Trade Practices Commission v CC (NSW) Pty Ltd [1995] FCA 375

CATCHWORDS

TRADE PRACTICES - restrictive trade practices - entering into an arrangement or understanding substantially lessening competition - pecuniary penalty to be imposed on individual - determination of appropriate amount. TRADE PRACTICES COMMISSION v CC (NEW SOUTH WALES) PTY LIMITED & ORS (No 3) No NG 574 OF 1994 LINDGREN J SYDNEY 5 MAY 1995

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 574 of 1994 GENERAL DIVISION ) BETWEEN: TRADE PRACTICES COMMISSION Applicant AND: CC (NEW SOUTH WALES) PTY LIMITED formerly known as CONCRETE CONSTRUCTIONS (NSW) PTY LIMITED First Respondent PETER WOOLLARD Second Respondent HOLLAND STOLTE PTY LIMITED Third Respondent GRAHAM RONALD DUFF Fourth Respondent MULTIPLEX CONSTRUCTIONS PTY LIMITED Fifth Respondent GEOFFREY THOMAS PALMER Sixth Respondent LEIGHTON CONTRACTORS PTY LIMITED Seventh Respondent LEONARD DIXON Eighth Respondent THE AUSTRALIAN FEDERATION OF CONSTRUCTION CONTRACTORS Ninth Respondent RUSSELL NORMAN RICHMOND Tenth Respondent

CORAM: LINDGREN J PLACE: SYDNEY DATE: 5 MAY 1995 MINUTE OF ORDERS THE COURT:

1. DECLARES that by engaging in the conduct referred to in paragraphs 15 to 19 and 21 of the Amended Statement of Claim, the fourth respondent, Graham Ronald Duff was directly or indirectly knowingly concerned in, and party to the first, third, fifth and seventh respondents ("the Tenderers") and the tenth respondent ("the AFCC") making or arriving at the arrangement which is referred to in paragraph 21 of the Amended Statement of Claim in contravention of s 45 (2) (a) (ii) of the Trade Practices Act 1974. 2. ORDERS that the fourth respondent, Graham Ronald Duff, pay to the Commonwealth of Australia a pecuniary penalty of $25,000 in respect of that contravention of s 45 (2) (a) (ii) referred to in paragraph 1 hereof. 3. DECLARES that by engaging in the conduct referred to in paragraphs 15 to 19 and 21 to 24 of the Amended Statement of Claim, the fourth respondent, Graham Ronald Duff was directly or indirectly knowingly concerned in, and party to the Tenderers and the AFCC making or arriving at the arrangement which is referred to in paragraph 24 of the Amended Statement of Claim in contravention of s 45 (2) (a) (ii) of the Trade Practices Act 1974. 4. ORDERS that the fourth respondent, Graham Ronald Duff, pay to the Commonwealth of Australia a pecuniary penalty of $25,000 in respect of that contravention of s 45 (2) (a) (ii) referred to in paragraph 3 hereof. 5. ORDERS that the fourth respondent, Graham Ronald Duff, be restrained until 5 May 2000, whether by his servants, agents or otherwise howsoever, from: (a) making or arriving at; (b) giving effect to; (c) attempting to make or arrive at; (d) inducing or attempting to induce, any person to make or arrive at, or give effect to; or (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the making or arriving at, or the giving effect to, by any person, any contract, arrangement or understanding with any other person which contains a provision to the effect that: (i) he will agree to pay to such other person which is unsuccessful an unsuccessful tenderer's fee or a fee payable upon the obtaining by it of any contract; or (ii) he will agree to pay to any industry association any special fee for that project which fee is payable upon or by reason of its having obtained any contract; and which; (iii)has the purpose, or has or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of tender prices submitted in Australia by building or construction contractors; (iv) has the purpose of preventing, restricting or limiting the supply of building or construction services by building or construction contractors in Australia to particular persons or classes of persons either absolutely or in particular circumstances or on particular conditions; or (v) has the purpose, or has or is likely to have the effect, of substantially lessening competition. 6. DECLARES that by engaging in the conduct referred to in paragraphs 15-19 and 21-24 of the Amended Statement of Claim the fourth respondent, Graham Ronald Duff was directly or indirectly concerned in and party to conduct in contravention of ss 52, 53 (aa), 53 (e) and/or 55A of the Trade Practices Act 1974. 7. NOTES that agreement of the applicant and the fourth respondent that there be no order as to costs. 8. ORDERS that the fourth respondent, Graham Ronald Duff, pay the penalties referred to in paragraphs 2 and 4 within 60 days of the date of this order. 9. NOTES the undertaking given by the fourth respondent by his counsel to make himself available at the reasonable request of the Trade Practices Commission and to make an affidavit for the use of the Trade Practices Commission. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.