TRADE MONOPOLIES PREVENTION BILL

Oamaru Mail, Volume XXVIII, Issue 8287, 16 September 1903, Page 1

TRADE MONOPOLIES PREVENTION BILL

By Telegraph. Wellington, September 15.

I forward herewith for public information a copy of Trade Monopolies Prevention Bill, a Bill intituled an Act to protect legitimate trade and commerce by prohibiting monopolies detrimental to the interests of the people: "Be it enacted by the General Assembly of New Zealand in Parliament assembled and by the authority of the same as follows: "1. The 'short title of this Act is the Trade Monopolies Prevention Act, 1903. "2. In this Act, if not inconsistent with the context, 'Court' means the Court for the investigation of monopolies provided for by this Act; 'goods' means any of the following articles whether in the state of raw material or in any preparatory or final stage of manufacture : —(i.) All articles of food and drink; (ii.) All kinds of building material and furniture; (iii.) All articles of clothing, including boots and shoes; (iv.) All articles of fuel; (v.) .Soap and candles ; (vi.) Gas and electricity, when used for lighting: (vii.) All kinds of agricultural implements. 'Manager' means any secretary, foreman, overseer, or other officer of any company in any position of control or authority. 'Reasonable Trade Competition' means such competition in any trade as will not prevent or tend to prevent individual traders or firms or limited companies engaged in such trade and possessed of sufficient capita], knowledge and business capacity for carrying on such trade from earning the fair average profits- commonly earned by traders in such trade in the absence of any trade monopol}-, provided that in determining what amounts to reasonable trade competition the Court shall be guided not only by the interests of the traders concerned, but principally by the .following considerations : —(1) The interests of the consumer or purcliasers of the goods sold by those engaged in such trade; (2) the interests material and social of the public generally in. respect of such trade; (3) the distinction between competition in the wholesale and retail branches of such trade respectively. 'Trade monopoly' means (a) any agreement whether in writing or not, whether expressed or implied, and whether all or only one or some of the parties thereto are resident in New Zealand, the dominant, or one of the main objects whether direct or indirect of which is (i.) to destroy, restrain or prevent the reasonable trade'eompetition of other traders in the same or -a similar trade, and whether in New Zealand or not with the parties to sucli agreements, or (ii.) to enhance the price of goods sold by the parties to such agreement, whether such parties are engaged in the same trade or not, beyond the price reasonably obtainable for such goods, if such price were determined by the operation of reasonable trade competition in the absence of such an agfeement;' by any method of conducting or carrying on trade (including in the term 'method' the formation of a trust or combination of any sort, whether corporate or incorporate witli an abnormal amount of capital or abnormally extensive operations for any particular trade) Whether such method is employed by one trader alone or by several traders, the dominant, or one of the main objects—whether direct- or indirect—of which is that hereinbefore specified in sub-paragraphs (i.) and (ii.) of the last preceding paragraph (a) hereof. 'Trade' means any business one of ilie -purposes of carrying on which is to sell goods, whether such ; goods are produced or manufactured by the person or company earrying on such business or not. Trader' means any person, incorporated company or trust carrying on any trade, arid includes the agent in New, Zealand of any British or foreiEii company or of any- person carrying on trade out-side-New Zealand.. *'

. "3. Trado monopolies are hereby declared to bo '.-

"4. For the investigation of trade monopoly there shall be one Court, which eiial' consist of three members as follows : The Chief Justice, the Judge of the Supreme Court other than the Chief Justice usually presiding in the judicial district within which the defendant is resident (within the meaning of the code of civil procedure of the Supreme Court, or if more than one defendant, and they axe resident, in different districts, then for that judicial district in which that defendant, is resident, whose name appears .first in the information referred to in section 20 hereof, the Judge of the Supreme Court whose usual place of residence is nearest to the usual place of residence of the Judge selected in the manner provided by the last preceding paragraph hereof. Provided that in any case where, in the. opinion of the Chief Justice, it is otherwise impossible to constitute the Court under this section he sliii'l nominate two of the Judges of tlie Supreme Court to be members of such Court, and thereupon the two Judges so nominated sliall, together with the Chief Justice, constitute such Court. Provided also that where the Chief Justice is unable to sit he shall nominate some other Judge of the Supreme Court to be a member of tiie Court.

"5. (i.) That, the Court shall be constituted to hear and try each matter as it arises, and shall, ipso facto, he dissolved when it has pronounced its final judgment or order in each such matter; (ii.) the validity of the constitution of the Court, shall in no case be questioned.

"6. The Court shall have a seal, which shall be judicially notified in all Courts of Judicature and for all purposes. "7. The Chief Justice sliall be president of the Court, or, if he be not a member of the Court, the senior (Puisne Judge of the Court shall be president. "8. The Court may decide all questions submitted to it by the opinion of the majority of its members, and the determination of tiie majority shall be deemed a determination by the whole Court.

"9. The Court sliall sit in such town in New Zealand as the president deems most convenient for the hearing of each case, and may adjourn from time to time and from place to place as is decided. 10. The Court shall, in addition to the Powers conferred on it by tms Act, have all the rights, powers, and privileges of the Supreme Court so far. as they are applicable or necessary for the purposes of carrying out the objects of this Act, and in the case of any interlocutory application any member of tiie Court shall have power to hear the same and make any order thereon, he may see lit: Provided that any such order may be set aside or modified by the Court oil application in that behalf.

11. The 'Court shall follow mutatis mutandis the procedure of the Supreme Court in civil cases except where such procedure, is expressly modified by tins Act or the relations under this Act.

12. Whenever it is necessary to alter or correct any order, judgment, direction, or decree made or given by the Court so as to sxprois the real intention of the Court, the Court, may of its own motion, or on the application of the registrar or of any other party to the proceedings, make such alteration or correction; and the president of the Court at the hearing at which such order, judgment, direction, or decree was made or given may from, time to time, notwithstanding that the iCouit may have been dissolved, ask the other co-members of the Court to sit with him, and such sitting sliall for all purposes be deemed to be an adjourned sitting at which such order, judgment, direction, or decree was made or given. "13. In. all prosecutions, hearings, ana proceedings under this Act no person shall bo excused from attending and testifying as a witness, or producing to the Court any books, papers, letters, contracts, or other documents in his jjorsession or under his control relating in any manner to the subject matter of such prosecutions, hearing, or proceedings. Provided that no pei>on called as a witness by the informant in any prosecution under this Act sliall be subject to any fine for or on account of any transaction, or thing concerning which he gives evidence, or with respect to which he produces any books, papers, letters, contracts, or other documents. But this shall not prevent the Court from exercising any of the powers conferred on it by section 24 hereof other than that, of imposing the. line therein provided for upon the person so called.

"14. (i.) The Governor may from time to time appoint one or more persons to assist in carrying out the purposes of this Act, and may define their powers, functions, and duties, (ii.) Every Registrar of the Supreme Court shall be deemed to be a Re. gistrar of the Court under the Act. "15. Any Registrar of the Court shall, on receiving a notice in writing, under the hand of either the Minister of Labor or the Minister of Commerce, and Industries, or a petition in the form in the schedule hereto, or to the like effect., signed by no less than fifty residential persons, that there are reasonable grounds lor bc-lieving that a trade monopoly exists, forward t.he same to the Jnsiseotor of Police for the district, in which any alleged party to such trade monopoly is resident, within t.he meaning of section 4 hereof.

"16. (i.) On receipt of such communication the Inspector of Police shall make inquiry as to the truth of such complaint, and if, as the result, of such inquiry, he lias gootl reason to believe that any trader is guilty of a trade monopoly, he shall report. such belief and the grounds on which it. is based to the Commissioner of Police,

who shall thereupon forward to the SolicitorGeneral anel to tiie Auditor and (JontrollerGeneral copies of such reporr. (ii.) The Solicitor-General anel the Auditor and Con-troller-General may in their discretion call upon such tsader to produce- to them or to any Crown Solicitor and Audit Inspector appointed by them in writing for that purpose all such books, papers, accounts, contracts, 'letters, or other documents as the Solicitor-General and Auditor and Control-ler-General require; (iii.) thereupon suc-h trader shall produce to t.h:> Solicitor-General and Auditor and Controller-Cineral. or to the Crown Solicitor and Audit In.-pector appointed as aforesaid, all inch liool:.,, papers, accounts, contracts, litters, and ether documents accompanied Ity a statutory declaration to be made by such Under, or in case of a corporate body by its manager, to the effect that a, full and complete, discovc-ry has been made to the Solicitor-General and Auditor and Controller-General or to the, said Crown Solicitor anel Audit. Inspector, as the case may be. of all such books, papers, accounts, "contracts, letters, or other documents in the possession or under the control of such trader, and tliat- tli- > same havebeen produced to the Solicitor-General and Audit and Controller-General or to the said Crown Solicitor and Audit Inspector. ■'l7. 'Ev-»ry trader, whether -a- corporate company or not, who fails to pj-oduce such books, papers, accounts, contracts, letters, and other documents to the Solieitov-Ui floral and Auditor and Controller-General, or to the Crown Solicitor and Audit Inspector appointed as aforesaid, accompanied by such declaration as aforesaid, is liable, to a fine not exceeding £3OO. "18. (i.) If as a result of their investigation the Solicitor-General and Auditor and Controller-General find, prima facie, that a trade monopoly exists they shall report accordingly to the Attorney-General,- who shall prepare, an information against, the trader appearingtt> be guilty of such tradu monopoly, and direct the Registrar of the Court at the Supreme Court Office in which tlv .information is to be filed under section 20 hereof to lay the same ; (n.) If of Attorney-General is vacant the SolicitorGeneral shall act under this section without the necessity of such report. "19. The information sliall in every case be on behalf of' his Majesty, and shall be in the form or to the effect stated in the regulations made under the Act, and shall state generally the grounds upon which such information is laid. "20. (i.) Such information 6hall be filed in the principal office, of the Supreme. Court in -the judicial .district in which the defendants are resident, or if resident in different districts then the principal' office of the judicial district, in which tliat" defendant. is resident whose name appears first in suc-h information, and in case of any doubt or uncertainty as to the. office in which' such information should be filed the Chief Justice, on application to him in that ■behalf, 'shall determine the office in which

such information slmll bo laid ■, (ii.) tho Registrar of tlio Court, shall thereupon issue and cause to 'be served upon every defendant, named therein a summons in the prescribed form requiring him to appear before tho 'Court on the day and at the hour named in such summons, being not earlier tlum 21 days from t.lie serving of such summons, to, answer the charge contain-,:d in the said information.

"21. v\t the hearing of any information as t.o a trade monopoly the Court, may admit. any evidence it thinks fit, whether such evidence is strictly legal or distinctly relo vant or not.

"22. It- shall bo. prima fade evidence against a defendant of a trade monopoly that since its commencement the. goods sold by the defendant in tin* business in which such goods are sold have since such date been abnormally high. "23. In determining tho profits made by any trader for the purposes of the last preceding .section the Court shall, if it thinks fit, first ascertain the .full market value of ail the assets of the said business (excluding goodwill), assuming such lmsiue*s were sold as a going concern, anil if the rate of profits made by tin* defendant calculated upon such full market value, is in excess of the fair average profits made by other traders in the same trade as tile defendant, calculated in the. same way, such profits may be deemed abnormally Ingli within 'tile meaning of the last preceding section. "24. At the same time and place fixed for the hearing of such informations the Court shall hear evidence.as to such alleged monopoly, and if satisfied that tlia defendant has , been guilty of a trade monopoly it may in its discretion, by order or decree, do anyono or more of the following things—(a) Declare that the defendant has been guilty of a trado monopoly ; (b) declare all or any agreement it thinks fit tending to establish or promote such monopoly illegal, including agreements for supplies of goods to the defendant guilty of such monojioly ; (c) declare that all or any contracts thereafter entered into with such defendant in furtherance of such monopoly, including contracts for the sale and supply of goods by such defendants will bo void and be unenforceable, provided that the Court may._ in making such declaration, qualify it in such a manner as it thinks fit in order to protect any person contracting with such defendant bona tide and in excusable ignorance of such declaration ; (d) enjoin such defendant from further carrying on business in any manner amounting to a trade monopoly, and such injunction shall have the force, effect, and consequences of an injunction granted by a .Judge of tins Supreme Court in any action under the Supreme Court Act, 1882» (c| if such defendant is a corporate compai.y may order .sucli company to be wound up, ."'ul thereupon the company »ha)l l.v wound up in the same way as if an order for the compulsory liquidation of the company had been made hy the Supreme Court under the 'Companies Act, 1882; (f) impose a line i.pon mic.li defendant of a sum (exclusive of costs) not exceeding £IOOO ; (g) order any defendant to pay to the Crown sum costs ami expenses (including expenses of witnesses), as it may _ deem reasonable, and may apportion such costs between the defendants (if more than one) as it thinks fit; (h) declare any defendant not irnilty of an alleged monopoly, and award to him such costs and expenses (including expenses of witnesses) as may he deemed reasonable, and thereupon such defendant shall be entitled to be paid by (lie 'Crown the moneys so awarded him.

"25. For (hi: purpose of enforcing payment of any moneys payable by any defendant under any order of (lie Court a certificate in tin.' prescribed form under the hand of tlio Registrar of the Court and the seal oftlm Court, specifying (lie amount payable anil the respective defendants by whom the saino is payable, may be iil'd in any Court having civil jurisdiction to (he extent of such amount, and shall thereupon, according to ill! tenor, bo enforceable in all respects as a. final judgment undir the Crown Suit.s Act, 1881, of such Conn in its civil jurisdiction. "26. Proceedings in the Court shall not lio impeached or held bad for want of form, nor shall the same be removable to any other Court by certiorari or otherwise, anil mi proceedings, judgmt-nk decree or order of the Court .shall be liable to be challenged, appealed against, reviewed, quashed, or called ill question by any Court, of judicature on any account wlr.ifi ver, lint «hall have full effect, anil shall lie observed, act. cd upon, and obeyed by all Courts of jurisdictimi.

"27. Xo proceedings in tin" (.'oiui klijill. abate by reason of the < 1 ■llll of any party to such proceedings, but tlis same may lio continued and disposed of by the successor in office of such member or Icirat peixonal representative of the parly so <lyin^,'''2 B. If any member of the Court dies, resigns, or refuses, or is npnl>!<■ to sil. before, the Court- has pmmmmvd its lin.nl judgment, decree, or order, tin' proetvumgs shall not abate, but the 'Chief .lnstwv, or if 1»k be such member. then the two other Judges of the Court may appoint another r»f the Puisne .ludjr.a of the Supreme Court to take the place of the members so dying, resigning, or refusing or being nilaide to sit.

'•29. All moneys payable to I lie Crown uader this Act shall be paid into I he public account and form pari of the consolidated fluid and all moneys payable by he Crown shall be paid out of moneys to be appropriated by Parliament..

"30. The Governor may from time (0 time, by Order-in-C'ouncil, gazetted, make .such regulations as he thinks li 1. prescribe ihe mode of convt'iiiiii; the Court, the procedure of the Court, order payment of fees in respect of proceedings, and generally carrying into eflVct the purposes of the Act." .