DLA Phillips Fox
Added: Jul 22, 2012
Commerce Act no Assistance to Aggrieved Software Provider.
A recent High Court decision (Integrated Education Software Limited v Attorney-General [2012] NZHC 837) has highlighted the difficulties faced by suppliers who seek to use the Commerce Act 1986 to attack rules and standards imposed by public sector procurers.
In this case the supplier argued that a regime that imposed new regulations and higher standards was a breach of the Commerce Act 1986, as it had the purpose of restricting entry, deterring or preventing market participants engaging in competitive conduct and/or eliminating suppliers from that market.
The High Court rejected this argument, finding that although these may be the resulting effects of imposing a new regime, the true purpose of the regime was to enhance the quality of services. In setting standards, the Ministry was also not engaged ‘in trade’.