Australian Competition & Consumer Commission v Tubemakers of Australia Ltd [1999] FCA 1787

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Tubemakers of Australia Ltd [1999] FCA 1787 TRADE PRACTICES - Price fixing - consideration of penalties under s 76 of the Trade Practices Act 1974 (Cth) where agreement between the Australian Competition and Consumer Commission and the parties on proposed orders - matters relevant in assessing penalty. Trade Practices Act 1974 (Cth) ss45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i), 45(2)(b)(ii), 76 NW Frozen Foods v Australian Competition and Consumer Commission (1997) 71 FCR 285 FC Foll

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v

TUBEMAKERS OF AUSTRALIA LIMITED, COASTLINE FOUNDRY (QLD)

PROPRIETARY LIMITED, ASSOCIATED WATER EQUIPMENT PROPRIETARY

LIMITED, GEOFF CLEGG ENTERPRISES PROPRIETARY LIMITED, PETER

PITTARD, GEOFFREY COLIN CLEGG AND PATRICK JOHN McAULIFFE

Q202 OF 1999

COOPER J

BRISBANE

12 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q202 OF 1999

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: TUBEMAKERS OF AUSTRALIA LIMITED

First Respondent

COASTLINE FOUNDRY (QLD) PROPRIETARY LIMITED

Second Respondent

ASSOCIATED WATER EQUIPMENT PROPRIETARY LIMITED

Third Respondent

GEOFF CLEGG ENTERPRISES PROPRIETARY LIMITED

Fourth Respondent

PETER PITTARD

Fifth Respondent

GEOFFREY COLIN CLEGG

Sixth Respondent

PATRICK JOHN McAULIFFE

Seventh Respondent

JUDGE: COOPER J

DATE OF ORDER: 12 NOVEMBER 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1(a) The first respondent shall pay to the Commonwealth on or by 3 December 1999 a pecuniary penalty in the sum of $1,200,000 and (b) The second respondent shall pay to the Commonwealth on or by 3 December 1999 a pecuniary penalty in the sum of $550,000 in respect of the contraventions of ss 45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) described in paragraphs 17, 19, 24, 27, 29, 33, 37, 41, 44 and 47 of the amended statement of claim herein. 2. Each of the first and second respondents be and are hereby restrained for a period of three years, whether by its directors, servants or agents or otherwise howsoever, 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 one or more competitors for the supply and delivery of valves and pipe fittings for ductile iron cement lined pipes and plastic pipes to local government authorities, civil contractors, wholesalers or retail purchasers, carrying on business anywhere in Australia which contract, arrangement or understanding contains a provision that : (a) 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 prices offered or charged for the supply of and delivery of valves and pipe fittings for ductile iron cement lined pipes and plastic pipes anywhere in Australia. (b) has the purpose of preventing, restricting or limiting the supply of and delivery of valves and pipe fittings for ductile iron cement lined pipes and plastic pipes to acquirers of valves and pipe fittings for ductile iron cement lined pipes and plastic pipes. 3. The fifth respondent is hereby restrained for a period of three years, from being in any way, directly or indirectly, knowingly concerned in, or a party to (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 between two or more competitors for the supply and delivery of valves and pipe fittings for ductile iron cement lined pipes and plastic pipes to local government authorities, civil contractors, wholesalers or retail purchasers, carrying on business any where in Australia which contract, arrangement or understanding contains a provision that : (a) 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 prices offered or charged for the supply and delivery of valves and pipe fittings for ductile iron cement lined pipes and plastic pipes anywhere in Australia. (b) has the purpose of preventing, restricting or limiting the supply of and delivery of valves and pipe fittings for ductile iron cement lined pipes and plastic pipes to acquirers of valves and pipe fittings for ductile iron cement lined pipes and plastic pipes. 4. The first and second respondents shall pay the applicant's costs of and incidental to these proceedings fixed in the sum of $20,000. 5. The fifth respondent shall pay the applicant's costs of and incidental to these proceedings fixed in the sum of $5,000. 5A. The confidential schedule marked "A" shall be placed in an envelope and sealed and shall not be opened without the prior order of the Court or a Judge. 5B. The confidential schedule marked "B" shall be placed in an envelope and sealed and shall not be opened without the prior order of this Court or a Judge. THE COURT NOTES THAT: 6. The first and second respondent undertake to offer to refund such amounts to or to seek other directions in respect of payment thereof from the purchasers of valves and pipe fittings for ductile iron cement lined pipes and plastic pipes in the affected period being the parties nominated in the confidential schedule marked "A" attached in accordance with the methodology in the schedule marked "B" which will be made available to those parties at their request. 7. The first and second respondents have improved their national compliance program which is designed to promote their and their directors', officers' and other employees' compliance with the provisions of the Trade Practices Act 1974. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.