Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited [2001] FCA 1343

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission

v ABB Transmission and Distribution Limited

[2001] FCA 1343

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ABB TRANSMISSION AND DISTRIBUTION LIMITED and ORS V 868 of 2000 FINKELSTEIN J MELBOURNE 5 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 868 of 2000

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: ABB TRANSMISSION AND DISTRIBUTION LIMITED

First Respondent

ABB POWER TRANSMISSION PTY LTD (in liquidation)

Second Respondent

WILSON TRANSFORMER COMPANY PTY LTD

Third Respondent

SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD

Fourth Respondent

AW TYREE TRANSFORMERS PTY LTD

Fifth Respondent

ALSTOM AUSTRALIA LTD

Sixth Respondent

DOUGLAS PITT

Seventh Respondent

GRAHAM JONES

Eighth Respondent

RUSSELL ELLEN

Ninth Respondent

ROBERT WILSON

Tenth Respondent

RUSSELL STOCKER

Eleventh Respondent

ASHLEY SMOUT

Twelfth Respondent

WENDY MINNE

Thirteenth Respondent

RAYMOND BOYCE

Fourteenth Respondent

PAUL GRABHAM

Fifteenth Respondent

COLIN JAMES

Sixteenth Respondent

JUDGE: FINKELSTEIN J

DATE OF ORDER: 5 APRIL 2001

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT: 1. The conduct of the sixth respondent, Alstom Australia Ltd, in relation to the making of the First Arrangement between ABB and Alstom that is referred to in paragraph 72 of the statement of agreed facts signed by the applicant and the sixth, fifteenth and sixteenth respondents and filed in the proceedings ("the Alstom statement of agreed facts"): (a) constituted the making of an arrangement or the arriving at of an understanding that contained an exclusionary provision in contravention of s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth); and (b) constituted the making of an arrangement or the arriving at of an understanding, which: (i) contained provisions to which the provisions of s 45A of the act applied; and (ii) accordingly substantially lessened competition for the supply of distribution transformers in Australia in contravention of s 45(2)(a)(ii) of the Act. 2. The conduct of the sixth respondent in relation to the giving effect to the First Arrangement between ABB and Alstom that is referred to in paragraphs 73 to 75 of the Alstom statement of agreed facts: (a) constituted the giving effect to a provision of an arrangement or understanding that contained an exclusionary provision in contravention of s 45(2)(b)(i) of the Trade Practices Act 1974; and (b) constituted the giving effect to an arrangement or understanding which: (i) contained provisions to which the provisions of s 45A of the Act applied; and (ii) accordingly substantially lessened competition for the supply of distribution transformers in Australia in contravention of s 45(2)(b)(ii) of the Act. 3. The conduct of the sixth respondent in relation to the making of the Second Arrangement between ABB and Alstom that is referred to in paragraph 80 of the Alstom statement of agreed facts: (a) constituted the making of an arrangement or the arriving at of an understanding that contained an exclusionary provision in contravention of s 45(2)(a)(i) of the Trade Practices Act 1974; and (b) constituted the making of an arrangement or the arriving at of an understanding, which: (i) contained provisions to which the provisions of s 45A of the Act applied; and (ii) accordingly substantially lessened competition for the supply of distribution transformers in Australia in contravention of s 45(2)(a)(ii) of the Act. 4. The conduct of the sixth respondent in relation to the giving effect to the Second Arrangement between ABB and Alstom that is referred to in paragraphs 81 to 83 of the Alstom statement of agreed facts: (a) constituted the giving effect to a provision of an arrangement or understanding that contained an exclusionary provision in contravention of s 45(2)(b)(i) of the Trade Practices Act 1974; and (b) constituted the giving effect to an arrangement or understanding which: (i) contained provisions to which the provisions of s 45A of the Act applied; and (ii) accordingly substantially lessened competition for the supply of distribution transformers in Australia in contravention of s 45(2)(b)(ii) of the Act. 5. The fifteenth respondent, Paul Grabham, by reason of his conduct referred to in paragraphs 69 to 75 of the Alstom statement of agreed facts: (a) was knowingly concerned in or a party to the contraventions by the sixth respondent of s 45(2)(a)(i) and s 45(2)(a)(ii) of the Trade Practices Act 1974 referred to in paragraph 1 above; and (b) was knowingly concerned in or a party to the contraventions by the sixth respondent of s 45(2)(b)(i) and s 45(2)(b)(ii) of the Act referred to in paragraph 2 above. 6. The sixteenth respondent, Colin James, by reason of his conduct referred to in paragraphs 77 to 83 of the Alstom statement of agreed facts: (a) was knowingly concerned in or a party to the contraventions by the sixth respondent of s 45(2)(a)(i) and s 45(2)(a)(ii) of the Trade Practices Act 1974 referred to in paragraph 3 above; and (b) was knowingly concerned in or a party to the contraventions by the sixth respondent of s 45(2)(b)(i) and s 45(2)(b)(ii) of the Act referred to in paragraph 4 above. THE COURT FINDS THAT: 7. For the purposes of s 83 of the Trade Practices Act 1974, the relevant facts in these proceedings in relation to sixth, fifteenth and sixteenth respondents are the facts set out in the Alstom statement of agreed facts filed in these proceedings. THE COURT ORDERS THAT: 8. The sixth respondent pay to the Commonwealth of Australia a pecuniary penalty pursuant to s 76 of the Trade Practices Act 1974 in the sum of $1,500,000 within thirty days of the making of this order. THE COURT ORDERS BY CONSENT THAT: 9. The sixth respondent be restrained, for a period of 4 years, by its directors, servants and agents or otherwise howsoever, from: (a) making or arriving at; (b) giving effect to; (c) attempting to make or arrive at or give effect to; or (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 giving effect to by any person of: any contract, arrangement or understanding between manufacturers or suppliers of distribution transformers which contains a provision that: (f) has the purpose, or has or is likely to have the effect, of: (i) fixing, controlling or maintaining, or (ii) providing for the fixing, controlling or maintaining, of tender prices submitted by such manufacturers or suppliers; or (g) has the purpose of preventing, restricting or limiting the supply of distribution transformers by such manufacturers or suppliers to electricity utilities or any other purchasers of distribution transformers at particular prices or at all. 10. Each of the fifteenth and sixteenth respondents be restrained, for a period of 4 years, from being in any way, directly or indirectly, knowingly concerned in, or party to the: (a) making or arriving at; (b) giving effect to: any contract, arrangement or understanding between manufacturers or suppliers of distribution transformers which contains a provision that: (c) has the purpose, or has or is likely to have the effect, of: (i) fixing, controlling or maintaining, or (ii) providing for the fixing, controlling or maintaining: of tender prices submitted by such manufacturers or suppliers; or (d) has the purpose of preventing, restricting or limiting the supply of distribution transformers by such manufacturers or suppliers to electricity utilities or any other purchasers of distribution transformers at particular prices or at all. 11. The sixth respondent pay the applicant's costs of and incidental to these proceedings in the agreed amount of $40,000 within thirty days of the date of this order. THE COURT ACCEPTS THE UNDERTAKING OF THE SIXTH RESPONDENT THAT: 12. The sixth respondent will use its best endeavours to ensure that its trade practices compliance program continues to conform to the Australian Standard, AS3806-1198.