Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 157

Australian Competition & Consumer Commission v FFE Building Services Ltd [2003] FCA 157

The Court should not direct pre-trial service of statements of evidence for individual respondents in penalty proceedings at this stage, following established Federal Court authority that compulsion to provide such statements impinges on the privilege against exposure to penalty; consistency of practice in the Court is important. The order will be made in relation to corporate respondents, with the likelihood of a later direction for individual respondents after the applicant's case.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: FFE Building Services Limited (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services Pty Ltd) t/as Fire Fighting Enterprises; Second Respondent: Tyco Australia Pty Ltd (formerly Wormald Australia Pty Ltd) t/as Wormald Fire Systems and t/as Mercury Engineering; Third Respondent: Premier Fire Protection (NSW) Pty Ltd; Fourth Respondent: Metropolitan Fire Systems Pty Ltd; Fifth Respondent: Allen Edward Smith; Sixth Respondent: Colin Simpson; Seventh Respondent: Vito Fodera; Eighth Respondent: James Bell; Ninth Respondent: Allan Carr; Tenth Respondent: Mitchell Grice; Eleventh Respondent: Bill Lawson
Jurisdiction
Australia
Judgment Date
07 March 2003
Procedural Posture
Civil Penalty Proceeding / Pre Trial Directions
Outcome
Application for direction regarding pre-trial service of witness statements against individual respondents refused at this stage; direction made against corporate respondents.
Legal Topics
Privilege Against Self Incrimination, Privilege Against Exposure to Penalty, Pre Trial Procedure, Pecuniary Penalties, Order for Witness Statements
Competition Law Civil Procedure Privilege Against Self Incrimination Privilege Against Exposure to Penalty Pre Trial Procedure Pecuniary Penalties Order for Witness Statements

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Parties

Australian Competition and Consumer Commission

Applicant

FFE Building Services Limited (formerly Chubb Building Services Ltd) (formerly James Hardie Building Services Pty Ltd) t/as Fire Fighting Enterprises

First Respondent

Tyco Australia Pty Ltd (formerly Wormald Australia Pty Ltd) t/as Wormald Fire Systems and t/as Mercury Engineering

Second Respondent

Premier Fire Protection (NSW) Pty Ltd

Third Respondent

Metropolitan Fire Systems Pty Ltd

Fourth Respondent

Allen Edward Smith

Fifth Respondent

Colin Simpson

Sixth Respondent

Vito Fodera

Seventh Respondent

James Bell

Eighth Respondent

Allan Carr

Ninth Respondent

Mitchell Grice

Tenth Respondent

Bill Lawson

Eleventh Respondent

Procedural Posture

Civil Penalty Proceeding / Pre Trial Directions

Legal Issues

  1. 1 Whether the Court should direct pre-trial service of statements of witnesses to be called by natural person respondents in a penalty proceeding under the Trade Practices Act 1974

Ratio Decidendi

The Court should not direct pre-trial service of statements of evidence for individual respondents in penalty proceedings at this stage, following established Federal Court authority that compulsion to provide such statements impinges on the privilege against exposure to penalty; consistency of practice in the Court is important. The order will be made in relation to corporate respondents, with the likelihood of a later direction for individual respondents after the applicant's case.

Court Disposition

Application for direction regarding pre-trial service of witness statements against individual respondents refused at this stage; direction made against corporate respondents.

Orders

  • No direction at this stage for individual respondents to serve statements of evidence pre-trial.
  • Direction made for corporate respondents to serve statements of evidence pre-trial.