An Experienced Litigator
Ben is an experienced trial and appellate litigator in the civil and criminal jurisdictions, appearing in the District Court, High Court, Court of Appeal and Supreme Court. He has a particular focus on prosecutions, regulatory enforcement proceedings, judicial review and statutory appeals.
Ben has worked on litigation of all sizes, from small prosecutions to large multi-party commercial proceedings. Prior to joining the Bar, Ben was responsible for an extensive portfolio of Competition and Consumer litigation for the Commerce Commission.
Some of his significant cases as counsel in the competition, consumer and regulatory fields include:
- New Zealand’s leading appellate cases on the Fair Trading Act, Godfrey Hirst v Cavalier Bremworth  3 NZLR 611 (CA) and Commerce Commission v Steel & Tube Holdings Limited  NZCA 549.
- New Zealand’s leading appellate cases on the investigatory powers of the Commerce Commission, Commerce Commission v Air New Zealand Ltd  2 NZLR 194 (CA) and AstraZeneca Ltd v Commerce Commission  1 NZLR 297 (SC).
- New Zealand’s leading case on merger clearances, Commerce Commission v Woolworths (2008) 12 TCLR 194 (CA).
- Significant appellate cases in relation to the regulation of the telecommunication and dairy industries, Vodafone v Telecom  3 NZLR 153 (SC) and Fonterra v Grate Kiwi  2 NZLR 184 (SC).
- Significant cartel cases including the ‘Cardboard’ cartel (Commerce Commission v Visy Board  NZCA 383 (jurisdiction),  NZHC 2097 (penalty) and Commerce Commission v Hodgson  NZHC 649), and the Compressors cartel (Commerce Commission v Whirlpool SA  NZHC 2109).
- Significant competition cases including Commerce Commission v Bay of Plenty Electricity (HC), Commerce Commission v New Zealand Diagnostic Group (HC), and Godfrey Hirst v Commerce Commission (HC).
- Significant fair trading prosecutions including Commerce Commission v Trustpower Limited  NZDC 18850, Commerce Commission v Brand Developments Limited  NZDC 21374, and Commerce Commission v Love Springs & Smart (the largest penalty against a director under the Fair Trading Act).
Outside of this work, Ben has taken a range of cases for other regulators including:
- Civil pecuniary penalty cases under the Unsolicited Electronic Messages Act 2007: Department of Internal Affairs v Image Marketing Group  NZHC 139 and Department of Internal Affairs v Mansfield  NZHC 2064.
- Criminal Prosecutions in relation to fraud associated with the proceeds of regulated gambling, R v Cosgrave (DC) and Department of Internal Affairs v Raki (DC) and Raki v Department of Internal Affairs  NZHC 3550.
- Defending a collateral challenge to the Northern Gateway toll regime, Grueber v New Zealand Transport Agency  NZHC 2924 .
As a Crown prosecutor, Ben prosecuted serious criminal offending on behalf of the Crown including as lead counsel in criminal trials in the District Court, and numerous criminal appeals to the High Court. Appeals of interest included Thompson v Police  1 NZLR 848 (a New Zealand Bill of Rights Act case on disorderly conduct), Alan Shore v Police  NZHC 503 (counsel error) and Landmark v Police  NZHC 1280 (encouragement of antisemitic desecration of graves).
At the Commerce Commission, Ben advised on a wide range of investigations and decisions, and was responsible for a range of significant proceedings that resulted, including:
- Over 70 mergers clearances and section 47 investigations, across a wide range of sectors, resulting in four successful section 47 proceedings (Commerce Commission v OfficeMax Holdings, Commerce Commission v Wilson Parking NZ, Commerce Commission v First Gas  NZHC 231, Commerce Commission v Objective Corporation), two clearance appeals (both of which were withdrawn), and one judicial review (withdrawn).
- Eight authorisations, including two authorisations that were unsuccessfully challenged in the High Court and Court of Appeal (Godfrey Hirst NZ Limited v Commerce Commission  NZCA 560 and NZME Limited v Commerce Commission  NZCA 389).
- A wide range of restrictive trade practice and cartel investigations, resulting in eight successful cartel proceedings (Commerce Commission v GEA Milfos, Commerce Commission v Ronovation, Commerce Commission v Prices Pharmacy, Commerce Commission v International Racehorse Transport, Commerce Commission v Specialised Container Services, Commerce Commission v Hutt & City Taxis, Commerce Commission v Moola, Commerce Commission v Oceanbridge & Mondiale), as well as the trial and appeal stages of Commission’s successful prosecution of the Hamilton Real Estate cartel, concluding with Lodge Real Estate v Commerce Commission  NZSC 25.
- A range of substantial consumer prosecutions, including the Commission’s successful Steel Mesh Prosecutions, and the Commission’s successful prosecution of Vodafone over its ‘FibreX’ campaign, the Commission’s first Crimes Act case to go to trial, R v Mehta (sentence of imprisonment upheld on appeal in Mehta v R  NZCA 491), and a range of significant corporate penalties including Harmoney, Youi, Bike Barn, and Reckitt Benckiser.
- Significant consumer credit prosecutions, including a campaign of successful prosecutions against mobile traders resulting in penalties in excess of $1,500,000.