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

[2001] FCA 22

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

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 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 $200,000 within 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.

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. 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.

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

Counsel for the Applicant:	Mr K Wilson
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Third Respondent:	Mr W Muddle
Solicitor for the Third Respondent:	Hunt & Hunt Lawyers
Date of Hearing:	18 January 2001
Date of Judgment:	18 January 2001