AREAS OF EXPERTISE
Arbitration, Civil and Commercial Litigation, Competition Law, Equity and Trusts, Internet and Technology Law, Maori and Treaty of Waitangi issues, Public and Administrative Law
YEAR OF ADMISSION TO THE BAR
1994 (NZ), 1999 (NSW)
James is an experienced competition and regulatory lawyer with a wide-ranging commercial litigation practice. James is regularly recommended in guides such as Chambers and Who's Who Legal ("He is a formidably smart lawyer who is very, very good at what he does").
James has appeared in the High Court, Court of Appeal and Supreme Court in a wide range of cases. He has also acted as an arbitrator.
In addition to his litigation practice, James has been engaged in a number of law reform, public policy and market design projects in the electricity, banking, dairy and telecommunications sectors.
- BA (Hons) in Economics, University of Otago (1991)
- LLB (Hons), University of Otago (1992)
- LLM, Harvard Law School (1994)
- D.Phil, University of Oxford (1998)
Before joining the independent bar in 2013, James was a partner at Russell McVeagh (2001-2013) in the corporate and litigation groups, and was chair of the national litigation team. He has significant experience in the dairy, transport, energy, financial services, telecommunications and information technology sectors.
James has a doctorate in Artificial Intelligence and Legal Reasoning from the University of Oxford. Before joining Russell McVeagh, James was an intern in the legal division of the IMF (Washington DC, 1995) and a consultant on legal regulation of the internet at the OECD in Paris 1998.
James has taught the Law and Economics course at Victoria University and a course in Markets and Regulation as part of the University of Auckland LLM programme.
Appointments / Professional engagements
- Treasurer of Lawyers for Climate Action NZ Inc, 2019-.
- Fellow of the Law and Economics Association of New Zealand, elected 2023.
- Trustee of the New Zealand Film Festival Trust, 2016-23.
- Advisor to Citizen AI (chatbot-based legal information provider), 2018-20.
- Trustee of LawSpot (online pro bono legal advice service), 2013-2017.
- Member of the Council of the University of Otago, 2004-2012.
- Adjunct lecturer, Markets and Regulation, University of Auckland (2014).
- Adjunct lecturer, Law and Economics, Victoria University (2000, 2011–2014).
- Adjunct lecturer, Cyberspace Law, Victoria University (1999).
- Acting for Ngāti Apa ki te Rā Tō in the “Nelson tenths” litigation relating to a breach of fiduciary duty by the Crown where Ngāti Apa ki te Rā Tō supports the overall claim, but says that the plaintiff’s list of customary owners is not complete (High Court, heard August-October 2023).
- Acting for Powerco and Vector as respondents in the Major Gas Users Group’s appeal of various Commerce Commission price path determinations (High Court, heard October 2023).
- Acting for various lenders and financial service providers in relation to potential breaches of the Credit Contracts and Consumer Finance Act 2003 and the Financial Markets Conduct Act 2013 (including Financial Markets Authority v Kiwibank  NZHC 2856; Westpac New Zealand’s settlement with the Commerce Commission relating to initial disclosure for credit cards (2020); and Kiwibank’s settlement with the Commerce Commission relating to variation disclosure (2020)).
- Acting for Bachcare in an unfair contract terms claim brought by the Commerce Commission (ongoing).
- Acting for Lawyers for Climate Action NZ Inc in a judicial review claiming insufficient ambition in the Climate Change Commission’s recommendations re New Zealand’s nationally determined contribution under the Paris Agreement and our domestic emissions budgets (Court of Appeal, heard October 2023).
- Acting for Winton Land in a Commerce Act claim alleging misuse of market power by Kāinga Ora (ongoing).
- Acting for Students for Climate Solutions in a judicial review of the Minister for Energy’s decision to grant petroleum exploration permits (Court of Appeal, heard May 2023).
- Acting for NGB Properties in relation to a restrictive covenant which contravened of s 28 of the Commerce Act (Commerce Commission v NGB Properties  NZHC 2005).
- Acting for Lawyers for Climate Action NZ Inc in a successful judicial review of the 2022 settings for the emissions trading scheme (Lawyers for Climate Action NZ Inc v Minister of Climate Change  NZHC 1835).
- Acting for Meridian Energy Limited as second respondent in successfully defending judicial review proceedings brought by Nova, Trustpower and others in respect of the Electricity Authority's transmission pricing methodology (Nova Energy Limited v Electricity Authority and Meridian Energy Limited  NZCA 275).
- Acting for Te Rūnanga o Ngāi Tahu in a judicial review proceeding concerning the entitlement as between two iwi to the jawbones from two stranded sperm whales (Hart v Director-General of Conservation & Anor  NZHC 1011).
- Acting for Te Rūnanga o Ngāi Tahu in relation to a potential change to the allocation of surplus assets under the Māori Fisheries Act 2004 (Te Rūnanga o Ngāi Tahu v Te Ohu Kai Moana Trustee Ltd  NZHC 302).
- Acting for the Commerce Commission as intervener in a judicial review brought by Chorus as to the validity of regulations prescribing the terms of certain fibre services under the Telecommunications Act (Chorus Ltd v Minister for the Digital Economy  NZHC 3602 and  NZHC 662).
- Acting for the applicants in a successful judicial review of the Teaching Council’s decision to increase registration fees and reduce the term of registration (Jones and PPTA v Teaching Council  NZHC 1581).
- Acting for the Commerce Commission in a price fixing claim involving an agreement between competing consumer loan providers not to bid on each other’s brand names on Google Ads (declarations of breach granted in Commerce Commission v Moola.co.nz Limited  NZHC 3423).
- Acting for the Commerce Commission in proceedings against a peer-to-peer lender under the Credit Contracts and Consumer Finance Act 2003 which was settled in August 2021 with Harmoney admitting it had charged unreasonable fees and repaying $7m (Harmoney Ltd v Commerce Commission  NZCA 275, Commerce Commission v Harmoney Ltd  NZHC 4211).
- Acting for IAG in relation to a claim against EQC arising from the sequencing of land and building repairs following the Canterbury earthquakes (High Court, settled 2020).
- Acting for the Commerce Commission in proceedings against Viagogo (ticket resale platform) including in relation to jurisdiction to grant interim relief against an offshore party before service ( NZCA 472,  3 NZLR 559).
- Advising the Commerce Commission in respect of determining input methodologies for the regulation of fibre services.
- Acting for Meridian in respect of claimed breaches of undesirable trading situation and high standard of trading conduct provisions in relation to non-zero offer prices while spilling in late 2019.
- Acting in an arbitration over an electricity derivates transaction (settled 2020).
- Acting for Airways Corporation in an arbitration relating to changes to its charging structure following disruptions to air travel (settled 2020).
- Acting for Fonterra in judicial review proceedings over setting of the farmgate milk price (Open Country Dairy v Commerce Commission  NZHC 334).
- Acting for Opua Coastal Preservation Inc in an appeal to the Supreme Court in respect of the legality of an easement over reserve land (Schmuck v Opua Coastal Preservation Inc  NZSC 118,  1 NZLR 750).
- Providing advice as to the liability of social media platforms for hosted content.
- Acting for the Minister of Commerce in judicial review proceedings arising from an investigation into the subsidisation of galvanised steel coil produced in China (New Zealand Steel Ltd v Minister of Commerce and Consumer Affairs  NZHC 2454;  2 NZLR 525).
- Acting for the Commerce Commission in proceedings against Wilson Parking in relation to a car park acquisition (High Court, settled 2019).
- Acting for the Commerce Commission in quality breach proceedings against Vector Limited ( NZHC 540).
- Acting for the Commerce Commission in relation to its decision not to approve the proposed merger between Stuff and NZME (NZME Ltd v Commerce Commission  NZHC 3206; NZME Ltd v Commerce Commission  NZCA 389).
- Acting for Mobil Oil New Zealand in a claim arising from the administration of Solid Energy (Gibson v Mobil Oil New Zealand Ltd  NZHC 41).
- Acting for a NZ transport company in a high value contract pricing arbitration (concluded 2017).
- Acting for Westpac in relation to a complaint over the release of account information to the Police in the absence of a production order, currently before the Human Rights Review Tribunal (Hager v Westpac New Zealand HRRT 010/17).
- Acting for Meridian in judicial review proceedings brought by Trustpower against the Electricity Authority (Trustpower Ltd v Electricity Authority and Meridian Energy Ltd  NZHC 2914,  2 NZLR 253).
- Acting for the Commerce Commission in an appeal bought by Chorus in relation to the price of the unbundled bitstream access service (Chorus Ltd v Commerce Commission  NZHC 690 and  NZCA 440)
- Acting for the Insurance Council of New Zealand in relation to a declaratory judgment brought by EQC in relation to properties suffering from increased flooding vulnerability (Earthquake Commission v Insurance Council of New Zealand Inc  NZHC 3138,  2 NZLR 381)
- Acting for Russel Norman in relation to defamation proceedings brought by Colin Craig (District Court, 2014)
- Acting for the Tuhoronuku Independent Mandate Authority in relation to a challenge to the Crown’s recognition of Tūhoronuku’s mandate to settle claims for Ngāpuhi (WAI 2490: The Ngāpuhi Mandate Inquiry, Waitangi Tribunal, 2014-15)
- Acting for Auckland Airport on its merits review appeal on the input methodologies determined by the Commerce Commission under Part 4 of the Commerce Act (Wellington International Airport Ltd v Commerce Commission  NZHC 3289).
- Acting for Te Rūnanga-ā-iwi-o-Ngāpuhi in relation to the withdrawal of Ngāti Hine under the Maori Fisheries Act 2004 (Maori Land Court and Maori Appellate Court,Te Runanga O Ngati Hine v Te Runanga A Iwi O Ngapuhi (2013) Maori Appellate MB 89 (2013 APPEAL 89)).
- Acting for a landowner in a dispute over frontager rights with the Wellington City Council (Murray v Wellington City Council  NZCA 533,  NZAR 123).
- Acting for Fonterra in relation to an appeal from the decision of the Commerce Commission over the meaning of an “independent processor” under the Raw Milk Regulations (High Court, Court of Appeal and Supreme Court 2012, Fonterra Co-Operative Group Ltd v The Grate Kiwi Cheese Company Ltd  NZSC 15).
- Acting for IBM NZ on an IT dispute involving Vodafone and others (High Court, settled 2012).
- Acting for Westpac, ANZ National Bank and BNZ in a declaratory judgment proceedings under the Unclaimed Money Act (High Court, Court of Appeal and Supreme Court 2011, Westpac Banking Corporation v Commissioner of Inland Revenue  NZSC 36).
- Acting for Westpac in Commerce Act proceedings brought by the Commerce Commission and various retailers over credit card interchange fees (High Court, settled 2009).
- Acting for Auckland Airport in judicial review proceedings brought by Air New Zealand (including appearing as an intervener in the Court of Appeal in litigation between Air New Zealand and Wellington Airport) (Air New Zealand v Wellington International Airport Ltd  NZCA 259,  3 NZLR 713, settled).
- Acting for the vendors of a business in a mis-representation case PAE (New Zealand) Ltd v Brosnahan (High Court and Court of Appeal 2009).
- James acted for Westpac in relation to the local incorporation of Westpac in New Zealand during 2005-06 (including drafting the Westpac New Zealand Bill).
- Acting for Todd Energy in a Commerce Act claim against Transpower and Powerco in relation to the effect of its transmission pricing methodology on distributed generation (Transpower New Zealand Ltd v Todd Energy Ltd  NZCA 302, settled).
- In 2006 James acted for a consortium of the major electricity generators in the preparation of submissions on water allocation rights.
- James acted for Telecom in relation to various regulatory processes and competition matters including the inquiry into unbundling the local loop (2000-2004).
- Between 2001 and 2003 James acted for the Electricity Governance Board industry project team in its successful application to the Commerce Commission for an authorisation for the new industry rulebook.
- James acted for the entities which merged to form Fonterra and provided advice as to the regulatory framework which was implemented in the Dairy Industry Restructuring Act 2001.
- Conducting investigations on behalf of clients including:
- The leaking of a confidential government cabinet paper.
- Potential corrupt practices by officers of a company.
- Assisting with responses to investigations by regulators such as the Commerce Commission, the Financial Markets Authority and the Serious Fraud Office.
- Acting as counsel assisting in inquisitorial processes such as the Commerce Commission's final determination of the prices of the unbundled bitstream access and unbundled copper local loops services.
- Climate Change: What can Lawyers do? (NZLS CLE Conference, 2023).
- Regulation of new technologies: Institutions and processes (New Zealand Law Foundation research paper, 2018).
- Legalwise Seminar, “Smart Contracts”: Automated Self-Executing Contracts(Wellington, 2017).
- Future of Law Summit, Technology as an Improvement of the Profession(Auckland, 2016).
- Legalwise Seminar, Developments in Regulatory Price Setting Mechanisms(Wellington, 2016).
- Institute of IT Professionals conference paper, Competition Law and New Technologies (Tauranga, 2013).
- The State and Monopolies: New Zealand's Experience, (2010) 12 Otago Law Review 227.
- Judicial Review in a Commercial Context,  NZLJ 14.
- Co-author, Equity and Trusts in New Zealand (chapters on Equitable Estoppel, Breach of Confidence and Equitable Tracing).
- Co-author, Restitution in Laws of New Zealand.