Australian Competition & Consumer Commission v Tubemakers of Australia Ltd [2000] FCA 227

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Tubemakers of Australia Ltd

[2000] FCA 227

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 the proposed orders.

Trade Practices Act 1974 (Cth) ss 45(2)(a)(i); 45(2)(a)(ii), 45(2)(b)(ii), 76

NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission (1997) 71 FCR 285 Foll Trade Practices Commission v CSR (1991) ATPR 41-076 Cited Australian Competition & Consumer Commission v NW Frozen Foods Pty Ltd (1996) ATPR 41-515 Cited

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

6 MARCH 2000

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: 6 MARCH 2000

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The third respondent shall pay to the Commonwealth of Australia a pecuniary penalty in the sum of $1,000,000 in respect of : (a) the contraventions of ss 45(2)(a)(i), 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) ("the Act") described in paragraphs 17, 21, 24, 24B, 27, 33, 37, 39, 44 and 47 of the amended statement of claim herein; and (b) the attempted contraventions of s 45(2)(a)(ii) of the Act described in paragraphs 49, 52 and 54 of the amended statement of claim herein. 2. The penalty in the preceding order is to be paid as follows : (a) the sum of $330,000 on or before 1 March 2001; (b) the sum of $330,000 on or before 1 March 2002; (c) the sum of $340,000 on or before 1 March 2003; (d) if any of the above instalments is not paid on or before the due date specified, then the balance of the total penalty of $1,000,000 not then paid shall be immediately due and payable. 3. The third respondent be and is 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 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 third respondent shall pay the applicant's costs of and incidental to these proceedings to be taxed unless agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.