Australian Competition and Consumer Commission v; Tyco Australia Pty Ltd ACN 008 399 004

[2001] FCA 23

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v
Tyco Australia Pty Ltd ACN 008 399 004
[2001] FCA 23

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 239 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

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

JUDGE:	DRUMMOND J
DATE OF ORDER:	18 JANUARY 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.In respect of his ancillary involvement in the contraventions by the third respondent of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) alleged in paragraph 147 of the statement of claim, a penalty in respect of all contraventions of $20,000 be imposed upon the twenty-sixth respondent.

2.The penalty of the twenty-sixth respondent is to be paid to the Commonwealth of Australia as follows:

(a)the sum of $5,000 on or before 18 March 2001;

(b)the further sum of $5,000 on or before 18 June 2001;

(c)the further sum of $5,000 on or before 18 September 2001;

(d)the further sum of $5,000 on or before 18 December 2001;

(e)if any instalment is not paid on or before the due date then the entire balance of the penalty of $20,000 then unpaid becomes immediately due and payable.

THE COURT ORDERS BY CONSENT OF THE APPLICANT AND THE TWENTY-SIXTH RESPONDENT THAT:

3.The twenty-sixth respondent 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.

4.The twenty-sixth respondent pay the applicant’s costs of and incidental to these proceedings in the agreed amount of $10,000 within fourteen days of the date of this order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 239 OF 1999

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

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

JUDGE:	DRUMMOND J
DATE:	18 JANUARY 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Mr Crosby, the twenty-sixth respondent, was employed as Queensland Contracts Manager Alarms by FFE Building Services Limited (“FFE”), the third respondent, from December 1994.  Between about that time and September 1995, he attended various of the meetings in respect of which the contravening conduct was discussed, arranged and implemented in relation to the South-East Queensland fire alarm market.

2. His attendance was at the direction of Mr Lewis, the twenty-fifth respondent, his senior officer, and also at the direction of Mr King, the twenty-fourth respondent, another senior official of FFE, to whom Mr Crosby was also subordinate.  He did not take any part in convening or organising any of these meetings, but attended them on direction of his superiors as a representative of FFE which, as I have already indicated, was one of the largest participants in the relevant market.

3. It is proposed that a pecuniary penalty of $20,000 be paid by Mr Crosby over time, and that certain injunctions be ordered.  I am satisfied that the penalty proposed is appropriate and within the range of proper penalties for the conduct in respect of which Mr Crosby engaged, and I am also satisfied that the other orders proposed in paragraph B to the joint submissions, which I make Exhibit 3 in the proceedings before me today, are proper and appropriate.  There will therefore be orders by consent in terms of attachment B to Exhibit 3.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:

Dated:             18 January 2001

Counsel for the Applicant:	Mr K Wilson
Solicitor for the Applicant:	Australian Government Solicitor
Solicitor for the Twenty-Sixth Respondent:	Thynne & Macartney Solicitors
Date of Hearing:	18 January 2001
Date of Judgment:	18 January 2001