FEDERAL COURT OF AUSTRALIA Australian Competition & Consumer Commission v Tyco Australia Pty Ltd ACN 008 399 004 [2001] FCA 23 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 his ancillary involvement in the contraventions by the third respondent of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) alleged in paragraph 147 of the statement of claim, a penalty in respect of all contraventions of $20,000 be imposed upon the twenty-sixth respondent. 2. The penalty of the twenty-sixth respondent is to be paid to the Commonwealth of Australia as follows: (a) the sum of $5,000 on or before 18 March 2001; (b) the further sum of $5,000 on or before 18 June 2001; (c) the further sum of $5,000 on or before 18 September 2001; (d) the further sum of $5,000 on or before 18 December 2001; (e) if any instalment is not paid on or before the due date then the entire balance of the penalty of $20,000 then unpaid becomes immediately due and payable. THE COURT ORDERS BY CONSENT OF THE APPLICANT AND THE TWENTY-SIXTH RESPONDENT THAT: 3. The twenty-sixth respondent be restrained, in Queensland and the Northern Territory, for a period of three years, from: (i) being directly or indirectly knowingly concerned in or party to; (ii) inducing or attempting to induce; or (iii) aiding, abetting, counselling or procuring; the making of, or arriving at, or giving effect to, by a corporation providing fire alarm system installation services, of 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 that: (i) that corporation 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) that corporation 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 that corporation 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. 4. The twenty-sixth respondent pay the applicant's costs of and incidental to these proceedings in the agreed amount of $10,000within fourteen 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 Mr Crosby, the twenty-sixth respondent, was employed as Queensland Contracts Manager Alarms by FFE Building Services Limited ("FFE"), the third respondent, from December 1994. Between about that time and September 1995, he attended various of the meetings in respect of which the contravening conduct was discussed, arranged and implemented in relation to the South-East Queensland fire alarm market. 2 His attendance was at the direction of Mr Lewis, the twenty-fifth respondent, his senior officer, and also at the direction of Mr King, the twenty-fourth respondent, another senior official of FFE, to whom Mr Crosby was also subordinate. He did not take any part in convening or organising any of these meetings, but attended them on direction of his superiors as a representative of FFE which, as I have already indicated, was one of the largest participants in the relevant market. 3 It is proposed that a pecuniary penalty of $20,000 be paid by Mr Crosby over time, and that certain injunctions be ordered. I am satisfied that the penalty proposed is appropriate and within the range of proper penalties for the conduct in respect of which Mr Crosby engaged, and I am also satisfied that the other orders proposed in paragraph B to the joint submissions, which I make Exhibit 3 in the proceedings before me today, are proper and appropriate. There will therefore be orders by consent in terms of attachment B to Exhibit 3. I certify that the preceding three (3) 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 Solicitor for the Twenty-Sixth Respondent: Thynne & Macartney Solicitors Date of Hearing: 18 January 2001 Date of Judgment: 18 January 2001