FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v
Tyco Australia Pty Ltd ACN 008 399 004
[2001] FCA 22
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
18 JANUARY 2001
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: |
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 124 of the statement of claim, a penalty in respect of all contraventions which occurred after 30 September 1993, of $5,000,000 be imposed upon the third respondent.
2. The penalty of the third respondent is to be paid to the Commonwealth of Australia within thirty days of the date of this order.
THE COURT ORDERS BY CONSENT OF THE APPLICANT AND THE THIRD RESPONDENT THAT:
3. The third respondent be restrained, in Queensland, 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 third respondent is a party, that:
(i) the third 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 third 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 third 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.
4. The third respondent be restrained, in Queensland, 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 third respondent is a party, that
(i) the third 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 third 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 third 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.
5. The third respondent pay the applicant’s costs of and incidental to these proceedings in the agreed amount of $200,000within thirty 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 proceedings as between the applicant and the third respondent, FFE Building Services Limited (“FFE”), arise out of conduct in contravention of Part IV the Trade Practices Act 1974 (Cth) engaged in by the third respondent and by officers of that organisation in the fire sprinkler and fire alarm markets in the South-East Queensland area. I have dealt with the general circumstances out of which the contraventions arise in earlier proceedings between the Commission and other parties involved in the contravening conduct.
2 It is sufficient to say that FFE, by its officers, played a major part in making and implementing the contravening arrangements in both fire protection markets. Throughout most of the relevant period, ie, up until November 1996, FFE was a subsidiary of James Hardie Industries Limited, the second cross-respondent, and thereafter a subsidiary of Chubb Australia Limited, the first cross-claimant. In the fire sprinkler market, though not in the fire alarm market, officers of FFE continued for about six months after the change of ownership to engage in the contravening conduct.
3 FFE throughout the relevant period was a major participant in both markets, holding approximately 15% to 20% of the market in the first, and about 15% of the market in the second of the two markets I have referred to. Senior officers of FFE were involved throughout the period in respect of which the contraventions occurred in organising and in attending meetings. Most of those persons have already been dealt with in earlier proceedings.
4 The resolution of the Commission’s claims against FFE has been complicated, at least for a time, by the change in ownership to which I have referred. However, it is apparent from the joint submissions that arrangements have now been agreed between James Hardie Industries Limited and Chubb Australia Limited in respect of the sharing of the pecuniary penalty and costs orders which it is proposed the Court should make against FFE. On the face of things, without being informed of the exact details of the arrangements, since I am told that James Hardie Industries Limited will be responsible for meeting a substantial part of the penalty and the costs, the proposal for a pecuniary penalty of $5,000,000 to be paid by FFE seems to me to be an appropriate order.
5 I will make, by consent, orders in terms of the draft which is annexure C to exhibit 1 before me today, orders which include the pecuniary penalty of $5,000,000, costs of $200,000 and the various injunctions set out therein.
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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: 18 January 2001
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Counsel for the Applicant: |
Mr K Wilson |
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Solicitor for the Applicant: |
Australian Government Solicitor |
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Counsel for the Third Respondent: |
Mr W Muddle |
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Solicitor for the Third Respondent: |
Hunt & Hunt Lawyers |
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Date of Hearing: |
18 January 2001 |
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Date of Judgment: |
18 January 2001 |
