ACCC v SIP Australia Pty Ltd [1999] FCA 858

FEDERAL COURT OF AUSTRALIA

ACCC v SIP Australia Pty Ltd [1999] FCA 858 TRADE PRACTICES – contravention of Part IV Trade Practices Act 1974 (Cth) – application for final orders by consent - injunctions and pecuniary penalties – power of Court to make orders – factors to be considered. Trade Practices Act 1974 (Cth): Pt IV Trade Practices Commission v TNT Australia Pty Limited (1995) ATPR 41‑375 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 161 ALR 79 Trade Practices Commission v CSR Ltd (1991) ATPR 41‑076 AUSTRALIAN COMPETITION & CONSUMER COMMISSION v SIP AUSTRALIA PTY LIMITED & ORS V 189 of 1999 GOLDBERG J 25 JUNE 1999 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 189 of 1999

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: SIP AUSTRALIA PTY LIMITED

(ACN 003 458 884)

First Respondent

FILIPPO IPPASO

Second Respondent

JOHN EDWIN GATES

Third Respondent

BAKER BROS (AUST) PTY LTD

(ACN 006 977 886)

Fourth Respondent

ANDREW CLIVE BAKER

Fifth Respondent

GUY EDWIN BAKER

Sixth Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 25 JUNE 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The fourth respondent ("Baker Bros"), whether by itself, its servants or agents, is restrained for a period of three years from: (a) making or arriving at; (b) giving effect to; or (c) attempting to make, arrive at or give effect to: any contract, arrangement or understanding with any competitor of Baker Bros in the supply of compressors, including ABAC compressors, anywhere in Australia, which contract, arrangement or understanding contains a provision that: (i) 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, the price of, or a discount in relation to, compressors supplied or to be supplied anywhere in Australia; (ii) has the purpose of preventing, restricting or limiting the supply of compressors to particular persons or classes of persons anywhere in Australia; or (iii) has the purpose of preventing, restricting or limiting the supply or distribution of compressors, in particular circumstances or on particular conditions, anywhere in Australia. 2. The fifth respondent ("Andrew Baker") whether by himself, his servants or agents, is restrained for a period of three years from: (a) making or arriving at, or being knowingly concerned in, or party to, the making or arriving at of; (b) giving effect to, or being knowingly concerned in, or party to, the giving effect to of; or (c) attempting to make, arrive at or give effect to, or being knowingly concerned in, or party to, the attempting to make, arrive at or give effect to of: any contract, arrangement or understanding with any competitor of Baker Bros, or any entity with which Andrew Baker is associated, in the supply of compressors, including ABAC compressors, anywhere in Australia, which contract, arrangement or understanding contains a provision that: (i) 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, the price of, or a discount in relation to, compressors supplied or to be supplied anywhere in Australia; (ii) has the purpose of preventing, restricting or limiting the supply of compressors to particular persons or classes of persons anywhere in Australia; or (iii) has the purpose of preventing, restricting or limiting the supply or distribution of compressors, in particular circumstances or on particular conditions, anywhere in Australia. 3. The sixth respondent ("Guy Baker") by himself, his servants or agents, is restrained for a period of three years from: (a) making or arriving at, or being knowingly concerned in, or party to, the making or arriving at of; (b) giving effect to, or being knowingly concerned in, or party to, the giving effect to of; or (c) attempting to make, arrive at or give effect to, or being knowingly concerned in, or party to, the attempting to make, arrive at or give effect to of: any contract, arrangement or understanding with any competitor of Baker Bros, or any entity with which Guy Baker is associated, in the supply of compressors, including ABAC compressors, anywhere in Australia, which contract, arrangement or understanding contains a provision that: (i) 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, the price of, or a discount in relation to, compressors supplied or to be supplied anywhere in Australia; (ii) has the purpose of preventing, restricting or limiting the supply of compressors to particular persons or classes of persons anywhere in Australia; or (iii) has the purpose of preventing, restricting or limiting the supply or distribution of compressors, in particular circumstances or on particular conditions, anywhere in Australia. 4. Baker Bros pay a pecuniary penalty pursuant to s 76(1) of the Act in the amount of $50,000. 5. Andrew Baker pay a pecuniary penalty pursuant to s 76(1) of the Act in the amount of $5,000. 6. Guy Baker pay a pecuniary penalty pursuant to s 76(1) of the Act in the amount of $5,000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules