Australian Competition & Consumer Commission v Tyco Australia Pty Ltd

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

AND: TYCO AUSTRALIA PTY LTD (formerly Wormald Australia Pty Ltd) T/as Wormald Fire Systems ACN 008 399 004

GRINNELL ASIA PACIFIC PTY LIMITED T/as O'Donnell Griffin ACN 003 905 093

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

THE ASSET GROUP (BRISBANE) PTY LTD (formerly Asset Fire and Security Pty Ltd) ACN 061 327 786

ENTERPRISE FIRE PROTECTION ELECTRONICS PTY LTD ACN 069 159 744

F & H PTY LTD (formerly Matthews Fire Alarm Pty Ltd)

In respect of its contraventions of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) and of its ancillary involvement in contraventions of those sections, alleged in paragraph 122 of the statement of claim, a penalty in respect of all contraventions which occurred after 30 September 1993 of $1,400,000 be imposed upon the first respondent.

In respect of its contraventions of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) and of its ancillary involvement in contraventions of those sections, alleged in paragraph 123 of the statement of claim, a penalty in respect of all contraventions which occurred after 30 September 1993 of $3,300,000 be imposed upon the second respondent.

In respect of his ancillary involvement in the contraventions by the second respondent of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) alleged in paragraph 140 of the statement of claim, a penalty in respect of all contraventions which occurred after 30 September 1993 of $50,000 be imposed upon the nineteenth respondent.

In respect of his ancillary involvement in the contraventions by the second respondent of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) alleged in paragraph 141 of the statement of claim, a penalty in respect of all contraventions which occurred after 30 September 1993 of $50,000 be imposed upon the twentieth respondent.

In respect of his ancillary involvement in the contraventions by the first and second respondents of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) alleged in paragraph 142 of the statement of claim, a penalty in respect of all contraventions which occurred after 30 September 1993 of $100,000 be imposed upon the twenty first respondent.

In respect of his ancillary involvement in the contraventions by the first respondent of ss 45(2)(a)(ii) and 45(2)(b)(ii) of the Trade Practices Act 1974 (Cth) alleged in paragraph 143 of the statement of claim, a penalty in respect of all contraventions which occurred after 30 September 1993 of $100,000 be imposed upon the twenty second respondent.

All penalties imposed upon respondents under the preceding orders are to be paid to the Commonwealth of Australia within twenty eight days of the making of this order.

THE COURT ORDERS BY CONSENT OF THE APPLICANT AND THE FIRST, SECOND, NINETEENTH, TWENTIETH, TWENTY FIRST AND TWENTY SECOND RESPONDENTS THAT:

The second respondent be restrained, in Queensland and the Northern Territory, for a period of three years, whether by its directors, servants, agents, or otherwise howsoever, from making, arriving at or giving effect to 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 the first respondent or another 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, whether by itself or together with another provision of any contract, arrangement or understanding to which the second respondent is a party, that:

(i) the second respondent will not compete with another provider of fire sprinkler system installation services for the provision of those services to a particular person or class of persons; or

(ii) the second respondent will allow another provider of fire sprinkler system installation services to win any tender let by a third person for the provision of such services; or

(iii) another provider of fire sprinkler system installation services will allow the second respondent 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 sprinkler 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.

The first respondent be restrained, in Queensland and the Northern Territory, for a period of three years, whether by its directors, servants, agents or otherwise howsoever, from making, arriving at or giving effect to 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 the second respondent or another 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, whether by itself or together with another provision of any contract, arrangement or understanding to which the first respondent is a party, that:

(i) the first respondent 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) the first respondent 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 the first respondent 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.

The second respondent be restrained, in Queensland and the Northern Territory, for a period of three years, whether by its directors, servants, agents or otherwise howsoever, from making, arriving at or giving effect to 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 the first respondent or another 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, whether by itself or together with another provision of any contract, arrangement or understanding to which the second respondent is a party, that:

(i) the second respondent 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) the second respondent 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 the second respondent 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.

Each of the nineteenth and twenty first respondents 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;

the making of, or arriving at, or giving effect to, by a corporation providing fire sprinkler 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 Layout 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 sprinkler 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 sprinkler system installation services to win any tender let by a third person for the provision of such services; or

(iii) another provider of fire sprinkler 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 sprinkler 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.

Each of the twentieth, twenty first and twenty second respondents 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;

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 Layout 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.

The first respondent pay the applicant's costs of and incidental to these proceedings in the agreed amount of $25,000 within twenty eight days of the date of this order.

The second respondent pay the applicant's costs of and incidental to these proceedings in the agreed amount of $50,000 within twenty eight days of the date of this order.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

AND: TYCO AUSTRALIA PTY LTD (Formerly Wormald Australia Pty Ltd) T/as Wormald Fire Systems ACN 008 399 004

GRINNELL ASIA PACIFIC PTY LIMITED T/as O'Donnell Griffin ACN 003 905 093

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

THE ASSET GROUP (BRISBANE) PTY LTD (formerly Asset Fire and Security Pty Ltd) ACN 061 327 786

ENTERPRISE FIRE PROTECTION ELECTRONICS PTY LTD ACN 069 159 744

F & H PTY LTD (formerly Matthews Fire Alarm Pty Ltd)

1 The Australian Competition and Consumer Commission has brought proceedings against eighteen companies and thirty eight persons employed or involved in the business of those companies for contraventions of s 45 the Trade Practices Act 1974 (Cth) in respect of anti-competitive conduct engaged in by the companies in which the thirty eight persons are said also to have been involved. The proceedings as between the Commission and the first, second, nineteenth, twentieth, twenty first and twenty second respondents are to be disposed of today. 2 The conduct in question took place in two product markets. Firstly, the Queensland and Northern New South Wales market for the supply of fire sprinkler installations and secondly, the market in the Brisbane, Sunshine Coast and Toowoomba areas for the supply of fire alarms. Legislation in Queensland requires both fire sprinklers and fire alarms to be included in certain classes of building. The eighteen companies against whom the Commission has brought proceedings, including the first and second respondents, comprise all the Brisbane based sprinkler and alarm supply companies, save for a number of small businesses that operated for limited periods only, during what are the relevant periods for present purposes in relation to the two markets. 3 Orders are sought against the six respondents with whom I am now dealing in respect of their conduct in the period October 1993 to May 1997 in what I will call the sprinkler installation market and in respect of the period June 1992 to December 1995 in what I will call the fire alarm installation market. In the sprinkler installation market, the conduct engaged in by the six respondents now in question is set out in pars 14 to 18 of the joint submissions of the Commission and these six respondents (exhibit 1). It consists essentially of the attendance by the nineteenth respondent on behalf of the second respondent at meetings involving representatives of eleven other corporate respondents. At these meetings price fixing arrangements, collusive tendering arrangements and the like were agreed upon, these arrangements were then implemented. 4 The conduct in relation to the fire alarm installation market, said to involve the six respondents with whom I am now dealing in contravention of the Trade Practices Act, is set out in more particularity in pars 60 to 65 of the joint submissions. It essentially involves the same kind of arrangements, also interrupted from time to time, as those entered into with respect to the sprinkler installation market, albeit between representatives of a slightly different group of the corporate respondents. 5 The conduct in contravention of s 45 in both the sprinkler installation and fire alarm installation markets did not take place on a continuous basis in either market throughout the two periods that I have referred to. There were interruptions to the agreed arrangements being implemented because the anti-competitive arrangements from time to time broke down. But they were restored and put back in place fairly promptly. 6 The material indicates that at least 145 projects were affected by these anti-competitive arrangements in the fire sprinkler installation market and at least 158 projects were affected by the anti-competitive arrangements made in the fire alarm installation market. Of course, the first and second respondents did not procure the contracts for the installation of the relevant equipment in all of those projects, but they were successful, as a result of the anti-competitive arrangements, in procuring the contracts for the installations in a significant number of those projects. I infer that but for these arrangements these two respondents would not have secured as many contracts as they did. 7 The provisions of s 45 the Trade Practices Act which were contravened by the conduct of the six respondents with whom I am now dealing are set out in more detail in pars 111 to 116 of the joint submissions. It can be said that the arrangements in which these respondents were involved were highly organised and deliberate. They involved frequent, regular meetings of a large number of former competitors over several years. The arrangements had a high degree of complexity in that rules were formulated for allocations of contracts and for what is called cover pricing to mask the collusive tendering arrangements in place. Detailed records were kept. 8 There is, in par 144 of the joint submissions, reference to pressures in the form of industrial practices said to be imposed by the union involved in the fire service industry which put financial pressures on the respondents' companies, including the first and second respondents, which perhaps conduced to their entering into the anti-competitive arrangements. 9 While the Commission has made no attempt to give any estimate of the order of magnitude of the losses imposed by these anti-competitive arrangements on consumers of the equipment and services here in question, it can readily be accepted that substantial loss has resulted to such consumers. 10 The first and second respondents, Tyco Australia Pty Ltd, which trades as Wormald Fire Systems, and Grinnell Asia Pacific Pty Ltd, which trades as O'Donnell Griffin, are both subsidiaries of Tyco International Pty Ltd. Tyco International Pty Ltd is a major international organisation involved in the fire services area with an annual turnover of the order of three-quarters of a billion dollars internationally. 11 So far as the first and second respondents are concerned, they held between them something of the order of 40% of the alarm market, while the second respondent held approximately 20% - 25% of the sprinkler market, the first respondent not being involved in the sprinkler market. 12 The contraventions by the first and second respondents in which the other four respondents were involved can be accepted as being very serious. So far as the nineteenth to twenty second respondents are concerned, Mr Fisher was the Manager of Tyco's Queensland and Northern Territory operations. He is the most senior official of the Tyco organisation involved in the contraventions. He reports to the National Managing Director. 13 The other three persons against whom the Commission is now proceeding were subordinate managers, who reported to Mr Fisher. It is apparent that each of those three subordinates, Mr McCormack, Mr Sproule and Mr Waller, were more actively involved in the contraventions, in so far as it was they who took part in agreeing and implementing the arrangements. But it is also apparent that Mr Fisher, who held a very senior position in Tyco's Australian organisation, learned at quite an early time of what his subordinates were engaged in, well appreciated it was wrong but failed to intervene to put a stop to the conduct, preferring to remain as ignorant as possible of what his subordinates were doing. 14 Mr Fisher, because of his position and state of knowledge of what was going on, although it did not extend to knowledge of the details of the activities of his subordinates should be visited with a very substantial penalty, more than that which is appropriate for Mr McCormack and Mr Waller. 15 Mr Sproule is in much the same position as Mr McCormack and Mr Waller save for one significant difference. When the Commission issued notices under s 155 the Trade Practices Act in May 1997 to the first and second respondents, Mr Sproule's response was to arrange for the destruction of a considerable body of relevant documentation, something which hindered the Commission's investigation in a number of respects. 16 Subject only to Mr Sproule's conduct in that regard, however, all six respondents have, from a very early stage of the Commission's investigations, provided a very high level of co-operation to the Commission, not only in disclosing details of their own involvements in the anti-competitive conduct, but providing important and useful information to the Commission about the activities of the other organisations involved with them in that same conduct. That is an important consideration to take into account in mitigation of penalty. 17 I accept that deterrence, that is the need to deter the particular respondents and also, and very importantly, the need to indicate to like-minded persons and organisations the penalties that they face if they give way to temptation and engage in similar conduct, is the major consideration in fixing the penalties for the contraventions of the Trade Practices Act. It is unnecessary for me to resolve the question whether punishment is also an appropriate element to have regard to in fixing pecuniary penalties. 18 In my view, penalties can be imposed, generally in accordance with what is proposed by the parties, on the basis that they are appropriate to reflect the important need to deter, as I say not just the present respondents, but like-minded organisations and persons. I have no difficulty in accepting, subject to the qualification already foreshadowed in relation to Mr McCormack and Mr Fisher, that the penalties proposed by the parties are within the appropriate range and as such penalties which the Court should order. 19 I am prepared to make an order in terms of par 1 against the first respondent, Tyco Australia Pty Ltd, imposing a penalty in respect of all contraventions which occurred after 30 September 1993, of $1,400,000. In relation to the second respondent, Grinnell Asia Pacific Pty Ltd, I am prepared to impose a penalty in respect of all contraventions that occurred after the same date in the amount proposed, viz, $3,300,000. 20 So far as the nineteenth respondent is concerned, Mr McCormack, I do not consider that his conduct, for the reasons that I have outlined, is such as to justify imposing on him a penalty at a higher level than that proposed for the other three natural persons who are respondents. I will make an order imposing on the nineteenth respondent, Mr McCormack, a penalty, in respect of all contraventions which occurred after 30 September 1993, of $50,000. 21 In relation to the twentieth respondent, Mr Waller, there will be a penalty in the amount proposed in respect of all contraventions occurring after that date of $50,000. In relation to the twenty first respondent, Mr Fisher, there will be a penalty in respect of all contraventions occurring after that same date of $100,000. And in relation to the twenty second respondent, Mr Sproule, there will be a penalty in the amount proposed in respect of contraventions occurring after that date of $100,000. 22 The Court will therefore make orders in terms of par 1 to 7 of the minutes of orders provided, as amended, which I will make exhibit 2. 23 It is also proposed in the minutes of orders that consent injunctions be issued against all the six respondents in the terms set out in detail in the draft, which I have considered. I am prepared to make injunctive orders by consent in terms of pars 8 to 12 of exhibit 2. There is also agreement by the first and second respondents to pay the Commission's costs fixed, in the case of the first respondent, in the amount of $25,000, and, in the case of the second respondent, in the amount of $50,000. 24 There will therefore be orders by consent in terms of pars 13 and 14 of exhibit 2. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Counsel for the Applicant: Mr S Couper QC and Mr K Wilson

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the First, Second, Nineteenth, Twentieth, Twenty First and Twenty Second Respondents: Mr GH Brandis

Solicitor for the First, Second, Nineteenth, Twentieth, Twenty First and Twenty Second Respondents: Phillips Fox

Date of Hearing: 14 December 1999

Date of Judgment: 14 December 1999