Wellington, Feb 28 NZPA - Commerce Commission efforts to pursue public interest law in New Zealand through class actions are being constrained by rudimentary enforcement provisions in the Fair Trading Act, according to a Court of Appeal judge.

"There may well be a case for saying that the various problems need picking out and solving in a revision of this statute," Justice Grant Hammond said yesterday.

He was one of a panel of three judges who ruled that a Commerce Commission win in the High Court in 2006 against time giant Carter Holt Harvey for price gouging -- selling weak wood for premium prices labelled as strong wood -- should be struck out because the prosecution was started more than three years after the commission found customers were being ripped off.

In 2006 it won a judgment in which CCH was fined a massive $900,000 -- one of its biggest wins under fair trading law -- but now faces paying huge legal costs in both the Court and the appeal court.

Justice Hammond, who noted the CCH had behaved in an aggressive and bullying way to try to scare off the commission, said he had some concerns about the case, and that "representative" or "class action" lawsuits were an area of serious underdevelopment in New Zealand law.

"This lack of development poses a distinct impediment to the development of what is sometimes called "public interest law" in New Zealand," he said.

The Fair Trading Act implicitly recognises a valuable role for the Commerce Commission "but the enforcement provision in the Act are, with respect, at best rudimentary".

He said that were questions over whether the requirement to start proceedings within three years of becoming aware of the likelihood of loss or damage was too strong or too weak.

Justice Hammond suggested one remedy could be a "notice" provision where a regulator could give formal notice it was investigating, and the limitation "clock" was stopped.

And he questioned why the commission could not have taken all its actions against the company and its executives in the High Court, instead of splitting some off to the District Court.

"If New Zealand is not to have better and more modern law on representative or class action suits, then the position of another body - such as the commission - which has a distinct interest in this area may need more appropriate provisions," he said.

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