an injunction, for damages, or for an order for divestiture of assets (ss83, 84, 84A and 85). But the possibility of such proceedings and sanctions can be forestalled by any person who is planning an acquisition seeking and obtaining a clearance from the Commerce Commission (s66). To get the clearance, the person has to satisfy the Commission that the acquisition does not breach the test stated in s47. Such a clearance has the consequence that s47 does not apply to the acquisition if the assets or shares are acquired in accordance with the clearance, within 12 months of its being granted or being confirmed on appeal (ss69 and 66(5)).
The High Court rules in favour of the old test
[3] On 25 May 2001, the day before the new test came into force, Progressive Enterprises Limited (Progressive), a company operating three supermarket chains, applied for clearance in respect of a proposed acquisition of the Woolworths New Zealand supermarkets. Progressive and the Commerce Commission considered that the old test continued to apply to the application. Foodstuffs (Auckland) Limited (Foodstuffs), a company carrying on business as a supermarket cooperative under three brands, challenged that view in High Court proceedings. It contended that the new test should be applied. In a context of urgency, in a judgment given on 27 June 2001, six days after argument, the High Court, consisting of Williams and Paterson JJ, dismissed that challenge. It held that the old law remained applicable to the pending application for clearance. In accordance with that ruling, the Commission has now granted the clearance to Progressive. Foodstuffs appeals against the High Court ruling. Another ten applications were pending on 26 May. The Commission had granted clearances to four of them before the High Court proceedings were brought and has granted clearances to the remaining six since the Court gave its ruling.
[4] The new legislation would plainly apply to an acquisition occurring on or after 26 May 2001 (as the present one will) if it did not have the benefit of a Commission clearance. The acquisition would have to be tested against the law in force at the time it happens and that would be the new s47. But was Progressive entitled to have its application for clearance decided under the old law? It says yes, since that was the law in force at the time it made the application. Foodstuffs says no, since the law had changed by the time the Commission came to decide.
The principle of non-retrospectivity
[5] The argument in both Courts has centred on three provisions of the Interpretation Act 1999 stating the principle of non-retrospectivity and the lack of effect of repeals. Counsel also referred extensively to authorities from a number of jurisdictions addressing the (lack of) retrospective effect of new legislation both under the common law and under interpretation statutes, many of which follow standard forms.
[6] We begin with the three provisions of the Interpretation Act:
7 Enactments do not have retrospective effect
An enactment does not have retrospective effect.
17 Effect of repeal generally
(1) The repeal of an enactment does not affect—
(a) The validity, invalidity, effect, or consequences of anything done or suffered:
(b) An existing right, interest, title, immunity, or duty:
(c) An existing status or capacity:
(d) An amendment made by the enactment to another enactment:
(e) The previous operation of the enactment or anything done or suffered under it.
(2) The repeal of an enactment does not revive—
(a) An enactment that has been repealed or a rule of law that has been abolished:
(b) Any other thing that is not in force or existing at the time the repeal takes effect.
18 Effect of repeal on enforcement of existing rights
(1) The repeal of an enactment does not affect the completion of a matter or thing or the bringing or completion of proceedings that relate to an existing right, interest, title, immunity, or duty.
(2) A repealed enactment continues to have effect as if it had not been repealed for the purpose of completing the matter or thing or bringing or completing the proceedings that relate to the existing right, interest, title, immunity, or duty.
“Enactment” is defined in s29 as meaning the whole or a portion of an Act or regulation. Sections 7, 17 and 18 accordingly extend to the repeal (and substitution) of particular provisions – as with s47 in this case. “Repeal” is also defined widely in s29 and includes replacement.
[7] The principle in s7 can also be put positively : enactments in general have prospective effect only. We say “in general” because s7 is in the part of the Interpretation Act setting out principles of interpretation and because ss17 and 18 do contemplate that legislation will sometimes look backwards. They deny to repeals only certain effects on past and continuing matters.
[8] Subsection (1)(b) of s17 is the part of that section most in point. Did Progressive at the point the old s47 was replaced have an “existing right [or] interest” to have the application decided under the old law, or (the other side of the coin) did the Commerce Commission have an “existing ... duty” so to decide the matter? (No argument was based on “existing ... title [or] immunity”; while the right under s69 might be seen as an immunity, it does not exist until the clearance is granted and, in the circumstances of this case, that would happen only after the old s47 test had been replaced.) If so, the replacement of s47 would not have affected that existing right, interest or duty. The old test would have remained in effect in respect of the pending applications.
Interpretation Act s18 : one rule or two?
[9] That question arising under s17(1)(b) about an existing right, interest or duty is one of the two questions which arise under s18 since each of its subsections uses the same set of words. But that question may not have to be reached because of another question arising from the first part of each subsection. Is Progressive’s application, duly made under s66, a “matter or thing” remaining to be completed at the point the old s47 was replaced? If so, under subs (2), the replaced s47 would continue to have effect as if not repealed for the purpose of completing that matter or thing. That argument requires that each of the two subsections of s18 be read as stating two distinct propositions, with the first not being controlled by the final clause of each:
(1) The repeal of an enactment does not affect
(2) A repealed enactment continues to have effect as if it had not been repealed for the purpose of
Progressive contends here, as it did without success in the High Court, that each subsection does state two distinct propositions.
[10] In addressing that suggested divided interpretation, we consider in turn aspects of the grammar of the provisions, their wording, their history, the wider context and relevant principle.
[11] There are two grammatical arguments supporting the divided reading. The first focuses on the verb “relate” used in each subsection:
(1) The repeal of an enactment does not affect the completion of a matter or thing ... that relate to an existing right, interest, title, immunity, or duty.
(2) A repealed enactment continues to have effect as if it had not been repealed for the purpose of completing the matter or thing ... that relate to the existing right, interest, title, immunity or duty. (emphasis added)
The lack of agreement in each sentence between the singular subject (“matter or thing” in each case) and the plural verb (“relate”) may suggest that the final clause does not qualify the earlier part of the sentence. The style books do not however agree. Rather a principle of attraction or of minimum distance applies:
See Sir Ernest Gowers, The Complete Plain Words (3rd ed Sidney Greenbaum and Janet Whitcut 1987) 129; University of Wisconsin – Madison Writing Centre, Writer’s Handbook (1997); and The New Fowler’s Modern English Usage (3rd ed R W Burchfield 1996) 36 (agreement .8) and 555 (or .1). It follows that lack of agreement between the singular noun and plural verb does not prevent the final clause from qualifying the first part of the sentence as well as the second.
[12] The second grammatical argument supporting the disjunctive reading of each provision is the lack of a comma immediately preceding the defining relative clause (“that relate to ...”). It is true that a comma would support the argument that the following clause qualifies each of the earlier parts of each sentence. But we do not see its absence as significant, especially given the lack of a comma after “thing” in each provision. The lack of any comma may indeed be seen as supporting the reading of each provision as a whole.
[13] We turn now to the wording of the two provisions and consider their potential effect if they are to be read in the divided way for which Progressive contends. The repeal of an enactment – which is generally accompanied by its replacement – would “not affect the completion of a matter or thing”; and the repealed enactment continues to have effect “for the purpose of completing the matter or thing”. As has been said in earlier cases, “matter or thing” are wide words (Spiers v Piako County [1969] NZLR 69, 75, and Comptroller of Customs v McHannigan (M697/97 Auckland Registry 25 September 1997), both addressing s20(g) of the Acts Interpretation Act 1924, quoted in para [17] below). It is difficult to see what limits can be placed on them. (The omission of the word “act”, used in s20(g), one of the sources of s18, does not appear to narrow the phrase.) Certainly, Mr Farmer QC, for Foodstuffs, did not attempt to argue that the application under s66 was not “a matter or thing” which had yet to be completed.
[14] Mr Stevens QC, for Progressive, recognising that the resulting provision appeared to be very wide and to put in jeopardy or at least to substantially delay the effect of newly enacted law contrary to Parliament’s purpose, submitted that “the matter or thing” in question would have to have been governed by the repealed enactment. The reading in of those words might answer, for instance, the situation of a company negotiating an acquisition at the time of replacement but not yet in a position to file an application under s66. But consider, say, the position if, after an application has been made, legislation alters the composition of the Commission or changes its procedure (as in the present amendment Act) or the applicable rules of evidence. On Mr Stevens’ argument the applicant would be able to insist that the repealed enactment continues to have effect as if not repealed for the purpose of completing the matter or thing governed by the repealed provision, with the consequence that the Commission must remain as previously composed, follow its previous procedure and apply its previous rules of evidence.
[15] Such a broad denial of the effect of the new provisions would often be impossible in practice or would at least cause real difficulties. It would also be contrary to regular practice and principle. New provisions of the type mentioned are routinely understood as applying to pending matters. While sometimes particular transitional and savings provisions make that new application clear (or very occasionally deny it), frequently there are no such provisions (see for example the changes to the law of evidence mentioned in R v Sotheran CA446/00, 4 April 2001, para [26], and the discussion of pending proceedings and relevant principle in the Law Commission’s report A New Interpretation Act (1990 NZLC R17) paras 206-207 and 213-221). In terms of principle, while, for the reasons indicated in Accolade Auto Hire Ltd v Aeromax Ltd [1998] 2 NZLR 15 and in the cases cited there, the distinction between substantive rights and procedural matters is not always decisive, it is still of general value. We return to those matters of principle later. The proposed gloss – which would require the adding of words which Parliament did not enact – does not go far enough to meet those problems of practice and principle.
[16] A final point about the wording of s18 concerns its heading, a matter relevant to ascertaining the meaning of legislation (Interpretation Act s5(2) and (3)). The heading is obviously truncated (as most headings are), for instance in its mention only of rights and not of the other legal interests listed in the provisions. What is significant is that it couples “enforcement” (the completion of the matter or thing and the bringing or completion of proceedings) with “existing rights”. It does not treat them separately. The significance of the heading is enhanced when it is related to s17. Under that provision, a repeal does not affect things that have already been done nor does it affect existing rights ... . That provision is concerned with substantive matters and it leaves to s18 the complementary matter of the processes for completing or enforcing them. Similarly, the two subsections of s19, concerned with offences and breaches, first, maintain the liability for the offence or breach despite the repeal and, secondly and as a separate matter, save the processes for investigating and imposing sanctions in respect of those past offences and breaches.
[17] That organisational and drafting separation between the protection of vested rights and other legal interests, on the one side, and the related processes for completing or enforcing them, on the other, was also to be found in the predecessor provisions in the 1924 Act. Section 20(e) was the principal provision dealing with the protection of existing rights and other substantive matters; its subparas (i), (ii) and (iii) are essentially reflected in s17(1)(a)-(c) of the 1999 Act. The procedures for enforcing those vested rights ... were mainly dealt with separately (although s20(e)(iii) also dealt with procedure), particularly in ss20(g) and (h) and 22. Those three provisions are listed in the notes to s18 of the 1999 Act and, according to the Explanatory Note to the Interpretation Bill, they were to be re-enacted with modifications by cl 18. They read as follows:
20(g) Any enactment, notwithstanding the repeal thereof, shall continue and be in force for the purpose of continuing and perfecting under such repealed enactment any act, matter, or thing, or any proceedings commenced or in progress thereunder, if there be no substituted enactments adapted to the completion thereof:
(h) Notwithstanding the repeal or expiry of any enactment, every power and act which may be necessary to complete, carry out, or compel the performance of any subsisting contract or agreement lawfully made, entered into, or commenced under such enactment may be exercised and performed in all respects as if the said enactment continued in force; and all offences committed, or penalties or forfeitures incurred, before such repeal or expiry may be prosecuted, punished, and enforced as if such enactment had not been repealed or had not expired.
22 Pending Judicial proceedings not affected by expiration of Act
The expiration of an Act shall not affect any judicial proceedings previously commenced under that Act, but all such proceedings may be continued and everything in relation thereto be done in all respects as if the Act continued in force.
[18] Section 22 has limited application, saving only judicial proceedings already underway and apparently being restricted to the expiry rather than applying to the repeal of legislation. By its very nature the protected judicial proceedings will relate to alleged facts, rights and duties which existed before the change in the law. It provides no basis for reading s18 in the divided way for which Progressive contends. Nor does s20(h) which in its first part is limited to contracts made or commenced under the old law; and in its second part looks to offences committed and liabilities incurred under the old law (a matter now dealt with by s19 of the 1999 Act).
[19] Of the three provisions, it is only s20(g), as a source of s18, which may provide support to Progressive’s argument. As Professor Burrows says, it had no equivalent in England, authority on it was slender and its extent was uncertain (Statute Law in New Zealand (1999 2d ed) 378). It is significantly different from s18 : it is limited to matters which are already underway at the date of repeal, while s18 also includes the later bringing of proceedings; it does not apply if there are new provisions adapted to the completion of the act, matter or thing, while s18 has no such explicit limit (although see s4(1)(a) and (b)); and it does not include, as s18 does, the relative clause at the end of each subsection of s18. Those differences mean that, while both provisions have in common that matters already underway are to be saved despite the repeal of the enactment under which they began, no particular help, on the current issue, can be gained from the earlier wording. The provisions do at least appear to recognise that significant processes and remedies may be entwined with the rights being saved and might, because they are procedural, be held to be repealed in the absence of such a savings provision.
[20] We turn now to the wider context and to principle. As in this case, counsel and the courts will resort to those matters and relevant authority when faced with difficulties in applying interpretation legislation. The common law concerning non-retrospectivity and related interpretation legislation have both long recognised the need to strike a balance between giving effect to Parliament’s will, aimed at changing the law and introducing new policies, on the one hand, and, on the other, to protect, for reasons of justice and fairness, positions already established under the old law. In terms of the second matter, courts and legislatures alike have stated the principle of non-retrospectivity and have protected legally recognised interests – such as rights, titles, immunities, duties, liabilities – which “exist” or have “vested” or “accrued”. If the general law lacks means or procedures to recognise, enforce or sanction those legally recognised interests, courts and especially legislatures may also recognise and save the continued effect of the procedures that supported those interests (eg ss20(e)(iii) (second part), (e) (final part), (h) (second part) and 22 of the 1924 Act; s38(2)(e) of the Interpretation Act 1889 (UK); and s16(1)(e) of the Interpretation Act 1978 (UK)). But if, broadly speaking, no existing, vested or accrued legal interests are put in jeopardy the new manifestation of Parliament’s will is to be given full effect.
[21] The wording of s18, its potentially very wide scope if the two part reading is given to it, the wider context and principle all lead us to conclude that each of the two subsections of s18 is to be read as a whole. The High Court reached the same conclusion.
An existing right, interest or duty?
[22] We accordingly now turn to the question whether Progressive’s application (the “matter or thing”) related at the time of repeal to “an existing right, interest ... or duty” in terms of s18. The High Court ruled that the application did so relate. Essentially the same question arises under s17(1)(b).
[23] The High Court judgment emphasised the word “interest” in s18. In its view
in the context of s18 with its emphasis on enforcement and having regard to the placement of the word “interest”, the term is intended, at least for the purposes of this case, to denote an enforceable interest in completion of the clearance applications. And since, subject to withdrawal or to deemed declination, the Commission has no discretion in the matter but must process a clearance application to determination one way or the other this Court takes the view that Progressive has a sufficient “interest” to enforce the completion of its application in the event that it needed so to do.
[24] The final part of that paragraph is to be related to the clearance processes set up by the Commerce Act (discussed in paras [29] - [33]). The Court made it clear that that “interest” in terms of s18 had to be, and was, an “existing ... interest”. Further, Progressive had an “existing right”:
An applicant for clearance has, in our view, an “existing right” to have that application determined by the Commission. As noted, the Commission has no discretion in the matter. It is bound, once an application is received, to proceed to determine it within the statutory time limits and in accordance with the statutory test. If the Commission decides that it is satisfied that the proposed acquisition will not infringe the Act, the clearance which it gives, if the acquisition proceeds, is more than an opinion: it confers both a statutory immunity on the applicant from impugnment of that transaction for a twelve month period and a consequent disability on all other persons, including competitors and the Commission, from the exercise of any powers under the Act in relation to that transaction for that period.
But what did that finding mean about the law to be applied?
Our finding that completion of the clearance applications outstanding on 26 May relates to an existing right, however, does not address the question as to whether the law applicable to those determinations shall be that in force before or after 26 May. The answer to that question lies in s18(2). It expressly continues a repealed enactment in effect for the purpose of completing a matter or thing which relates to an existing right.
[25] That approach was “also consonant with s17”:
By our finding, we have reached the view that the repeal of the former ss47 and 66 does not affect the validity (or invalidity if the applications are declined by the Commission or by force of statute) or the effect or consequences of the filing of the clearance applications. Similarly, the repeal of those sections does not affect any right or interest or the previous operation of ss47 and 66 or anything, namely the applications, filed under them.
[26] The Court held that that conclusion was consistent with precedent. Presumptions about economic rights, administrative practicality and policy considerations were not seen as having major impact although fairness and justice and administrative convenience were said to support the result reached on the basis of ss17 and 18.
[27] We now turn to the argument in this Court which covered much the same ground but went further.
The Commerce Act powers and processes
[28] We begin with the Commerce Act and then return to ss17(1)(b) and 18 of the Interpretation Act, and in particular to the term “existing right, interest, ...or duty”.
[29] The Commerce Act sets up an optional process for clearance which a person planning an acquisition, may invoke. If it does not seek and obtain a clearance but does go ahead with the acquisition, then it is at risk of the acquisition being challenged against the standard stated in s47 in proceedings brought by the Commission or other interested persons. The clearance, by contrast, means that s47 does not apply to an acquisition made in accordance with its terms (s69). That effect – which might be considered an immunity – arises of course in the future, after the application has been agreed to by the Commission – in this case after 26 May 2001. That effect or immunity was not “existing” at the date of the replacement of the test in s47. But was there a right, interest or duty which did exist?
[30] In support of the argument that there was, Mr Stevens rightly stressed the tight limits within which the Commission is to operate in considering clearance applications. He did that in part to distinguish cases involving discretionary powers which have been held not to provide a basis for a vested or accrued right, protected from new legislation, and to take advantage of cases under more tightly drawn legislation which were held to have provided for such rights which did continue. In the first category were cases such as Director of Works v Ho Po Sang [1961] AC 901 (JC) and Robertson v City of Nudawading [1973] VicRp 81; [1973] VR 819 (FC SC) and in the second cases such as NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685 (CA).
[31] The Commission, on receiving an application in the prescribed form, accompanied by the prescribed fee, must forthwith register the application and notify the applicant of the date of registration (ss66(1) and (2) and 60(1) and (2)). If the application is not in order, the Commission may register it and notify the applicant accordingly, return it or decline to register it until it is in order, in the last case notifying the applicant (ss66(1) and (2) and 60(4) and (5)). The applicant may withdraw its application by notice to the Commission (s68(4)). Within ten working days after registration or such longer period as the Commission and applicant may agree, the Commission must either give a clearance if it is satisfied that the acquisition will not have the effect stated in s47 or refuse the clearance if it is not so satisfied (s66(3)). If it does not reach a decision within the ten day or extended period it is deemed to have declined the clearance (s66(4)).
[32] The Commission can require the applicant to provide information it needs to exercise its functions and it may consult with any person who may be able to help it in making its decision (s68(1) and (5)). It may decide to hold a conference. The conference is to have as little formality and technicality as the requirements of the Act and a proper consideration of the application permit and the Commission is to have regard to all matters raised at any such conference (ss69B and 64). In the present case, the Commission records that, in the course of the investigation of the application, its staff spoke to a wide range of industry participants and sought further information from Progressive. It is also the case, as Mr Stevens said, that the Commission may grant a clearance only to the proposal put before it in the application. But that proposal can evolve in the course of the process. Under s69A, the Commission may accept a written undertaking given by the applicant. Such an undertaking is deemed to form part of the clearance given. That provision has a particular relevance in this case since, in the course of the consideration of its application, Progressive in fact gave the Commission an undertaking to divest itself of two supermarkets. This undertaking, we were informed from the bar, was given on 10 July 2001, three days before the Commission granted the clearance to the proposed acquisition. (Three extensions of time had been agreed to.) The Commission recorded the undertaking at the beginning of its decision, set out s69A, stated that it was able to accept the undertaking under that provision, and said that the undertaking formed part of the application. That is to say, the application was now different from that made on 25 May. At the relevant points in its decision, the Commission mentioned each of the two parts of the undertaking again and identified the proposed divestments in the reasons it gave for concluding that the acquisition would not result or be likely to result in a dominant position being acquired or strengthened. There was some difference in the argument before us whether the undertaking was the result of negotiations between Progressive and the Commission. We do not see that characterisation as significant. What is significant is the evolution – actual or potential - of applications while they are before the Commission. The situation may be a dynamic one.
[33] The situation affecting the application may evolve in another way. As Mr Stevens rightly accepted, the wider market in which the particular proposal is to be assessed might change and any such changes would properly be considered by the Commission in its application of the s47 test (see also s68(2) for a different type of change of circumstances). We should perhaps stress that whether the particular application in issue is the subject of the changes mentioned in this or the preceding paragraph is not significant for the argument being made : what is significant is the potential for such changes.
The Interpretation Act test
[34] Under the Interpretation Act, the replacement of a statutory provision – here the old s47 by the new – is not to affect an existing right, interest or duty (s17(1)(b)) or the completion of a matter or thing that relates to an existing right, interest or duty (s18(1)); and the replaced provision continues to have effect as it if were not repealed for the purpose of completing the matter or thing that relates to the existing right, interest or duty (s18(2)).
[35] Did Progressive at the moment of replacement have an existing right or interest in terms of the old s47? Or the Commission a correlative existing duty? So far as an existing right or duty is concerned, the questions must, we think, be answered No. Section 47, read alone, applies to an acquisition – something in the circumstances of this case which was to occur some time in the future and certainly after 25 May. Any determination of rights and duties under s47 alone would be by reference to its text as in force at the time any acquisition occurred. In this case that text would be the new one, not the old.
[36] Does it make any difference when s47 is read along with the provisions of s66? We do not think so. The Commission, within the statutory periods, is to be satisfied (or not) at the point of decision that the proposed acquisition “will not” have certain effects if and when it occurs. Those effects are effects which the applicant says will not or are not likely to occur in the future. Even at the point of Commission clearance, the acquisition contemplated by s47 had not of course occurred, but s66 requires its decision to be made by reference to s47. Parliament has expressly provided for that prospective comfort. But certainly at the point of application no right or duty “exists” in terms of s47. The acquisition is all in the future. As Mr Farmer put it, the Commission is not investigating or determining an existing right.
[37] Does the reference in s17(1)(b) and s18 to an “existing ... interest” make any difference to that conclusion? It will be recalled that the High Court placed that phrase at centre stage, and Mr Stevens supported that argument by reference to dictionary definitions of “interest” and aspects of the law of judicial review including the broad understanding of “interest” in the law of standing. While such references may be helpful, the term does of course have to be considered in the particular statutory context of the principle against retrospective effect and along with the saving by ss17 and 18 of existing rights and duties, as well as titles and immunities. There is also the difficulty that notwithstanding its longevity the word “interest” appears not to have been given a distinct meaning in the present context.
[38] We return to the High Court’s treatment of this issue. What it said was that Progressive had a sufficient or enforceable interest in the completion of its clearance application (paras [23]–[25] above) – but that, with respect, begs the question of what substantive law is to govern the completion of that application : does Progressive at the point of decision have an “existing interest” in terms of the old s47? That existing interest must be something more than the application itself – given the position taken by the High Court and this Court on the first issue (that each subsection of s18 is to be read as a whole). What is that “existing interest”? Given the terms of s47, the facts and the future looking nature of the s66 application it cannot be in the old, now replaced substantive test. Accordingly, we conclude that the term “existing ... interest” does not assist Progressive.
[39] So far we have considered this aspect of the case in terms only of the provisions of the Commerce Act and the Interpretation Act. We have not gone to the cases about the principle of non-retrospectivity and the broader reasons of policy supporting the legislative rules and the case law bearing on that principle. Codifying statutes, after all, should so far as possible stand on their own feet without constant reference back to their precursors: Bank of England v Vagliano Brothers [1891] AC 1071, 144-145. The terms of the Interpretation Act by themselves have brought us to a clear answer.
[40] The authorities and discussions of principle are however helpful in two respects at least. First, the authorities (many of which, moreover, interpret provisions like those in ss17-18) emphasise the “manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given”, to quote Lord Morris in Director of Public Works v Ho Po Sang [1961] AC 901, 922 (JC). In that case the argument based on the earlier law failed, essentially because at the time the law changed the claimant had no more than a hope that the certificate he was seeking would be given. Our case differs in that the Commission does not have a discretion under s66 (although it must make a judgment about future consequences), but what is common to the two cases is the absence of a right or other legal interest which existed, accrued or vested under the earlier law. The investigation here is to decide whether the applicant will be entitled for the following 12 months to make the proposed acquisition on the basis that the acquisition will not have certain consequences. That process is still “manifestly distinct” from the investigation of a right, existing at the time the application was made. The process under s66 involves a consideration of the factual position (including the relevant market) at the time the investigation is made and clearance application is being assessed. The decision can be affected by changes occurring after the application is made in respect of both the market and the application.
[41] Secondly, the broader statements of the policies underlying the principle of non-retrospectivity support the conclusion based on the wording of the Interpretation Act. The principle is about fairness and justice, and about not depriving persons of rights and interests already recognised by the law. That protective purpose does however have its limits. Parliament’s decision to introduce new policies – as emphasised in this case by the new statement of purpose in the Commerce Act – is not to be frustrated by allowing the old law to cast an inappropriately lengthy shadow over activity in the future.
[42] We accept that arbitrary consequences may appear to occur when new law is brought in with instantaneous effect (for instance in respect of those applicants who agreed in the present context to have their applications considered in extended periods after 26 May on the basis, stated by the Commission, that it would apply the old law). But changes in law may and do advantage some and disadvantage others depending on matters of timing. In this case, while expectations based on administrative understandings may have been dashed, no existing right or interest based on the old test was, we consider, denied. Further, administrative convenience cannot be preferred to the proper legal interpretation. Progressive’s right to have its application determined remained unaffected, but the determination was to be in accordance with the law in force at the time of the determination and by reference to the facts at that time. As at 26 May 2001, when the new test replaced the old, it had no existing right or interest founded on, or stated in, the old provision.
Result
[43] We accordingly, by a majority, allow the appeal and declare that the Commission was required to assess the Progressive application under the new test. Our decision does not address the consequence of the Commission’s failure to use that test in this particular case nor of course in other cases not before us.
[44] The appellants are entitled to costs of $5,000 and reasonable disbursements, including the travel and accommodation expenses of two counsel, to be fixed by the Registrar if necessary, and to be met equally by the two respondents. Costs in the High Court were reserved and are now to be fixed there in the light of this judgment.
THOMAS J
[45] I endorse the interpretation of s18 of the Interpretation Act 1999 adopted by Keith J in his draft judgment. It seems to me that the interpretation has the advantage of according with both principle and common sense.
[46] Because of the importance of the issue I wish to contribute some brief comments of my own.
A purposive approach to the interpretation of s18
[47] There are three substantive reasons for my belief that the correct interpretation of s18 is perfectly plain: the qualifying words, “that relate to an existing right, interest, title, immunity, or duty” are intended to apply to both the “completion of a matter or thing” and the “bringing or completion of proceedings”.
1) The purpose of the section
[48] First, s18 (as well as s17, which is to be read together with s18) should be interpreted so as to give effect to the rationale underlying the presumption against retrospective legislation, but no more widely than is necessary to achieve that purpose. Parliament has instructed the courts to ascertain the meaning of a statutory provision from its text and in the light of its purpose (s 5(1) of the Interpretation Act 1999). The purpose of s18 (and s17) is to avert the constitutional dissonance of retrospective legislation. Such legislation impinges on the rule of law in that it affects the rights enjoyed by citizens under the law.
[49] But those rights must be existing, vested or accrued rights before the citizen can properly complain. Theodore Sedgwick, a distinguished American jurist, describes a statute as retrospective “which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past”. (T Sedgwick, A Treatise on the Rules which Govern the Interpretation and Construction of Statutory and Constitutional Law, 2nd ed., 1874, at 160). Retrospective legislation is “contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law”. See Phillips v Eyre (1870) LR 6 QB 1, per Willes J at 23. As explained by Lord Mustill, the basis of the principle against retrospectivity “is no more than simple fairness, which ought to be the basis of every legal rule” (L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, at 525.)
[50] What manifestly shocks our sense of justice, then, is that an act, legal at the time of doing it, should be made unlawful by some new enactment. (Craies on Statute Law, 7th Ed, at 391). Citizens have acquired rights and acted on the basis of those rights in the expectation that they will not be arbitrarily or unfairly deprived of them by a sovereign Parliament in the future. It is for this reason that the presumption against retrospectivity is generally framed as a presumption against taking away existing, vested or accrued rights. See F A R Bennion, Statutory Interpretation (3rd Ed), at 235-236; J F Burrows, Statute Law in New Zealand (1999) at 359-362; Sir Rupert Cross, Statutory Interpretation (3rd ed) at 187-188; Craies on Statute Law, supra, at 387-391, and Ruth Sullivan, Statutory Interpretation (1997) at 187-194. Framed in this way, the presumption reflects the rationale or principle against retrospectivity.
[51] The focus on existing, vested or accrued rights is confirmed by the terms of s17, which provide for the effect of repeal generally. The repeal of an enactment does not affect “the validity, invalidity, effect, or consequences of anything done or suffered,” or “an existing right, interest, title, immunity, or duty” or “an existing status or capacity”. Nor does it revive any “other thing that is not in force or existing at the time the repeal takes effect”. Quite clearly, the section contemplates the protection of that which citizens have in hand. Unless explicit, legislation may not retrospectively affect these existing rights, etc. Section 18 then deals with the enforcement of those rights. It is clearly complementary to s17 and not intended to be wider in its impact than that section.
[52] It is axiomatic that not all changes in the law fall foul of the principle against retrospectivity. If this were so, changes in the law would limp into force and render much government unmanageable and inefficient. The impact of a change in government policy would be arbitrary or anomalous. Thus, the principle against retrospectivity must not only be construed in a way which makes it subservient to Parliament’s intent and sensitive to the dictates of fairness, but also in a manner which is realistic. It must be directed to protecting citizens from the unjust abrogation of existing rights; not to shielding citizens from changes in the law giving effect to changes in government policy which do not unfairly impinge upon their existing rights.
[53] The interpretation of s18 does not, of course, involve the application of the presumption against retrospective legislation. It is more critical. Section 18 is the very statutory provision which Parliament has enacted to give effect to the rationale or principle underlying that presumption. The section must be interpreted accordingly. Parliament must be presumed to have intended to give effect to the principle, but no more than that. Literalism, grammatical form, and doctrinal purity must bend to this over-arching purpose.
2) Not all matters or things
[54] Secondly, the phrase “completion of the matter or thing” cannot be unlimited or unqualified in its meaning. As conceded by Mr Stevens, the words “matter or thing” are too wide to have an unrestricted meaning. But what restriction, then, could Parliament have in mind? As Keith J demonstrates, qualifying the words so that they apply only to matters or things arising out of the repealed enactment would not adequately limit their wide general impact. Many matters or things to be completed under the repealed legislation could not possibly offend the principle against retrospectivity.
[55] Moreover, the contrary interpretation would deprive the presumption against retrospective legislation of the flexibility it had at common law. (See Burrows, supra, at 360). Staughton LJ’s statement of the principle in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712, at 724 (approved and applied by the House of Lords in Plewa v Chief Adjudication Officer [1994] 3 All ER 323, at 329) is particularly apt:
... the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.
If s18 is to apply generally to the completion of any matter or thing arising under repealed legislation, the question of unfairness will never arise. Nor will it be a matter of degree. The new legislation will simply be retrospective or not retrospective depending on whether the event or transaction in issue is a “matter or thing” under the repealed enactment. Parliament cannot lightly be charged with the intention of statutorily circumscribing the scope and application of the principle in this manner.
[56] It is therefore preferable to accept that the phrase “the completion of any matter or thing” is intended to be limited by the objective of protecting existing rights from the effect of retrospective legislation. And that effect is precisely summed up in the closing words - “that relate to an existing right, interest, title, immunity or duty”.
3) The heading
[57] Thirdly, the heading to the section; “Effect of repeal on enforcement of existing rights”, is a firm indication of Parliament’s intention. Sections 5(2) and (3) of the Interpretation Act provide, contrary to s5(f) of the Acts Interpretation Act 1924, that regard may be had to the heading to a section in ascertaining its meaning. Section 18 falls for interpretation in the very Act which enacted this extension to the law. Without derogating from Keith J’s treatment of this point, I would emphasise the fact that the heading refers to the qualification in issue, that is, the restriction to existing rights, etc. It would be odd drafting to seek to deal with two subject matters; the completion of a matter or thing and the bringing or completion of proceedings, and to then include in the heading a reference to a qualification relating to one limb of the subject matter only. Headings will surely seek to succinctly reflect the subject matter of the section and not a qualification relating to one part of the section only. This must be particularly so in this case when the draftsperson would know that, by virtue of an earlier section in the same legislation, the heading may be considered in ascertaining the meaning of the provision.
[58] Hence, the heading clearly points to the intended meaning of the section. Section 17 makes it clear that the repeal of an enactment does not, among other things, affect “an existing right, interest, title, immunity, or duty”. Section 18, as its heading indicates, then provides that the repeal will not affect the enforcement of such “an existing right, interest, title, immunity, or duty”. But this logical outcome will only be achieved if the heading accurately represents the substance of the section.
The interpretation applied to this case
[59] It remains to briefly consider the application of this interpretation to the circumstances of this case. In my view it is clear that the “right” claimed by Progressive Enterprises Ltd (Progressive) is not an existing right within the meaning and intent of s18. It does not trespass upon, or even approach, the boundaries of the principle against retrospectivity as discussed above.
[60] But what is the “right” (or “interest”) in issue? Clearly it is not the right to a clearance for the proposed acquisition, as the Commission has not reached a determination on Progressive’s application. Nor is it the “right” to apply for a clearance or to continue with the existing application for a clearance as Progressive still has that “right”. The alleged right (or interest) in issue can only be a right to continue with the existing application and to have it determined in accordance with the repealed test. In my view, it would be an exaggeration to suggest that Progressive had an existing right to have its application for a clearance determined on that basis. No existing right, interest or immunity is taken away contrary to the principle against retrospectivity as incorporated in the section. The principle is not offended.
[61] Let me clarify at once that I am not suggesting there should be a universal rule that applications which are current at the time of a change in the law are necessarily to be completed in accordance with the new legislation. The question in each case will be whether, in the context of the statute in issue and the absence of an explicit statutory direction, the matter or thing to be completed vests the applicant with an existing right, interest or immunity as construed above.
[62] In this case, contrary to Progressive’s claim, the “right” to continue with the application for a clearance was clearly just that; a right to continue with the application in accordance with the test applicable at the time of the Commission’s decision. In enacting the amendment to the Commerce Act 1986, Parliament provided that the new test would operate from 26 May 2001 when the amending legislation came into force. That point is not in dispute. The new test therefore applies to acquisitions of a business or shares which were undertaken prior to that date, but which have not been completed. An acquisition may have reached the point where its perfection is a formality, but the new test will nonetheless apply. The acquisition is a “matter or thing to be completed”, but the principle against retrospectivity is not infringed in that no existing, vested or accrued right or interest is taken away. The parties to the acquisition have simply been overtaken by a change in the law.
[63] The fact that a company may have applied for a clearance to an acquisition prior to 26 May does not alter this perception. Progressive had the “right” to give the Commission notice seeking a clearance under s66 for a period of a year. But it did not have a right to that clearance. Whether or not it obtained the immunity it sought would depend on the decision of the Commission. Progressive’s “right” to apply for a clearance prior to 26 May is too irresolute to be elevated into an existing right to have its application determined in accordance with the old test. Two further points support this conclusion.
[64] First, Progressive’s expectation in respect of its application could not reasonably have embraced any test other than the test in force at the time the application would be determined by the Commission. Over the years there have been many legislative changes reflecting the development of government policy in controlling the aggregation of market power. See John Collinge, The Law Relating to Restrictive Trade Practices and Monopolies, Mergers and Take-overs in New Zealand (1982) Chap 6, at pp 319-320 and 339-341. See also Y van Roy, “Commerce Amendment Act 1983 – necessary procedural change for mergers and takeovers” (1984) 14 VUWLR 203; Bernie Hill and Mark Jones, “New rules on competition: The background and implications of the Commerce Act 1986” [1986] NZLJ 190; and David Williams, “Mergers and takeovers under the Commerce Act 1986” [1988] NZLJ 238.
[65] A quick reference to the history of the relevant legislation relating to the control sought to be exerted by governments over the concentration of market power is sufficient to confirm that the law was continuously under review, never static, and almost certainly going to change from time to time to reflect current government policy. Having noted that the legal controls in the Commerce Act underpin the reliance placed on market forces in New Zealand, Lindsay Hampton concludes: “The Act plays a pivotal role in policy making”. (See Andrew Borrowdale Ed, Butterworths Commercial Law (4th Ed – 2000) at 551). It is unrealistic in such circumstances to suggest that a commercial entity could reasonably expect that an application for clearance which was extant at the time the law was changed would fall to be determined other than in accordance with the criteria laid down in the new legislation.
[66] Consequently, any test provided in s47(1) will reflect current policy, and it will change having regard to economic conditions and the approach of different governments. Commercial credulity would surely be strained by the suggestion that Progressive acted on the faith of a law that would not change or be likely to change. Its only tenable expectation was to a right to have the application determined in accordance with the law as it might stand at the time of the Commission’s determination.
[67] Secondly, it is to be emphasised that any clearance granted to Progressive would relate to a future period when the current law would prohibit the acquisition of assets or shares in a business if the result of the acquisition would have, or be likely to have, the effect of lessening competition in a market. To grant a clearance on the ground that the purchaser would not acquire a dominant position in the market at a time when that criteria was defunct would be to create an economic anomaly. Two tests would apply depending on when the notice under s66 had been given. But the essential point is that an applicant under s66 is not seeking an immunity for a past event or transaction; it is seeking an immunity for a future period and can be reasonably expected to take the law as it stands during that period.
[68] In short, Progressive does not have an existing right, interest or immunity which would invoke the principle against retrospectivity. It would, of course, be quite different if the company had obtained a clearance before 26 May. But that is not the case, and I would dismiss the appeal.
A tailpiece ... of grammar and punctuation
[69] There has been in this case a surprising focus on grammar and punctuation in seeking to arrive at the correct interpretation of s18. While I acknowledge that Keith J demonstrates that the grammar does not point conclusively to one meaning or the other, I have been discomfited by the prominence which these grammatical points have assumed. The use of the word “relate” instead of “relates” and the absence of a comma after the word “proceedings” and before the qualifying words “that relate to an existing right, interest, title, immunity, or duty” have been advanced as a strong indication of Parliament’s intent. At the very least, these features seem to have created a prima facie meaning which those who contend for a different meaning are expected to refute. With due respect, such an approach is indefensible.
[70] The days when Judges limited themselves to the bare reading of the words of the statute and called in aid grammar or punctuation to arrive at the meaning intended by Parliament have long since gone. That approach may have been prevalent in the nineteenth century. But it is now the twenty-first century, and a more realistic and constructive approach is required to determine and give effect to Parliament’s intention. Realistically, we know that the English language is notoriously imprecise and prone to unfailing ambiguity; we know that draftspersons, being human, are not vested with divine prescience or perfect clarity of expression and that they work under demanding and pressing conditions; and we know that Parliament often has no specific intent bearing on the competing interpretations before the Court, and that to ascribe a negative intent to Parliament on all such occasions would decimate the process of statutory interpretation.
[71] To be constructive we know that we must seek to garner the “sense” of a section having regard to the objective and scheme of the statute and the mischief it is designed to meet. See Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19, at 35. We know that Parliament and the courts are engaged in a “collaborative enterprise” and that this enterprise embraces statutory interpretation. See Philip A Joseph, “The Demise of Ultra Vires – Judicial Review in the New Zealand Courts” (2001) Public Law 354, at 358 and 368. See also, R v Hines [1997] 3 NZLR 529, at 580-582; Fulcher v Parole Board (1997) 15 CRNZ 222, at 242; R v Poumako [2000] 2 NZLR 695, at 718; and R v Pora [2001] 2 NZLR 37, at 75, for an elaboration of the optimal judicial approach to statutory interpretation.
[72] I would add, too, that I feel bound to admit of the possibility that the grammar and punctuation of a draftsperson entrusted with the task of reducing Parliament’s broad intention to concrete statutory form may be no better, or not much better, than my own. If this is so, it seems rather perverse to fix Parliament with an intent based on the grammatical expertise of the draftsperson! Indeed, in this case, if the so-called grammatical construction was intended, the draftsperson was singularly lax in failing to expressly qualify the words “matter or thing”, which it is common ground require some qualification, and in failing to make the scope of s17, relating to the effect of repeal generally, and the scope of s18, relating to the effect of repeal on enforcement of existing rights, consonant, the one with the other.
[73] Professing this approach, the possible failure of agreement between the noun and the verb, or the use of the intransitive verb, and absence of a solitary comma would not have impressed me, even if Keith J had been unable to refute the purported significance of these items.
[74] Focusing on grammar and punctuation is possibly the most extreme form of literalism. Speaking extra-judicially, Lord Steyn has proffered some telling comments on this subject. (Johan Steyn, “Contract Law: Fulfilling the Reasonable Expectations of Honest Men” 113 LQR 433, at 440-441. Although speaking of literalism in interpreting a contract what the distinguished Law Lord has to say is equally, if not more, applicable to statutory interpretation). Noting the shift away from a black-letter approach to questions of interpretation, Lord Steyn observes that the literalist methods of Lord Simonds are in decline. The purposive approach of Lord Reid and Lord Denning has prevailed. Lord Steyn then poses the question: what is literalism? He finds the answer easy. The tyrant Temures promised the garrison of Sebastia that no blood would be shed if they surrendered to him. They surrendered. And Temures shed no blood. He simply buried them all alive. That, says Lord Steyn, is literalism, and it has no place in modern law.
[75] So, too, I would add, dyed in the wool literalism has no place on this Court, and I am pleased to note that the Court is rejecting that approach in this case. As I am about to depart the Court, this decision permits me to conclude by adopting the tribute of Lord Bridge of Harwich to his fellow Judges in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344, at 354:
My Lords, since the populist image of the geriatric judge, out of touch with the real world, is now reflected in the statutory presumption of judicial incompetence at the age of 75, this is the last time I shall speak judicially in your Lordships’ House. I am happy that the occasion is one when I can agree with your Lordships still in the prime of judicial life who demonstrate so convincingly that common sense and the common law here go hand in hand.
This quotation needs only the correction of titles, place, and the substitution of the age of 68 as the age which gives rise to the statutory presumption of judicial incompetence in this country, to obtain my warm endorsement.
McGRATH J
[76] I differ from the majority on one crucial aspect of the judgment prepared by Keith J.
[77] The appeal concerns the interpretation of s18 of the Interpretation Act 1999 which provides:
18. Effect of repeal on enforcement of existing rights - (1) The repeal of an enactment does not affect the completion of a matter or thing or the bringing or completion of proceedings that relate to an existing right, interest, title, immunity, or duty.
(2) A repealed enactment continues to have effect as if it had not been repealed for the purpose of completing the matter or thing or bringing or completing the proceedings that relate to the existing right, interest, title, immunity, or duty.
[78] In my view the final clause in both s18(1) and (2), commencing with “that relate....”, qualifies only “proceedings” and not “matter or thing”. The plural “relate” is conclusive. Even if the drafter had inserted commas (or dashes) around “or the bringing or completion of proceedings” that would not have greatly assisted the appellant’s argument, as it would have exposed even more starkly the lack of agreement between the subject, “matter or thing”, and the verb “relate”.
[79] The Interpretation Act 1999 is a measure intended to simplify, clarify, and make more intellectually accessible interpretation legislation in particular and the statute book in general. Plain expression should not, however, detract from the precise nature of legal language which is the tool of the drafter of statutes. Generally this tells in favour of established meanings and style. In the present case the majority justifies accepting absence of agreement between the verb, and what it sees as the true subject, by reference to what the current edition of Fowler describes as “the phenomenon known as attraction or proximity”. (The New Fowler’s Modern English Usage, 3rd edition, p36 ed R W Burchfield, Clarendon Press, Oxford 1996). This gesture of recognition of colloquial usage, should not, however, be too readily invoked in the precise context to be expected in the language of an interpretation statute.
[80] Legislation in modern times has to be interpreted and applied by those who work with it. They do not comprise a rarefied group and are entitled to be able to read interpretation legislation in accordance with the correct grammatical meaning of the text. That, it seems, was done by the Commerce Commission and its advisers in this instance. In my view the application of s18 by the Commerce Commission was correct. The repeal of s47 of the Commerce Act 1986, on the coming into force of the Commerce Amendment Act 2001, does not affect the completion by the Commission of its consideration of applications then before it according to the statutory standard in place prior to repeal. Such consideration of applications is a “matter or thing” to be completed unaffected by the repeal measure.
[81] The majority say that this gives s18 a very wide meaning delaying, at times extensively, the full impact of statutory reform. There are three answers to that point. First, the context of both subsections in my view requires that the incomplete “matter or thing” concerns a process already brought under the Act to which s18 is being applied. So read the phrase is not as wide as the majority suggest. Secondly, s18 is a residual provision and Parliament can readily provide specifically for a different transitional mechanism when that is thought appropriate. That residual nature is reflected in the Explanatory Note to the Interpretation Bill, which stated in respect of the clause that became s18:
Clause 18 has been included in the Bill in view of the risks that the transitional provisions may not always be adequate to cover all the situations that may arise on the repeal of an Act as well as to provide certainty. The provisions also avoid the need for express transitional provisions in particular Acts in many cases.
[82] Thirdly, there is no indication in the Explanatory Note or elsewhere that the legislature intended other than to maintain in s18 the breadth of the position under the Acts Interpretation Act 1924. Section 20(g) of that Act provided:
Any enactment, notwithstanding the repeal thereof, shall continue and be in force for the purpose of continuing and perfecting under such repealed enactment any act, matter, or thing, or any proceedings commenced or in progress thereunder, if there be no substituted enactments adapted to the completion thereof.
[83] Finally I would reiterate my view that it is of particular importance in applying the Interpretation Act to give effect to the ordinary established meaning of its text as far as practicable. Unless that approach is followed, the greater accessibility to statute law that the Interpretation Act is intended to provide will not eventuate.
[84] It follows that I would uphold the judgment of the High Court, albeit on a different basis, and dismiss the appeal.
Solicitors
Phillips Fox, Auckland for the
Appellant
Commerce Commission for the First Respondent
Russell McVeagh,
Auckland for the Second Respondent
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