FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v
Tyco Australia Pty Ltd ACN 008 399 004
[2000] FCA 1444
TRADE PRACTICES - penalty and injunctive relief imposed for breach of s 45 Trade Practices Act 1974 (Cth) where breach acknowledged by respondents and joint submissions lodged
Trade Practices Act 1974 (Cth), s 45
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v TYCO AUSTRALIA PTY LTD (formerly Wormald Australia Pty Ltd) T/as Wormald Fire Systems ACN 008 399 004 AND ORS
Q 239 OF 1999
DRUMMOND J
5 OCTOBER 2000
BRISBANE
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IN THE FEDERAL COURT OF AUSTRALIA |
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Q 239 OF 1999 |
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BETWEEN: |
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
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AND: |
TYCO AUSTRALIA PTY LTD (formerly Wormald Australia Pty Ltd) T/as Wormald Fire Systems ACN 008 399 004 First Respondent
GRINNELL ASIA PACIFIC PTY LIMITED T/as O’Donnell Griffin ACN 003 905 093 Second Respondent
FFE BUILDING SERVICES LTD (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services P/L) T/as Fire Fighting Enterprises ACN 000 067 541 Third Respondent
PATRICK FIRE PROTECTION PTY LTD ACN 010 592 999 Fourth Respondent
INDEPENDENT FIRE SPRINKLERS PTY LTD ACN 009 976 854 Fifth Respondent
INDEPENDENT FIRE ALARMS PTY LTD ACN 009 705 720 Sixth Respondent
ALLFIRE SYSTEMS PTY LTD ACN 010 713 149 Seventh Respondent
THE ASSET GROUP (BRISBANE) PTY LTD (formerly Asset Fire and Security Pty Ltd) ACN 061 327 786 Eighth Respondent
ASSOCIATED FIRE SYSTEMS PTY LTD ACN 010 404 770 Ninth Respondent
ENTERPRISE FIRE PROTECTION PTY LTD ACN 010 595 212 Tenth Respondent
ENTERPRISE FIRE PROTECTION ELECTRICS PTY LTD ACN 069 159 744 Eleventh Respondent
FIREVAC PTY LTD ACN 010 607 379 Twelfth Respondent
IMPACT FIRE PROTECTION PTY LTD ACN 006 615 452 Thirteenth Respondent
PREMIER FIRE PROTECTION (QLD) PTY LTD ACN 050 410 636 Fourteenth Respondent
TRIDENT FIRE PROTECTION PTY LTD ACN 010 243 811 Fifteenth Respondent
SENSOR SYSTEMS (AUST) PTY LTD ACN 065 444 368 Sixteenth Respondent
F & H PTY LTD (formerly Matthews Fire Alarm Pty Ltd) ACN 009 659 410 Seventeenth Respondent
BURMESS PTY LTD T/as BEI Services ACN 010 623 677 Eighteenth Respondent
RICHARD McCORMACK Nineteenth Respondent
KENNETH EDWIN WALLER Twentieth Respondent
KEVIN FISHER Twenty-First Respondent
MATTHEW SPROULE Twenty-Second Respondent
TERENCE MICHAEL McDONALD Twenty-Third Respondent
RAYMOND EDWARD KING Twenty-Fourth Respondent
MICHAEL JOHN LEWIS Twenty-Fifth Respondent
DAVID JAMES CROSBY Twenty-Sixth Respondent
TREVOR PATRICK Twenty-Seventh Respondent
DEREK COOPER Twenty-Eighth Respondent
ALEXANDER ROBERT THOMSON Twenty-Ninth Respondent
GORDON EDMUND DAY Thirtieth Respondent
ALLAN GEOFFREY MURRELL Thirty-First Respondent
KERRY JOHN MOULDS Thirty-Second Respondent
KEVYN RAYMOND ALLEN Thirty-Third Respondent
JOHN EDMUND BARNEY Thirty-Fourth Respondent
BRIAN GEOFFREY DAVIES Thirty-Fifth Respondent
DAVID WELLMAND DOUYERE Thirty-Sixth Respondent
DAVID WILLIAM KEMP Thirty-Seventh Respondent
LESLIE JOHN BAILEY Thirty-Eighth Respondent
EDWARD PETER GOLEMBA Thirty-Ninth Respondent
MICHAEL WILD Fortieth Respondent
STEVEN WALTER SPURR Forty-First Respondent
CLINT LAWRENCE PRICKETT Forty-Second Respondent
IAN JAMES TAYLOR Forty-Third Respondent
WILLIAM JOHN LYNCH Forty-Fourth Respondent
BRIAN GRAHAM STARKEY Forty-Fifth Respondent
KENNETH BRIAN THOMSON Forty-Sixth Respondent
EON WILLIAM RADLEY Forty-Seventh Respondent
GREGORY JOHN BOURKE Forty-Eighth Respondent
JOHN FRANKLIN PREECE Forty-Ninth Respondent
ROY ERNEST TESCH Fiftieth Respondent
DENNIS BRETT Fifty-First Respondent
NIGEL STEPHEN REHBOCK Fifty-Second Respondent
KENNETH NORMAN ROSE Fifty-Third Respondent
NOEL ANTHONY MEYER Fifty-Fourth Respondent
WILLIAM FRANCIS SHEEHAN Fifty-Fifth Respondent
ALAN JOHN BLUNDELL Fifty-Sixth Respondent
CHUBB AUSTRALIA LIMITED Fifty-Seventh Respondent
CHUBB AUSTRALIA LIMITED First Cross-Claimant
DIETOOL (WA) PTY LIMITED First Cross-Respondent
JAMES HARDIE INDUSTRIES LIMITED Second Cross-Respondent |
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JUDGE: |
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT NOTES THAT:
1. The thirty-fourth, thirty-fifth, thirty-sixth and thirty-seventh respondents have given, and the applicant has accepted, an undertaking pursuant to s 87B of the Trade Practices Act 1974 (Cth) to participate in trade practices compliance training in a form acceptable to the applicant.
1. In respect of its contraventions of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) and of its ancillary involvement in contraventions of those sections alleged in paragraph 129 of the statement of claim, a penalty in respect of all contraventions which occurred after 30 September 1993 of $245,000 be imposed upon the eighth respondent.
2. In respect of his ancillary involvement in the contraventions by the eighth respondent of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) alleged in paragraph 155 of the statement of claim, a penalty in respect of all contraventions which occurred after 30 September 1993 of $50,000 be imposed upon the thirty-fourth respondent.
3. In respect of his ancillary involvement in the contraventions by the eighth respondent of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) alleged in paragraph 156 of the statement of claim, a penalty in respect of all contraventions which occurred after 30 September 1993 of $50,000 be imposed upon the thirty-fifth respondent.
4. In respect of his ancillary involvement in the contraventions by the eighth respondent of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) alleged in paragraph 157 of the statement of claim, a penalty in respect of all contraventions of $30,000 be imposed upon the thirty-sixth respondent.
5. In respect of his ancillary involvement in the contraventions by the eighth respondent of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) alleged in paragraph 158 of the statement of claim, a penalty in respect of all contraventions of $25,000 be imposed upon the thirty-seventh respondent.
6. The penalty of the eighth respondent, and the penalties of each of the thirty-fourth, thirty-fifth, thirty-sixth and thirty-seventh respondents, are to be paid to the Commonwealth of Australia within sixty days of the date of this order.
THE COURT ORDERS BY CONSENT OF THE APPLICANT AND THE EIGHTH, THIRTY-FOURTH, THIRTY-FIFTH, THIRTY-SIXTH AND THIRTY-SEVENTH RESPONDENTS THAT:
7. The eighth respondent be restrained, in Queensland and the Northern Territory, for a period of three years, whether by its directors, servants, agents, or otherwise howsoever, from making, arriving at or giving effect to any contract or arrangement or understanding (other than an agreement to jointly tender for the provision of the services referred to in subparagraph (a) hereof; an agreement with a related entity; or an agreement in so far as it relates to the licensing or assignment of a trademark, patent, registered design, copyright or EL rights within the meaning of the Circuits Layouts Act 1989 (Cth)) which contains a provision that:
(a) has the purpose or effect or likely effect, whether by itself or together with another provision of any contract, arrangement or understanding to which the eighth respondent is a party, that:
(i) the eighth respondent will not compete with another provider of fire sprinkler system installation services for the provision of those services to a particular person or class of persons; or
(ii) the eighth respondent will allow another provider of fire sprinkler system installation services to win any tender let by a third person for the provision of such services; or
(iii) another provider of fire sprinkler system installation services will allow the eighth respondent to win any tender let by a third person for the provision of such services; or
(b) has the purpose or effect or likely effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of, the prices charged for fire sprinkler system installation services supplied or offered for supply by any of the parties to the contract, arrangement or understanding in competition with one another to other persons.
8. The eighth respondent be restrained, in Queensland and the Northern Territory, for a period of three years, whether by its directors, servants, agents or otherwise howsoever, from making, arriving at or giving effect to any contract or arrangement or understanding (other than an agreement to jointly tender for the provision of the services referred to in subparagraph (a) hereof; an agreement with a related entity; or an agreement in so far as it relates to the licensing or assignment of a trademark, patent, registered design, copyright or EL rights within the meaning of the Circuits Layouts Act 1989 (Cth)) which contains a provision that:
(a) has the purpose or effect or likely effect, whether by itself or together with another provision of any contract, arrangement or understanding to which the eighth respondent is a party, that:
(i) the eighth respondent will not compete with another provider of fire alarm system installation services for the provision of those services to a particular person or class of persons; or
(ii) the eighth respondent will allow another provider of fire alarm system installation services to win any tender let by a third person for the provision of such services; or
(iii) another provider of fire alarm system installation services will allow the eighth respondent to win any tender let by a third person for the provision of such services; or
(b) has the purpose or effect or likely effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of, the prices charged for fire alarm system installation services supplied or offered for supply by any of the parties to the contract, arrangement or understanding in competition with one another to other persons.
9. Each of the thirty-fourth, thirty-fifth, thirty-sixth and thirty-seventh respondents be restrained, in Queensland and the Northern Territory, for a period of three years, from:
(i) being directly or indirectly knowingly concerned in or party to;
(ii) inducing or attempting to induce; or
(iii) aiding, abetting, counselling or procuring;
the making of, or arriving at, or giving effect to, by a corporation providing fire sprinkler system installation services, of any contract or arrangement or understanding (other than an agreement to jointly tender for the provision of the services referred to in subparagraph (a) hereof; an agreement with a related entity; or an agreement in so far as it relates to the licensing or assignment of a trademark, patent, registered design, copyright or EL rights within the meaning of the Circuits Layouts Act 1989 (Cth)) which contains a provision that:
(a) has the purpose or effect or likely effect that:
(i) that corporation will not compete with another provider of fire sprinkler system installation services for the provision of those services to a particular person or class of persons; or
(ii) that corporation will allow another provider of fire sprinkler system installation services to win any tender let by a third person for the provision of such services; or
(iii) another provider of fire sprinkler system installation services will allow that corporation to win any tender let by a third person for the provision of such services; or
(b) has the purpose or effect or likely effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of, the prices charged for fire sprinkler system installation services supplied or offered for supply by any of the parties to the contract, arrangement or understanding in competition with one another to other persons.
10. Each of the thirty-fourth, thirty-fifth, thirty-sixth and thirty-seventh respondents be restrained, in Queensland and the Northern Territory, for a period of three years, from:
(i) being directly or indirectly knowingly concerned in or party to;
(ii) inducing or attempting to induce; or
(iii) aiding, abetting, counselling or procuring;
the making of, or arriving at, or giving effect to, by a corporation providing fire alarm system installation services, of any contract or arrangement or understanding (other than an agreement to jointly tender for the provision of the services referred to in subparagraph (a) hereof; an agreement with a related entity; or an agreement in so far as it relates to the licensing or assignment of a trademark, patent, registered design, copyright or EL rights within the meaning of the Circuits Layouts Act 1989 (Cth)) which contains a provision that:
(a) has the purpose or effect or likely effect that:
(i) that corporation will not compete with another provider of fire alarm system installation services for the provision of those services to a particular person or class of persons; or
(ii) that corporation will allow another provider of fire alarm system installation services to win any tender let by a third person for the provision of such services; or
(iii) another provider of fire alarm system installation services will allow that corporation to win any tender let by a third person for the provision of such services; or
(b) has the purpose or effect or likely effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of, the prices charged for fire alarm system installation services supplied or offered for supply by any of the parties to the contract, arrangement or understanding in competition with one another to other persons.
11. The eighth respondent pay the applicant’s costs of and incidental to these proceedings in the agreed amount of $20,000 within twenty-one days of the date of this Order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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Q 239 OF 1999 |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 The Australian Competition and Consumer Commission has brought proceedings against eighteen companies and thirty-eight persons employed or involved in the business of those companies for contraventions of s 45 the Trade Practices Act 1974 (Cth) in respect of anti-competitive conduct engaged in by the companies in which the thirty-eight persons are said also to have been involved. The proceedings, as between the Commission and the eighth and thirty-fourth to thirty-seventh respondents, ie, persons associated with the eighth respondent, are to be disposed of today.
2 I have dealt with the factual circumstances out of which the proceedings brought by the Commission against all respondents, including the eighth and thirty-fourth to thirty-seventh, arise in the reasons I published on 14 December 1999 when I dealt with certain of the other respondents. The eighth respondent was, between August 1993 and February 2000, an independently owned fire protection installation company. It has recently sold its business. During the relevant period when the contravening conduct took place, the eighth respondent, via its officers who are the other respondents to be dealt with today, the thirty-fourth to thirty-seventh respondents, participated in price fixing and market sharing arrangements with competitors in the Queensland sprinkler market for a period of at least two and a half years and in the Queensland fire alarm market for a period of at least one and a half years.
3 The eighth respondent was a relatively small participant in the first of those markets and a mid-sized participant in the second of those markets. Its participation in the ant-competitive conduct in both resulted in its obtaining a total of fifteen projects in both markets. Mr Barney, the thirty-fourth respondent, appears to have taken a particularly active role in the price fixing arrangements in so far as not only attending numerous of the meetings between the persons involved in the anti-competitive conduct; he took a leading role in reorganising meetings after a breakdown of the arrangements in the fire alarm market.
4 The conduct of both the eighth respondent and its associated respondents thus involved serious contraventions of s 45 the Trade Practices Act. In favour of the respondents, it needs to be noted that all have provided significant co-operation to the Commission in its investigations which have led to the institution of these proceedings. Their co-operation will be of assistance to the Commission in the proceedings yet to be determined, as well as having been of assistance in proceedings to date. Moreover, none of the respondents now to be dealt with has been the subject of previous proceedings under Part IV the Trade Practices Act.
5 I am satisfied that the pecuniary penalties agreed between the parties as those to be imposed if the Court is in agreement are within a proper range of penalties. There will, accordingly, be orders in terms of annexure “C” to exhibit 2, which include pecuniary penalties in relation to the eighth respondent of $245,000, in relation to the thirty-fourth respondent and thirty-fifth respondent of $50,000 each, in relation to the thirty-sixth respondent of $30,000 and in relation to the thirty-seventh respondent of $25,000.
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I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. |
Associate:
Dated: 13 October 2000
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Counsel for the Applicant: |
Mr S Couper QC and Mr KN Wilson |
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Solicitor for the Applicant: |
Australian Government Solicitor |
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Solicitor for the Eighth, Thirty-Fourth, Thirty-Fifth and Thirty-Sixth Respondents: |
H Drakos & Co |
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Date of Hearing: |
5 October 2000 |
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Date of Judgment: |
5 October 2000 |
