Australian Competition and Consumer Commission v Olex Australia Pty Ltd - [2017] FCA 222

FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222

File number: VID 725 of 2014

Judge: BEACH J

Date of judgment: 9 March 2017

Catchwords:
COMPETITION – controlling supply – market sharing – price fixing – whether there was an arrangement or understanding which contained a cartel provision – whether parties reached the necessary commitment that gave rise to an arrangement or understanding – whether there was a proscribed purpose to control supply, allocate the market and/or fix prices – whether there was an exclusionary provision for the purposes of s 4D of the Competition and Consumer Act 2010 (Cth) – whether the respondents were “in competition with each other” – consideration of no case submission – circumstantial evidence – exclusive dealing “anti-overlap” defence – collective acquisition defence – no contravention of the prohibition on cartel conduct – application dismissed

COMPETITION – bid rigging – whether there was an arrangement or understanding which contained a bid rigging provision – whether there was a change in the pleaded case in relation to the characterisation of the bidding provision – whether the relevant purpose is in relation to a successful “bid” or successful “party” – resale price maintenance “anti-overlap” defence – no contravention of the prohibition on cartel conduct – application dismissed

Legislation:
Competition and Consumer Act 2010 (Cth) ss 4, 4C, 4D, 4F, 44ZZRB, 44ZZRD, 44ZZRJ, 44ZZRK, 44ZZRR, 44ZZRS, 44ZZRV, 45, 47, 96

Evidence Act 1995 (Cth) s 140(2)

Cases cited:
Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452

ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460

Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344; [2010] FCA 17

Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) (1999) 92 FCR 375

Australian Competition and Consumer Commission v Flight Centre Travel Group Pty Ltd (2016) 339 ALR 242; [2016] HCA 49

Australian Competition and Consumer Commission v IMB Group Pty Ltd (in liq) [2002] FCA 402

Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) 141 FCR 183

Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321

Australian Competition and Consumer Commission v TF Woollam & Son Pty Ltd (2011) 196 FCR 212

BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268

Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd (1986) 162 CLR 395

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

Jones v Dunkel (1959) 101 CLR 298

Jones v Great Western Railway Co (1931) 144 LT 194

News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410

News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563

Norcast S.ár.L v Bradken Ltd (No 2) (2013) 219 FCR 14

Paul Dainty Corporation Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495

R v Associated Northern Collieries (1911) 14 CLR 387

Re Queensland Co-operative Milling Association Ltd (1976) 8 ALR 481

Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

Seven Network Limited v News Limited (2009) 182 FCR 160

Siegwerk Australia Pty Ltd (In liq) v Nuplex Industries (Aust) Pty Ltd (2016) 334 ALR 443; [2016] FCA 158

South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000] FCA 1541

Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286

Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd (No 2) (1980) 44 FLR 149

Trade Practices Commission v Email Ltd (1980) 43 FLR 383

Trade Practices Commission v Penfolds Wines Pty Ltd (1991) 104 ALR 601

Dates of hearing: 24, 25, 26, 27, 30 November 2015, 1, 2, 3, 4, 7, 9, 10, 11 December 2015, 11, 12 February 2016

Date of last submissions: 4 March 2016

Registry: Victoria

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Economic Regulator, Competition and Access

Category: Catchwords

Number of paragraphs: 800

Counsel for the Applicant: Mr P W Collinson QC with Mr A J McClelland QC, Mr A D Barraclough and Ms C E M Exell

Solicitor for the Applicant: Webb Henderson

Counsel for the First and Second Respondents: Mr M H O’Bryan QC with Mr N P De Young

Solicitor for the First and Second Respondents: Herbert Smith Freehills

Counsel for the Third and Fourth Respondents: Mr A J L Bannon SC with Mr J B Spinak

Solicitor for the Third and Fourth Respondents: Johnson Winter & Slattery

Counsel for the Fifth and Sixth Respondents: Mr C A Moore SC with Dr J A Watson

Solicitor for the Fifth and Sixth Respondents: Herbert Smith Freehills

Counsel for the Seventh Respondent: Mr C M Archibald

Solicitor for the Seventh Respondent: Horton Rhodes

Counsel for the Eighth Respondent: Mr N J O’Bryan SC with Mr A M Bell

Solicitor for the Eighth Respondent: Maddocks

Counsel for the Ninth Respondent: Mr M I Borsky

Solicitor for the Ninth Respondent: Corrs Chambers Westgarth

Counsel for the Tenth and Eleventh Respondents: Mr M S Goldblatt

Solicitor for the Tenth and Eleventh Respondents: Rodgers Barnes & Green

Counsel for the Twelfth Respondent: The Twelfth Respondent did not appear

ORDERS

VID 725 of 2014

BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND:
OLEX AUSTRALIA PTY LTD (ACN 087 542 863)

First Respondent

TONY STEWART DUNSTAN

Second Respondent

PRYSMIAN POWER CABLES & SYSTEMS AUSTRALIA PTY LTD (ACN 096 594 080) (and others named in the Schedule)

Third Respondent

JUDGE:

BEACH J

DATE OF ORDER:

9 MARCH 2017

THE COURT ORDERS THAT:
1.The applicant’s originating application be dismissed.
2.The applicant pay the respondents’ costs of and incidental to this proceeding including all reserved costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
BEACH J:

Olex Australia Pty Ltd (Olex), the first respondent, and Prysmian Power Cables & Systems Australia Pty Ltd (Prysmian), the third respondent, are manufacturers of electrical cable who supply electrical cable to wholesalers that re-supply electrical cable. Olex and Prysmian also supply directly to contractors that install electrical cable and end-users that acquire cable for their own use. As at the date of trial, Prysmian and Olex were the largest domestic manufacturers of electrical cable.
Rexel Electrical Supplies Pty Ltd and Australian Regional Wholesalers Pty Ltd, the fifth and sixth respondents (collectively, Rexel) with a common parent (Rexel Holdings Australia Pty Ltd), Lawrence & Hanson Group Pty Ltd (L&H), the eighth respondent, and Metal Manufactures Ltd trading as MM Electrical Merchandising (MMEM) were at the time of trial large Australian wholesalers of electrical cable (the Wholesalers); MMEM is not a party to the present proceeding. The Wholesalers acquired electrical cable from Olex, Prysmian and other suppliers, and on-sold that cable to contractors and end-users. Gemcell Pty Ltd (Gemcell) is a company whose shareholders were wholesalers. Gemcell negotiated trading terms with suppliers on behalf of wholesalers; Gemcell is not a party to the present proceeding.
The Wholesalers and Gemcell were members of a so-called “Industry Association”, the Electrical Wholesalers Association of Australia Ltd (EWAA), the twelfth respondent. The EWAA was not represented before me and has taken no active role in the proceeding. The Constitution of the EWAA required that its members be wholesalers involved in the Australian electrical wholesale industry, have a minimum of 100 dedicated electrical wholesale outlets in Australia, and have an annual group turnover of not less than $500 million. Collectively, the members of the EWAA made the majority of wholesalers’ sales of electrical cable in Australia.
At this point, it is convenient to make reference to some other entities. Electra Cables (Aust) Pty Ltd (Electra) and General Cable Australia Pty Ltd (General Cable) were each cable importers. Further, in addition to the Wholesalers, there were other domestic wholesalers of electrical cable including CNW Pty Ltd (CNW), Middendorp Electric Co Pty Ltd (trading as Middy’s) (Middy’s), P&R Electrical Wholesalers Pty Ltd (P&R) and Starclip Enterprises Pty Ltd (trading as Myelec and LED Kewdale) (Starclip). CNW was part of the BGW Group and was a shareholder of Gemcell.
The ACCC’s principal case is that in February 2011, the directors of the EWAA met and identified a number of objectives that the EWAA should seek to achieve. It is said that a key objective was to reduce the amount of direct dealing or direct supply of electrical cable by, inter alia, Olex and Prysmian to contractors and end-users, rather than selling to wholesalers who would then on-supply to contractors and end-users.
The ACCC says that at that time Olex and Prysmian were facing increasing competition from importers of electrical cable. It is said that between 2008 and 2010, the amount of imported electrical cable that was sold to wholesalers in Australia increased by about 40%. Apparently this caused manufacturers such as Olex and Prysmian to lose significant market share in terms of their supply to wholesalers.
The ACCC says that on 8 March 2011, representatives of Olex and Prysmian attended a meeting of the directors of the EWAA where a possible restructure of the cable industry to help address these issues was discussed. Further, between March and June 2011 a series of detailed proposals were developed for how such a restructure might be achieved.
The ACCC says that the essence of this restructure was to move to a state of affairs whereby Olex and Prysmian would substantially curtail sales of electrical cable to anyone other than wholesalers, in return for the members of the EWAA supporting such manufacturers.
The foundation of the ACCC’s principal case concerns the events of 23 June 2011. On 23 June 2011, representatives of Olex and Prysmian attended a meeting of the EWAA (the 23 June 2011 meeting); the characterisation of whether this was a meeting of the members of the EWAA, the directors of the EWAA or a hybrid informal meeting can be put to one side for the moment. The ACCC alleges that during the 23 June 2011 meeting, Olex and Prysmian on the one hand, and the Wholesalers on the other hand, made or arrived at an arrangement or understanding (for convenience I will refer to this as the relevant arrangement or understanding) containing provisions (the relevant provisions) to the effect that:
(a)Olex and Prysmian would increase their cutting services fees to $85 per cut for electrical cable and the Wholesalers would not object to those fees (cutting fee provision);
(b)Olex and Prysmian would introduce fees of $250 for orders of electrical cable less than $2,500 in value and the Wholesalers would not object to those fees (MOV provision); and
(c)the Wholesalers would maintain or increase the volume and/or value of electrical cable that they acquired from Olex and Prysmian (support provision); the support provision was amended by the ACCC during the trial as I will explain later.
The ACCC alleges that each of those provisions was an exclusionary provision for the purpose of s 4D of the Competition and Consumer Act 2010 (Cth) (the Act) and a cartel provision for the purpose of s 44ZZRD(1) and that by making and giving effect to the relevant arrangement or understanding, Olex, Prysmian and the Wholesalers contravened the Act. The ACCC also puts an alternative case that the relevant arrangement or understanding was made between just Olex and the Wholesalers. I will return to the ACCC’s pleaded case and its evolution later.
The ACCC says that the relevant provisions in themselves had either the or a substantial purpose of creating a disincentive for contractors and end-users to purchase cable directly from Olex and Prysmian. Further, it is said that the relevant provisions were steps taken to achieve the wider strategy described above, which had a purpose that was proscribed by ss 4D and 44ZZRD of the Act.
In summary, I would reject the ACCC’s principal case. Before descending into the detail, I would make the following observations.
First, the ACCC’s case has been circumstantial and by the end of the trial was sought to be constructed from a plethora of documents dispersed over 35 volumes of a court book. Those documents were sourced from different entities and authors. Many of the documents necessarily had to be considered in their precise context and cross-admissibility questions loomed large. The respondents, with some justification, contended that many of the documents could not connect the various respondents with each other in such a way as to give rise to the contraventions alleged. I would note at this point that the ACCC did not plead or run any attempt case.
Second, all witnesses called at trial gave evidence which was largely adverse to the ACCC’s case. Indeed, in relation to one of the ACCC’s witnesses who had been given immunity, Terrence Davis, it was the ACCC that, surprisingly in one sense, submitted that I should not treat his evidence as reliable.
Third, in my view there was little if any probative evidence that Prysmian was a party to the relevant arrangement or understanding. This partly explains one evolution that occurred in the ACCC’s pleaded case, which was to put an alternative case that the relevant arrangement or understanding was made between just Olex and the Wholesalers. Of course, such an alternative case had problematic commerciality dimensions.
Fourth, Graeme Moncrieff, the then Chief Executive Officer of Olex, gave evidence adverse to the ACCC’s purpose case. Although at times his evidence was non-responsive and his manner occasionally pugnacious, I largely found him to be a credible witness. The content of his evidence and that credit foundation is sufficient to find against the ACCC’s principal case, whether its primary case involved both Olex and Prysmian as parties to the relevant arrangement or understanding or the alternative case which did not involve Prysmian as a party.
Fifth, Guy Picken, the then Chief Executive Officer for Rexel, also gave evidence against the ACCC’s principal case. I have also found him to be credible. And again, the content of his evidence and that finding is sufficient to find against the ACCC’s case. If Rexel was not a party to the relevant arrangement or understanding as one of the Wholesalers, then the principal case fails for this reason as well. The ACCC did not seek to run a case of the relevant arrangement or understanding involving one or more of the Wholesalers. Rather, its case required all of the Wholesalers to be parties. In other words, for the ACCC’s case to succeed, Rexel had to be shown to be a party. In my view the ACCC did not establish this.
Sixth, the ACCC’s case was principally based upon what was allegedly said at the 23 June 2011 meeting, the minutes thereof and the purpose(s) of the various participants at that time. But there were a number of insurmountable difficulties for the ACCC including the following:
(a)The persons present at the 23 June 2011 meeting who gave evidence before me did not support the ACCC’s version of events.
(b)Further, the finalised minutes of that meeting did not support the ACCC’s version of events.
(c)Further, the ACCC’s “consciousness of guilt” thesis advanced in the context of the evidence showing modifications between the draft minutes and the finalised version had a superficial allure, but ultimately was not sustainable.
Seventh, the ACCC understandably sought to place the 23 June 2011 meeting in the context of the parties’ dealings and conduct (whether jointly or unilaterally) before that time (as reflected in the voluminous documentary material tendered) and the context of the parties’ dealings and conduct thereafter. No doubt it had in mind, in the context of circumstantial cases, Wigmore’s conceptual categorisations of evidentiary facts to the extent that they might afford proof or an indication that was prospectant, concomitant or retrospectant. But accepting that I must consider all of the evidence and consider the probative force of its combined weight, without being distracted by simplistic “strands in a cable” or “links in a chain” type metaphors, nevertheless the ACCC’s case does not withstand analysis, particularly when one has regard to s 140(2) of the Evidence Act 1995 (Cth).
Now I accept that it will be rare in contexts such as the present for parties to have openly committed themselves to each other in an easily detectible fashion. And I accept that cases such as the present are likely to be wholly or substantially based upon circumstantial evidence. But to so recognise such realities does not relieve the ACCC of discharging its onus, particularly in relation to meeting the standard of proof required to be met in the present context given the seriousness of the allegations made and the fact that pecuniary penalties are sought.
Eighth, I am able to dispose of the ACCC’s primary case on the facts, albeit that its forensic dimensions are tricky and diffuse. However it is necessary to say something about the legal framework, which I do later. But the ACCC’s primary case does not require me to resolve questions of statutory construction and does not invite intellectualisation upon theoretical themes whether legal or economic.
Ninth, given that I have found that the relevant arrangement or understanding or its alternative was not made, the ACCC’s “giving effect to” case must also fail. Again I should say, if it is not already apparent, that because the ACCC ran a circumstantial case, the evidence on the “giving effect to” allegation has also needed to be considered on the question of whether the relevant arrangement or understanding was made. But to be clear, I am making this ninth point to simply reflect the separation of the legal frameworks of “making” and “give effect to” rather than suggesting any bright line forensic separation in the context of a circumstantial case.
Tenth, the ACCC has also brought claims against various individuals alleging accessorial liability. In some cases those individuals have had before me separate legal representation from their corresponding corporate entities. I will discuss later the evidence concerning the conduct and state of mind of relevant individuals to the extent that it relates to the allegations against the principal contraveners. But given that I have found against the ACCC as to the existence of the relevant arrangement or understanding (with or without Prysmian), it is unnecessary to separately discuss the accessorial claims against the individuals and to apply Yorke v Lucas type principles on the alternative hypothetical foundation as if I had found that the relevant arrangement or understanding had been made. Such an exercise would be artificial.
Eleventh, the case against the EWAA was only one of accessorial liability. The case against it also fails for lack of a foundation.
Thus far I have only dealt with the ACCC’s primary case. Let me now turn to the ACCC’s secondary and separate case.
In addition to the ACCC’s primary case against all respondents, the ACCC has pursued a separate bid rigging case against one of the Rexel entities and Prysmian. The ACCC alleges that Rexel Electrical Suppliers Pty Ltd (Rexel Electrical), the fifth respondent only (rather than including Australian Regional Wholesalers Pty Ltd), and Prysmian engaged in bid-rigging in contravention of the Act. On 13 May 2011, Caltex Refineries (NSW) Pty Ltd issued a request for proposals to supply it with electrical cable for an upgrade of its Kurnell Refinery in Botany Bay, New South Wales. Both Rexel Electrical and Prysmian submitted bids in response to that request. The ACCC alleges that before doing so they made or arrived at an arrangement or understanding containing a provision with the purpose of directly or indirectly ensuring that Rexel Electrical’s bid was more likely to be successful than Prysmian’s bid. The ACCC alleges that the provision was a cartel provision within the meaning of s 44ZZRD(3)(c)(ii) and that Rexel Electrical and Prysmian made and gave effect to that arrangement or understanding in contravention of ss 44ZZRJ and 44ZZRK. I will deal with this secondary case in a separate part of my reasons after I have dealt with the principal case against all respondents. For present purposes, all that need be said is that I reject this case as well.

For convenience, the balance of my reasons has been divided into the following sections:
(a)The relevant individuals ([28] to [38]);
(b)Factual chronology ([39] to [389]);
(c)The reliability of witnesses ([390] to [455]);
(d)The pleaded case and its evolution ([456] to [467]);
(e)Relevant legal principles ([468] to [507]);
(f)No case submission ([508] to [513]);
(g)Alleged making of relevant arrangement or understanding ([514] to [639]);
(h)Alleged price fixing ([640] to [659]);
(i)Alleged giving effect to relevant arrangement or understanding ([660]);
(j)Asserted anti-overlap defences ([661] to [665]);
(k)Individual respondents’ liability ([666] to [667]);
(l)Bid-rigging ([668] to [799]);
(m)Conclusion ([800]).
A. THE RELEVANT INDIVIDUALS
The individual respondents to the proceeding are each officers of Olex, Prysmian, Rexel, L&H or CNW. As I have said, the ACCC alleges that such individuals aided, abetted, counselled, procured, induced or were knowingly concerned in or party to the principal contraventions.
In order to understand the case against the alleged principal contraveners, it is appropriate to elaborate further on these and other individuals before descending further into the factual background. I would note at this point that generally speaking no respondent argued that the conduct or state of mind of an individual officer or employee could not be attributed to the corporation of which they were such an officer or employee, save that in relation to the 23 June 2011 meeting it was contended that whatever was said by any representatives of the Wholesalers at the EWAA meeting did not bind their individual entities as such.
In relation to Olex, its general manager at the relevant time, Tony Dunstan (Dunstan), was joined as the second respondent. He was the General Manager – Building and Industry and Sales (1 January 2011 to 19 September 2011) and General Manager – Sales and Marketing (19 September 2011 to 23 July 2012). Dunstan did not give evidence before me. Graeme Moncrieff (Moncrieff) was the Managing Director of Olex during the period from 1 January 2011 to at least 23 July 2012. He gave evidence before me which I have found to be reliable. I will discuss his evidence and reliability questions later. Other Olex individuals who are appropriate to mention are Evan Hudleston, Business Strategy and Pricing Manager (1 January 2011 to 10 September 2012), Greg Stack (Stack), National Sales Manager – Building and Industry (1 January 2011 to at least 23 July 2012), Julien Hueber (Hueber), General Manager – Supply Chain (1 January 2011 to at least 23 July 2012) and Peter Weir, Information Systems Manager from October 2015. None of these individuals gave evidence before me.
In relation to Prysmian, Llyr Roberts (Roberts), its Managing Director – Oceania (1 January 2011 to July 2011) and then Chief Executive Officer – Australia and New Zealand (from July 2011) was joined as the fourth respondent. Other relevant Prysmian personnel were Hamavand Shroff (Shroff), Commercial Manager – Trade & Installers (1 January 2011 to 31 January 2012) and Supply Chain Director – Australia and New Zealand (1 February 2012 to 24 July 2012), Stephen Haller, Executive General Manager (Commercial) – Oceania (January to June 2011) and Commercial Director – Australia and New Zealand (June 2011 to at least 23 July 2012), Irene Georgiades, Tenders Team Leader (Commercial), and David Klarich (Klarich), General Counsel, Oceania and then Australia and New Zealand (January 2011 to at least 23 July 2012) and also Company Secretary (July 2011 to at least 23 July 2012). Prysmian called no oral evidence. As it turns out, this was a strategically astute call by Prysmian.
In relation to Rexel, Guy Picken (Picken), Chief Executive Officer and Managing Director of Rexel Holdings Australia Pty Ltd (the holding company) (2006 to 28 February 2015) was joined as the seventh respondent and was separately represented to Rexel. He had also been a director of each of the Rexel entities at the relevant time(s). Picken had also been a director of the EWAA (15 February 2011 to at least 23 July 2012) and the EWAA’s Chairman from mid-2012. Picken was called as a witness by Rexel and gave evidence before me in the last phase of the trial; I also found him to be reliable. I will discuss his evidence and reliability questions later. Another relevant individual of Rexel who was called as a witness, but by the ACCC, was Paul Alderson (Alderson), National Sales Manager (March 2008 to March 2011) and Cable Market Development Manager (March 2011 to July 2012). Other relevant individuals were Tony Bombardiere (Bombardiere), Executive General Manager of John R. Turk and Ideal Electrical Wholesalers (Qld & Vic) (1 August 2009 to at least 23 July 2012) and a director of the EWAA (15 February 2011 to at least 23 July 2012), Nadine Brochut (Brochut), General Manager – Strategic Sourcing and Supply Chain throughout the relevant period, Roger Edgar (Edgar), Executive General Manager (at least 1 January 2011 to 15 June 2012) and a director of the EWAA (15 February 2011 to at least 23 July 2012), Darryl Milburn, Business Manager, Michael Power, Executive General Manager (15 June 2012 to at least September 2012), Wayne Williams, Executive General Manager of a related concern (September 2010 to July 2012) and Ruby Faulkner, assistant to the Managing Director.
In relation to L&H, Robin Norris (Norris), the Chief Executive Officer and a director throughout the relevant period, was joined as the ninth respondent. He was also a director of the EWAA throughout the relevant period. He did not give evidence. He was separately represented to L&H. Other individuals related to L&H who were also not called as witnesses were Ian Haddon (Haddon), Executive General Manager at the relevant time and also a director of the EWAA throughout the relevant period, and Stephen Hanlon (Hanlon), General Manager and the Executive General Manager – Commercial and Supply Chain (October 2005 to at least 23 July 2012) and also a director of EWAA throughout the relevant period.
In relation to MMEM, which was not a party, Colin Lamond (Lamond) was its Chief Executive Officer at the relevant time and also a director of the EWAA throughout the relevant period, Kevin Irwin (Irwin) (now deceased) was its Managing Director (19 May 2000 to June 2014) and also a director of the EWAA throughout the relevant period and Terrence Davis (Davis) was a General Manager and also a director of the EWAA at the relevant time. Only Davis gave evidence before me. I will discuss his reliability later. He was called by the ACCC.
Brian Webb (Webb) was joined as the tenth respondent to this proceeding. He was the Managing Director of CNW (1986 to 2014), a director of the EWAA throughout the relevant period and also Chairman of the EWAA (February 2010 to a date before 2 July 2012). He did not give evidence before me.
Lawrence Murphy (Murphy) was joined as the eleventh respondent to this proceeding. He was a director of both CNW and Gemcell at the relevant time and a director of the EWAA throughout the relevant period. He did not give evidence before me.
Anton Middendorp (Middendorp) was a sales director of Middy’s, a director of Gemcell and a director of the EWAA at the relevant time(s). He also did not give evidence before me.
Finally, I should say something further concerning the EWAA. I have referred to its directors from time to time, viz, the Rexel representatives (Picken, Bombardiere and Edgar), the L&H representatives (Norris, Haddon, Hanlon), the MMEM representatives (Lamond, Irwin and Davis) and the Gemcell (and others) representatives (Webb, Murphy and Middendorp). As I have said, Webb was the Chairman of the EWAA at the relevant time of the events in question and Picken was later Chairman of the EWAA from mid-2012. The company secretary was Nick Geddes (Geddes) (1994 to November 2011, save and except for the 23 June 2011 meeting). Geddes was a director of Australian Company Secretaries Pty Ltd and gave evidence before me. He was called by the ACCC. I will discuss his evidence later. At the 23 June 2011 meeting of the EWAA, Geddes was not available and accordingly not present. In his place, John Lemon (Lemon) was used as the company secretary for that meeting. Written evidence of Lemon was tendered before me, although it added little to the other evidence.
B. FACTUAL CHRONOLOGY
It is convenient at this point to set out a detailed factual chronology with elaboration on some of the key factual issues. I will deal later with reliability questions concerning some of the witnesses.
(a) State of the electrical cable industry in 2010 and 2011 – Background
Manufacturers and importers supplied electrical cable to wholesalers who re-supplied that cable to contractors and end-users. Nevertheless, manufacturers and importers also supplied electrical cable directly to contractors and end-users. This was known within the industry as “direct dealing” or “direct supply”.
Traditionally, Olex and Prysmian had faced only passive competition from importers. But between 2008 and 2010, importers’ sales to wholesalers increased substantially. According to Prysmian’s estimates, Electra (an importer of cable manufactured in China) had grown its market share from 11% in 2008 to 19% in 2010 and General Cable (an importer of cable manufactured in, inter alia, Thailand and the Philippines) had grown its market share from 10% in 2008 to 17% in 2010. In total, Prysmian estimated that the market share of importers had risen to in excess of 55% by early 2011.
By early 2011, Olex and Prysmian were faced with considerable competitive pressures to maintain the viability of their cable manufacturing operations in the face of these competitive pressures. Prysmian considered that local manufacturers were unable to compete with imports on price and that the current level of pricing was unsustainable for local manufacturers. Olex was also concerned about the competition from imports.
In terms of direct supply by Olex and Prysmian, this commonly occurred in relation to customers that purchased large amounts of cable ($100,000 or more).
By reason of the increased competition from imported cable, in early 2011 Prysmian’s market strategy was to further diversify its customer base by increasing its direct sales business. This had the effect of increasing the level of competition between it and wholesalers. Prysmian accepted that “[t]his may mean taking [a] contractor from [Olex] or an unfriendly wholesaler”.
It appears that the level of direct sales was a source of friction between Olex and Prysmian on the one hand and the Wholesalers on the other which they initially sought to resolve through bilateral discussions in the early part of 2011. But before proceeding further with the chronology, I should note various restructuring steps taking place within Olex at this time.
(b) Olex’s supply chain initiatives
From the time that Moncrieff became Managing Director in mid-2010, Olex’s manufacturing business in Australia was facing a number of commercial challenges. Those challenges included:
(a)a transaction-based approach to doing business which was locally focused and inefficient;
(b)warehousing and stock issues;
(c)poor relationships with its wholesale customers;
(d)a high “cost-to-serve” caused in part by a high number of small orders particularly by wholesalers;
(e)increasing imports of low voltage (LV) cable into Australia.
Moncrieff officially commenced at Olex in July 2010, however, he had worked at Olex from mid-May 2010, pending the end of his employment at Amcor. At this time, Olex faced significant commercial challenges that had negatively impacted upon profit.
The key commercial challenges that Olex faced in 2010 and 2011 included the following:
(a)First, Olex had a “transaction-based” business model which was locally focused, highly transactional and inefficient. Olex and potential customers would typically interact multiple times for any given sale. For example, customers frequently dealt with several Olex employees at different levels of the organisation before they could obtain a price for a product. This increased overhead costs for the business and caused frustration for customers.
(b)Second, during 2010 and 2011, Olex had a network of seven State-based distribution centres for storing and distributing a variety of products, but stock availability was an ongoing issue.
(c)Third, after his commencement at Olex, Moncrieff visited Olex’s wholesalers and observed that a number of them were unhappy with Olex’s approach to product sales and distribution. Moncrieff also formed the view that the wholesalers were not providing Olex or its customers with a sufficient “value add”. For example, wholesalers often failed to aggregate purchases amongst their network of branches, choosing instead to rely upon Olex to distribute product to individual branches within the wholesaler’s network. In addition, wholesalers would order smaller lengths of cable requiring Olex to cut cables, rather than ordering uncut cables and cutting the cables themselves. This was delaying delivery performance and decreasing Olex’s profitability.
(d)Fourth, Olex had a high “cost-to-serve” to its customers which was due to Olex’s inefficient supply chain; Olex dealt with a high number of small purchase orders from wholesalers. There were a number of tasks that were required to service a purchase order and therefore high numbers of small orders led to a higher cost-to-serve compared with a low number of larger orders. The tasks that were required to service an order, regardless of order size, were negotiation of terms including price, and various administrative tasks and warehouse and distribution tasks.
(e)Fifth, Olex faced increasing competition from foreign imports of low voltage cables. Electra increased its activity in the Australian market following the global financial crisis by supplying a low cost “commodity” cable that was suitable for the Australian Government’s “Building the Education Revolution” program. Another major importer of cable in 2010 and 2011 was General Cable, which was part of the US-based General Cable Corporation, one of the world’s largest wire and cable manufacturers.
Nexans S.A. (Nexans) was the French-based parent company of Olex at the relevant time. Nexans acquired Olex in 2006. After commencing at Olex, Moncrieff was told by the Nexans management that he should investigate strategies to reduce Olex’s high cost-to-serve. Specifically, the Nexans management told Moncrieff that he should understand the business model adopted by Nexans Canada, which involved strong relationships with wholesalers and a relatively low cost-to-serve, and to consider whether it would be applicable in Australia.
Reform of Olex’s business model
In about October 2010, Moncrieff prepared a presentation which set out a proposal for structural and operational reforms at Olex. The object of the plan was to transform Olex into a more strategic, customer-focused and market driven organisation with a lower cost-to-serve.
Key aspects of this reform plan were the following:
(a)First, a separate supply chain function would be established that was independent of and acted as a conduit between the sales team and the manufacturing team. This was aimed at better harnessing the strengths of the business by improved processes and systems. As part of this restructure, Moncrieff created the role of General Manager – Supply Chain and appointed Hueber to this position.
(b)Second, Olex’s commercial operations were restructured which involved implementing a channel-based sales structure (where the focus was on sales by specific distribution channel) in contrast to the existing geographic-based sales structure (where the sales efforts were organised by geographical regions and managers focused on sales and warehouses in their region). The three channels that were implemented were Building (which serviced wholesalers and contractors/installers), Energy and Infrastructure (which included the mining and resources, oil and gas, rail and electricity industries), and Industry and Export.
(c)Third, to address inefficiencies in stock holding and availability, products were re-categorised into three classes and moved towards a centralised warehousing control function.
(d)Fourth, a process of product rationalisation occurred at Olex’s Lilydale manufacturing plant, where the majority of Olex’s LV cables were manufactured, which involved reassessing products produced at the plant and deciding to discontinue certain products, outsourcing the production of certain products, and creating new production rules for products that would be produced in the future. The rationale for the product rationalisation was to increase the run time of the machines and reduce the set up time.
(e)Fifth, Olex’s business was reorganised from a business unit structure to a functional structure. The functional units established were Sales and Marketing, Operations, Supply Chain, Finance, Human Resources, Information Systems and New Zealand.
(f)Sixth, during the course of 2011, Olex continued to consider its approach to warehousing, customer service and quotations. Olex’s warehouse footprint was too large and Olex decided that it should exit smaller warehouses.
Reform of Olex’s supply chain
In addition to the Olex internal restructuring reforms, Moncrieff decided that reforms were needed to improve efficiencies in Olex’s supply chain. This would allow Olex to reduce its cost-to-serve which would also reduce costs for its customers. The efficiencies would be a mutually beneficial outcome for Olex and its customers.
In early 2011, after Hueber commenced at Olex, Moncrieff started having discussions with Olex’s key wholesaler customers on the need for changes to the supply chain. The aim of these changes was to address Olex’s high cost-to-serve at the time. The discussions were pursued individually with each of the wholesalers and were mostly conducted by Dunstan and Hueber.
Olex implemented supply chain improvement initiatives with L&H and Rexel. In respect of L&H, Olex first introduced a Vendor Managed Inventory (VMI) model at L&H’s distribution centre in Knox, Victoria which was subsequently extended into South Australia and New South Wales. In respect of Rexel, a VMI model was rolled out firstly in Mitcham, Victoria and subsequently in Eastern Creek, New South Wales. The VMI model reduced the number of transactions that needed to be processed in dealings between Olex and its wholesale customers.
By 2011, Olex had in place a cutting fee of $35 plus GST per cut. Apparently, according to Moncrieff, the cutting fee was often not charged by Olex. Depending on the contractual arrangement, large end-users would often not pay a cutting fee. Other customers, such as large or medium sized contractors would often negotiate a waiver of the cutting fee on an ad hoc basis. Olex provided a cutting service only if a customer ordered cable. In other words, in one sense it was not a separate service from the supply of cable. The relevance of this observation will become apparent later when I deal with the price fixing case. Olex incurred substantial costs in cutting cable for its customers, which included the following:
(a)First, there were operational labour costs as the cutting service was done either manually or via a rewind machine. Regardless of which method was used, an operator was needed. For larger drums, additional time was required in order to move the drums with a forklift from a storage location to the machine. Further, depending on the diameter and the weight of the cable, the cutting process required different equipment.
(b)Second, costs were incurred in procuring and storing additional drums as the cutting service involved products on a single drum being split between multiple drums. Further, transporting multiple drums (rather than a single drum) was costly and less efficient.
(c)Third, there were administrative labour costs incurred when cable had been cut and wound onto a new drum; additional quality documentation including additional product certifications recording the new batch number was required.
(d)Fourth, there were costs from managing and disposing of waste from tail ends or off-cuts from cutting cable which could not then be sold.
(e)Fifth, holding numerous cut drums in locations around Australia increased the inventory levels in the business and therefore required increased working capital.
Low voltage cable

Before proceeding further, I should make mention of the different types of electrical cable supplied. Electrical cable can be categorised as low, medium or high voltage. Low voltage cables are electrical cables which carry up to 1,000 volts. Medium voltage cables carry between 1,000 to 11,000 volts. High voltage cables carry over 11,000 volts.
LV cables are used in secondary distribution infrastructure to carry electricity from transformers to end-users and to carry electricity throughout the end-user’s premises, which are typically homes or businesses. LV cables are comprised of a conductor made of either copper or aluminium, a layer of insulation and in many cases of sheath, which sits on top of the insulation layer.
(c) February 2011 dealings
On 7 February 2011 Olex and Rexel conducted a workshop in which they discussed their relationship. In its presentation to Rexel at that workshop, Olex noted that its sales to Rexel had declined from $51.3 million in 2007 to $23.8 million in 2010. In Rexel’s presentation to Olex, Brochut observed that local manufacturers competed with Rexel, sent salesmen to the distributor, contractor and end-user (often multiple distributors and contractors) and distributed to the distributor, contractor and end-user. Brochut suggested that Rexel wished to consolidate their business to become a strategic partner of Olex as such a partner would not compete with it. Brochut stated that the opportunities of this arrangement included to reduce market competition on direct business and to slow down importer entry in the Australian market.
In elaboration, Rexel’s cable workshop presentation to Olex expressly made the points that:
(a)Olex and Prysmian dominated the Australian market “with a share of direct business over 75%”;
(b)“Major erosion has been dramatic in the cable segment for both manufacturers and distributors”;
(c)Local manufacturers “[c]ompete with us”;
(d)Local manufacturers “[s]end Salesmen to the distributor, contractor and end user…”;
(e)“A strategic partner never competes with us”;
(f)“Align Business model to save costs for both parties”.
The presentation also contained simple flow charts (slides 8 and 9) showing the manufacturers not supplying to the end-user. In other words, in Rexel’s view, Olex should change its business model so that it only sold to wholesalers/distributors.
Now this was Rexel’s wish list so to speak. But the manufacturers, on the evidence, did not agree to any such restructuring.
I should say that on 6 February 2011 at 4:10pm, Brochut had sent Picken a draft of this presentation, and said that she planned to share it with Olex and Prysmian. Picken replied to Brochut’s email at 6:54pm and among other things said, “There is nothing in here we shouldn’t say. I don’t think you are going to get them to agree never to compete but what they need to understand [is] there can be no half measures. To survive they can’t afford to have sales and logistics functions their competitors don’t and once they realise this and restructure they won’t be able to complete [sic]”. The reference to “complete” should have been a reference to “compete”.
Picken gave evidence that the context, in which the cable workshop presentation suggested that Olex and Prysmian should not compete, was in relation to the proposed strategic partnerships. In Picken’s view, in the event that Rexel entered a strategic partnership with one of the cable manufacturers, it would not work if Rexel committed to purchase all of its cable supply from that manufacturer but that manufacturer could compete against Rexel for projects.
Picken understood that the aim of the cable workshop presentation was to provide a basis for exploring with Olex whether Olex and Rexel could agree on a model that would result in the lowest cost distribution of Olex’s LV cable, and that this would involve Rexel acting as Olex’s LV cable distributor. Picken believed that this model could work in relation to “day to day” supply of LV cable for electrical contractors, manufacturing and industrial customers, and in relation to supply of LV cable for capital expenditure projects where the customer wanted a “managed service” that meant a wholesaler could add value.
I have discussed dealings between Olex and Rexel at this early time. Let me make some brief observations concerning the dealings around this time between Prysmian and Rexel. In early 2011, Prysmian prepared an internal strategy document for its bilateral negotiations with Rexel. The strategy document noted under the heading “What is RGA [ie Rexel] looking for?” that Rexel was looking for a partnership with two main suppliers, but that:
[i]n return they want the supplier to hand over [the] majority of their direct business and for the supplier [Prysmian] to also put barriers in place for the direct business e.g. a contractor to buy from the supplier would pay [a] significant premium, or better still the supplier only sells majority of the range in standard packs to the end user or charges a premium for cut lengths.
Subsequently, Prysmian prepared an agenda for a meeting with Rexel in which Prysmian proposed that “in return” for placing “parameters” on direct business, Prysmian should receive from Rexel “a guarantee on volume and margin”.
On 8 February 2011, Prysmian and Rexel also conducted a workshop, in which Brochut proposed that the two parties should work towards entering into a strategic partnership.
Rexel’s state of mind in early 2011
Picken gave evidence of the following matters relevant to his and accordingly Rexel’s state of mind at the time, which evidence I accept.
During Rexel’s meetings with Olex and Prysmian up to early 2011, the manufacturers’ representatives said that they were experiencing financial difficulty. In particular, Picken recalls that Olex representatives said in those meetings that Olex was losing money across the whole company and was experiencing difficulty in competing with cable importers. Picken also recalls that the Olex representatives said that Olex was facing a decision as to whether it would continue to manufacture cable in Australia, or whether it would exit local manufacturing and sell foreign manufactured cable in Australia. Picken also recalls that Prysmian representatives said in meetings with Rexel in 2010 that Prysmian was losing money on LV cable due to the loss of volume to cable importers.
From Picken’s perspective, the main reason why Olex and Prysmian were experiencing financial difficulty, and were not able to match Electra on price, was because their non-production overheads in Australia were substantially higher than Electra’s overheads. Unlike Electra, which at that time only had a small team of distribution and sales personnel in Australia, both Olex and Prysmian had a number of Australian employees performing roles ranging from research and development, to occupational health and safety, to distribution and sales.
For some time Picken had also held the view that Rexel had been acting more like a cable “retailer”, than a cable “wholesaler” or “distributor”.
Picken considered that Rexel’s ordering practices were inefficient, in that there were frequent orders from individual branches for relatively small quantities of cable, rather than orders being consolidated. This produced additional costs to manufacturers and also to Rexel. Whilst Rexel’s financial performance was healthy, Picken considered that Rexel could perform even better. As a consequence, Rexel was planning to develop larger distribution centres so that it could purchase cable in bulk, and distribute cable from those locations to its branches and customers. This would result in efficiencies for manufacturers, because the number of deliveries they would need to make to Rexel would be significantly reduced. Rather than delivering daily across Rexel’s branch network, a manufacturer could reduce that to a weekly delivery to a distribution centre. Given that Rexel already had trucks distributing to branches and customers, this would build on efficiencies already present in the supply chain, and remove a significant cost to manufacturers.
Given the views that Picken held at the time, there was to his mind an obvious solution to the financial difficulties that Olex and Prysmian were experiencing:
(a)First, if Rexel was to begin acting as a true cable distributor by buying cable in bulk at Big Box branches or distribution centres, the cost to Olex and Prysmian of supplying Rexel would be significantly lower than it had been. This was because manufacturers could deliver to a handful of centralised locations rather than delivering to Rexel’s national branch network of approximately 188 branches, and would reduce the need to employ third party logistics providers. Further, these deliveries would be of cable in standard lengths, and would not require the manufacturers to cut them, which would further reduce the manufacturers’ costs.
(b)Second, as a result of Rexel purchasing cable in bulk, Olex and Prysmian would be in a position where they could reduce the size of their respective sales forces, because they would no longer need to sell cable to each individual Rexel branch.
(c)Third, the manufacturing process would become more efficient, because the manufacturers would have a greater ability to predict the volume of any one type of cable, which would allow them to have longer production runs.
Moreover, there was the potential for even greater efficiencies if Olex and Prysmian used Rexel more as their cable distributor, which could further reduce their costs, including their sales and distribution costs.
Picken also considered that obtaining greater efficiencies would benefit Rexel, principally because he expected that a proportion of any efficiency gains to Olex and Prysmian would be passed onto Rexel in the form of cheaper overall cable prices, whether that was through a reduction in the unit price of the cable or a larger rebate. Picken expected this because unless Olex and Prysmian reduced their prices to Rexel, which at that time were around 10% more than the prices Electra offered to Rexel, they would not be able to achieve increased sales to Rexel or even maintain their current level of sales.
Picken also considered that it would be beneficial to Rexel to ensure the ongoing financial viability of the manufacturing operations of Olex and Prysmian in Australia for two strategic reasons. First, he was concerned that any reduction in cable manufacturing would lead to a reduction in competition between suppliers to Rexel, which might eventually lead to higher prices and less attractive conditions, for example payment terms. Second, he considered that it was important to have at least one Australian manufacturer to ensure that cable was readily available to Rexel at short notice. Two disadvantages of sourcing cable from overseas manufacturers were the long lead times and uncertainty as to when cable would be delivered.
Accordingly, the fact that Olex and Prysmian were experiencing financial difficulty, and the fact that Rexel was planning to act more as a cable distributor, presented an opportunity to market Rexel’s value to Olex and Prysmian respectively. It was Picken’s hope and objective in Rexel’s bilateral discussions with Olex and Prysmian respectively that the manufacturers could lower their costs and in turn lower the costs of cable to Rexel, including by Olex and Prysmian using Rexel to a greater extent as their cable distributor. This would help Olex and Prysmian resolve their financial difficulties.
To that end, Picken recalled having discussions in the course of his regular meetings in early 2011 with Olex and Prysmian about Rexel’s plans to begin buying cable in bulk, initially via its Big Box branch in Mitcham, and after that, through distribution centres. His discussions were to understand from Olex and Prysmian the extent to which they could offer lower cable prices if Rexel was to purchase cable in bulk and to market Rexel as a distribution channel for them.
(d) The EWAA
Before proceeding further with the chronology, it is necessary to say something about the EWAA. Prior to 2010, the EWAA had been inactive for some time. However, in May 2010, a meeting of the EWAA was held to reinvigorate the association. Changes to the EWAA’s board were discussed and future priorities were identified. It was agreed that the principal issue that the group faced was “leakage” which was described as contractors being supplied by manufacturers rather than wholesalers.
At an EWAA meeting on 3 February 2011, a number of new directors of the EWAA were appointed, namely, Picken, Edgar and Bombardiere as representatives of Rexel; Murphy and Webb as representatives of Gemcell; Hanlon and Haddon as representatives of L&H; and Lamond and Davis as representatives of MMEM. The directors resolved to appoint Webb as chairman.
The directors had a brainstorming session about objectives that the EWAA should aim to meet. Objectives were graded from one to five according to the benefits that they would deliver to members and the ease with which they could be achieved. Objectives that were the most difficult to achieve or provided the least benefit were graded one and objectives that were the easiest to achieve or would deliver the most benefit were graded five. “Direct supply” and “channel restructure” were both graded five in terms of the benefit that they would deliver.
The directors also discussed the viability of Olex and Prysmian. It was apparent to the directors that Olex and Prysmian were in financial difficulty. Olex and Prysmian had embarked on a series of measures to reduce the impact of imported cable on their businesses, including applying for anti-dumping duties to be imposed on certain imported cable, but those measures had been unsuccessful. It was discussed that while Olex and Prysmian should “move away from some of the direct business”, the EWAA should “support local manufacturers more”. The directors agreed that Olex and Prysmian would be invited to the next EWAA meeting to discuss the market situation.
(e) March 2011 meeting
On 7 February 2011, Moncrieff and Picken had a meeting where they discussed the anti-dumping action which Olex, Prysmian and Advance Cables Pty Ltd had lodged in respect of the products being imported by Electra. Moncrieff wanted the wholesalers including Rexel to agree to provide certain information regarding Electra’s pricing levels to the import/export advisor engaged by Olex and Prysmian. The information was necessary to support the anti-dumping case. Picken said that he would see whether Moncrieff could attend the next EWAA meeting so that they could discuss this further. At this point in time, Moncrieff had not been aware of the existence of the EWAA.
On 8 February 2011, Moncrieff sent an email to Picken confirming that he could attend an EWAA meeting on 7 March 2011 (the meeting was ultimately held on 8 March 2011) at Ernst & Young’s offices in Sydney (the March 2011 meeting), and requesting an agenda and a list of attendees for the meeting. Apparently, Moncrieff was not provided with an agenda or list of attendees prior to attending the March 2011 meeting.
Prysmian was also invited to the March 2011 meeting. On 2 March 2011, Roberts of Prysmian told his superior, Hans Hoegstedt (Hoegstedt), that he understood that at the March 2011 meeting, Rexel intended to table what had been discussed in the 8 February 2011 meeting between Rexel and Prysmian. Roberts stated that for that to work, Rexel wanted the cable manufacturers to, among other things, “stop the direct business”. Roberts stated that “the principle sounds OK although you can imagine what will happen when we have lost all of our direct channels to market and when Rexel start to squeeze us on price!”
On 8 March 2011, Roberts and Prysmian’s general counsel, Klarich, met with Dunstan and Moncrieff at the Hilton Hotel in Sydney. Klarich subsequently prepared notes of the meeting. During this meeting they discussed a number of issues including the formation of an Australian cable makers association and the EWAA meeting to be held later that afternoon.
At the outset of the March 2011 meeting, in attendance were representatives from Gemcell, L&H, Rexel (Picken) and MMEM. At about 4.35pm, Moncrieff, Dunstan and Roberts joined the meeting.
Discussion before the Olex and Prysmian executives joined the meeting
Before the manufacturers’ representatives joined the meeting, Picken said to the meeting that the purpose of the discussions was to assist Olex and Prysmian to improve their competitiveness (given their cable prices were approximately 10% higher than Electra’s prices). Picken did not believe he would have said this in the context of saying, nor did he say words to the effect of, “we need to agree on a cut-off below which they don’t go direct – but they need to be competitive and they need some guarantees” because, amongst other things, his state of mind at the time was the following:
(a)He was of the view that Rexel would not commit to buying any amount of electrical cable from Olex or Prysmian (whether that was the same amount or more) unless they committed to supplying their cable to Rexel at prices that were competitive with imported cable, and in particular, Electra’s prices, which were approximately 10% lower. Accordingly, it is probable that during this part of the meeting Picken said words to the effect of “they need to be competitive on price”.
(b)Picken recalls that, at some point during the meeting, Middendorp said that the Gemcell members could not cut cable above 25mm² in many of their branches, and that any initiatives to be discussed with Olex and Prysmian should be limited to cable up to this size. But Picken did not recall any discussion of a dollar value “cut-off” for direct sales and he did not say anything about this at the meeting.
Discussion while the Olex and Prysmian executives were present
After Moncrieff, Dunstan and Roberts joined the meeting, Picken recalls that Webb opened the meeting with the Olex and Prysmian representatives by saying words to the effect of “We’re here to explore how we can be better distributors for you”.
After that opening, Picken recalls there was a general discussion about duplication in the supply chain in the industry, the desirability of having trade price lists, and difficulties in the industry. There was also discussion about the competition that Olex and Prysmian were facing from importers. Moncrieff said that the “elephant in the room is Chinese imports” and expressed his concern that if Olex and Prysmian stopped supplying contractors and end-users, the wholesalers might supply them with cable imported from China rather than cable manufactured by Olex and Prysmian.
Picken recalls that during this part of the meeting, he asked Roberts a question with words to the effect of:
Are supply chain changes going to be enough if you’ve got significant costs like health and safety issues and R&D? There’s a lot of other overhead here that you have that an importer does not have. Have you done any modelling that suggests that just addressing supply chain costs will get you to the price level you need to be at?
Picken cannot recall Roberts’ response to his question, but he remembers feeling that Roberts had fobbed him off in his answer.
Picken also recalls Moncrieff saying during the meeting words to the effect of, “What you’re asking us to do is jump off a cliff without a parachute”. Picken remembers thinking, “Well, yes, I am.” This was because Picken considered that if the manufacturers did not improve their competitiveness they would be going out of business anyway, that is, if they continued to charge prices approximately 10% higher than Electra’s prices, they would continue to lose market share to importers like Electra.

Both Roberts and Moncrieff indicated that as part of any restructure they wanted some guarantees from the EWAA members. Moncrieff suggested that the EWAA put together a proposal for the manufacturers. He said that he wanted to know “[i]f we do X, what do we get in return”.
Picken recalls that there was a discussion about the electrical wholesalers performing some of the distribution function for Olex and Prysmian in order to improve the efficiency of the cable supply chain. During that discussion, the idea of limiting this to cable up to 25mm² was suggested after Middendorp said words to the effect of, “We would not be able to play at that level [ie all cables], because we have a lot of small wholesalers, so let's do the stuff we have already got equipment for”. Picken believed that Middendorp was speaking for the Gemcell members generally when he said this, and not just for Middy’s. This was his understanding because he believed that some Middy’s branches were quite large and would have had the capability to cut larger cable, whereas the smaller Gemcell members would not have had this capability.
Picken also recalls that Moncrieff expressed concern about Olex relinquishing its supply chain.
Further, in Picken’s mind, Rexel could not agree to buy more cable (or even the same amount) from Olex or Prysmian without knowing the price they would charge for it. He also recalls that there was a discussion that if a new distribution model that involved using wholesalers as cable distributors did not ultimately result in prices to the end-users falling below that of importers, it would mean that the model was not successful in improving efficiency and lowering the cost of cable.
Picken recalls that there was a discussion about the general concept of the wholesalers placing larger orders with Olex and Prysmian in order to give them greater efficiencies in their supply chain. However, he does not recall a specific minimum value of $5,000 being discussed during the meeting.
Moncrieff’s version of events is the following. At the meeting, there was discussion about the supply of low cost cables imported from China and Olex’s anti-dumping action in respect of those imports. Moncrieff said that Chinese imports were “the elephant in the room”. Picken said that the issue was that the Chinese were low cost manufacturers and Olex and other Australian manufacturers were high cost. Moncrieff said that the wholesalers’ current business models were unsustainable, and that the wholesalers had to act as “wholesalers”. Roberts said that Prysmian was not profitable and that the cost of cable being imported from China was lower than Prysmian’s variable costs. The EWAA members made various statements during the meeting. Moncrieff recalls forming the view at the time that the EWAA members appeared to have different views about the matters being discussed. He recalls that he said that wholesalers needed to work out what they wanted and that the wholesalers should put their comments in writing to Olex.
Once Roberts, Dunstan and Moncrieff had left the meeting, there was a further discussion amongst the EWAA directors about the measures that they should propose to Olex and Prysmian. Picken recalls that Middendorp volunteered to circulate a draft proposal to the EWAA directors for comment regarding how the EWAA might take the matters discussed with Olex and Prysmian further. However, Picken did not believe that there was any discussion that each of the wholesalers had agreed to implement the points that Middendorp would include in the proposal. They had not seen the proposal. Further, Picken could not have agreed to implement anything unless Olex and Prysmian told him the price they would charge Rexel for cable. Absent that, if there had been a discussion to that effect, Picken would have firmly rejected any such commitment on the part of Rexel.
Let me draw some threads together at this point. The evidence does not support a conclusion that Roberts and Moncrieff agreed at this meeting that they should speak with the EWAA about supply chain restructure so that manufacturers only sell cable to wholesalers, and wholesalers then sell to contractors and end-users. The minutes refer to supply chain restructure excluding “high end business” and involving the manufacturers delivering product to the wholesalers “in bulk”. But this does not mean that the manufacturers would only supply product to the wholesalers. It meant that manufacturers would supply products to wholesalers more efficiently in larger order sizes. Now the minutes state that Moncrieff and Roberts “agreed” certain matters, but I accept Moncrieff’s evidence that the matters were merely discussed and that no agreement was reached about them at the meeting.
Now although Geddes attempted to record various statements made at the meeting by handwritten notes, those notes are disjointed. Moncrieff’s evidence was that the discussion was free flowing and from Moncrieff’s perspective uncoordinated, confusing and contradictory. Such evidence is consistent with Geddes’ handwritten notes. Indeed, the minutes of the meeting prepared by Geddes make no attempt to summarise the discussion. Moreover, no decisions were made at the meeting and more importantly the ACCC does not allege that at this meeting any contract, arrangement or understanding was reached. Nevertheless, it is relevant context for the events that followed.
Now there is little doubt that the wholesalers through the EWAA were desirous of industry restructure and had considered at any early stage in 2011 a market/customer “sharing” arrangement. They well knew of the manufacturers’ difficulties and were desirous of structural change. For example, see an internal email of Middendorp on 4 February 2011 which referred to the EWAA and noted:
ŸKey issues to be dealt with up fron[t] include:
ŸSet up of 3^rd party credit bureau using NCI as the agency to co-ordinate – Guy sourcing proposal from them
ŸCable identified as the key issue for the group which I was very pleased to get up as the number one issue.
Ÿmanufacturers (olex & prysmian) to be invited to a special meeting in early march to discuss the market situation
Ÿneither mfr is making money presently and w/sale margins very poor
Ÿstructural change required with mfr’s to be encouraged to close some of their depots in favour of w’salers taking a more proactive approach with larger stocking/cutting facilities
Ÿmfr’s to move away from some of the direct business and w’salers to support local manufacturers more
Ÿno one wants the local mfr’s to scale down/shut their manufacturing which is a real possibility
Ÿtrade price list favoured by all and with EWAA & lex/prysman support we are confident that this can get up. Cu surcharge favoured also as any easy mechanism to reflect changes in cu price.
(errors original)
Indeed, early in 2011, some of the EWAA’s members appear to have asked “the cable suppliers to convert direct business back to the wholesale channel ‘in exchange’ for wholesale channel reducing their support of Chinese imports” (see the minutes of Gemcell’s directors’ meeting of 16 March 2011). There was also, I am prepared to accept, some awareness that this could potentially involve trade practices questions. Although the view seems to have been at the time that “[c]ollusion against customers is illegal but there is nothing to stop us acting in unison with suppliers” (see for example, Lamond’s email to Davis and others on 22 March 2011), there was some thought that there could be problems; see Vaughn Stephens’ response who expressed the problem in terms “that it is limiting our suppliers from servicing customers (contractors) directly which in turn, potentially changes the competitiveness of the market for the contractor”.
But where all of this takes the ACCC’s case is another matter. No doubt this is useful background context which the ACCC seeks to leverage off to make its principal case concerning the making of the relevant arrangement or understanding on 23 June 2011. But the subsequent course of events, particularly those closer to and on 23 June 2011, and which are more probative, do not make out the ACCC’s principal case. Let me continue with the chronology.
(f) The EWAA’s proposal and the Geddes email
After the March 2011 meeting, on 9 March 2011, Middendorp sent an email to other wholesalers in the following terms referring to the previous day’s EWAA meeting:
Guys,
Pls find below details of the discussion at yesterday’s meeting:
ŸObjective is to being about structural change to cable distribution whereby wholesalers take a greater role in the distribution of cable to the contractor market. This is being done to eradicate inefficiencies with the current distribution model whereby there is significant duplication of facilities and inefficient practices in quoting & distribution.
ŸWholesalers proposed to be the exclusive channel for all LV power cable to the contractor market.
ŸSuggested to tackle this objective in a staged approach whereby cables 25mm and below are worked upon initially with a view to encompassing all LV power cable over time.
ŸUnder this proposal the manufacturers will:
ŸMake wholesalers the exclusive channel for sales of LV power cable up to & including 25mm.
ŸOnly supply full pack quantities of these cables (ie: not cuts)
ŸCommit to keep wholesalers competitive in the market
ŸNot quote LV power cable up to & including 25mm (ie: wholesalers agreed day to day rates will apply). Quotes will still be done by manufacturers on cables 35mm and above. Quotes with combined quantities of <25mm cable & >35mm cable will only have the >35mm component quoted.
ŸProvide wholesalers who are supporting the local manufacturers with enhanced value added services and price differential on quotes (ie: LV power cables over 35mm). This enhanced service will only be available to supporting industry participants
ŸDevelop an industry wide trade price list that is actively promoted in the market. This is designed to better communicate price changes in the market to contractors, builders and their clients. This price list to be varied by product category and to operate broadly between 40-60% discount from trade price to wholesaler net prices (before rebates).
ŸUnder this proposal wholesalers will:
ŸPlace orders on manufacturers for a minimum of $5k (ex GST) per order
ŸCommit to increase their relative share of locally manufactured cable by say 5% total market share
ŸConsider protecting local cable manufacturers by quarantining say 5% rebate on imported cable brands and distribute this back to branches based on their relative support of local cable manufacturers
ŸIn order to provide effective information upon which to measure market shares of local vs. imported cable, information will be provided to an independent body (say a leading accounting firm) under confidentiality undertaking, that will aggregate the following information and provide relative market share information back to EWAA & the manufacturers:
ŸWholesalers to advise of their dollar purchases by supplier
ŸManufacturers to advise their dollar sales to wholesalers by customer
Other suggestions to manufacturers:
ŸDevelop a common brand identity for locally made product which is trademarked and licenced for use on locally made cable only. This is designed to facilitate more awareness at user level and potentially facilitate broader marketing initiatives promoting the use of locally made product.
Nick, can you pls review the above to ensure that we are not transgressing any legal requirements.
EWAA Directors can you pls review and provide your feedback by email copying all. I suggest that member organisations agree their feedback and provide only one response from each organisation (ie: four in total). All comments to be in by Friday 25^th March and our objective will be to get provide this information to the manufacturers by Thursday 31^st of March.
Now this is a draft proposal from the wholesalers, rather than the manufacturers, and at most can only speak to the wholesalers’ purpose or more correctly their “wish list”.
On 21 March 2011, Lamond described the earlier EWAA meeting in terms:
Terry [Davis] and I attended an EWAA meeting earlier this month at which the structure of the cable market, concerns over the viability of local manufacturers and what to do about it were discussed. Olex and Prysmian attended the latter half of the meeting.
Between 23 and 24 March 2011, Picken communicated via email with Gemcell and Middy’s in regards to the proposed EWAA proposal.
On 23 March 2011 at 2.19pm, Picken sent an email to the directors of the EWAA and Geddes. In that email, he referred to an “agreement in principal [sic]” with Olex and Prysmian. Picken says he meant an agreement in principle with Olex and Prysmian to explore opportunities in relation to realising efficiencies in the electrical cable supply chain. Part of the email is in the following terms:
The only person we have spoken to is Olex and Prysmian. We have no ‘agreement in principal’ with anyone else.
My understanding is our motivation here is to support these two organisations who add more value than others to our industry as long as they rethink their distribution policies. RGA are certainly not supportive of taking the concept beyond those two suppliers unless we all have the opportunity to discuss and agree to it. This was not the decision of the last meeting as such shouldn’t be included.
On 25 March 2011, Lamond in an email on behalf of MMEM wrote to other wholesalers:
MMEM is supportive of the intent to streamline the industry to make distributors the primary supply channel and reduce manufactureres’ [sic] costs. For this to have any serious chance of success I think it is imperative that we expand discussions beyond just Olex and Prysmian as, without broader agreement, these two will be further disadvantaged by direct suppliers/importers.
Subject to the following two concerns, I am happy with Anton’s wording as an accurate summary of the discussion and think it clearly puts the ball into the manufacturers’ court to see whether or not they are serious about working with us to address their current difficulties.
1/ The thought to “Consider protecting local cable manufacturers by quarantining say 5% rebate on imported cable brands …” is not one MMEM is comfortable with from either a commercial viewpoint or a legal one – we’re concerned this may be flirting with ACCC guidelines.
2/ MMEM’s shareholders do not generally share business information so we not [sic] want to provide cable purchase information.
Also, I agree that a new trade price structure should include an adjustment mechanism based on copper price movements in A$.
Also on 25 March 2011, Haddon in an email on behalf of L&H wrote:
On behalf of the L and H Group we confirm that we are in general agreement with Anton’s notes regarding cable distribution with the following comments regarding wholesalers’ commitments.
1. An area that may need addressing is wholesaler’s commitments to grow relative share of locally manufactured cable by say 5% total market share. We believe that the manufacturers will ask for a more concrete commitment. An alternative proposal could be to negotiate individual targets with each of us, relative to our current individual spend level. Having said this we are happy to leave initial proposal as per Anton’s note and see what the response is.
2. Quarantining of rebate on imported cable should be a commercial decision of each individual wholesale member not a widely agreed condition of the EWAA.
Further, also on 25 March 2011, Wayne Sampson (MMEM) wrote internally:
Some comments re proposed initiatives:
> Generally the objective / desired outcomes re changing the market structure for cable would be good for the industry, ie more business through wholesale should be of great benefit to our side of the industry.
> A point for consideration re Cable Cutting:
- It’s possible that non-participating cable companies (eg. the importers) will see a benefit if they elect not to follow the lead of the others re “no cutting < 25sq mm”.
This may come about as many contractors will actively seek out avenues to purchase direct from a cable companies [sic] that still supply / cut cables < 25sq mm. Similarly some wholesalers will seek out cable companies that will still cut < 25sq mm (for the convenience & potential cost saving of not having to do it themselves).
The end result could a [sic] strengthening of the importers as some business may well shift to them (or they attract it using the <25mm direct selling / cutting service as a selling differentiator).
- It may be worth requesting some statistics from the cable companies re the number of < 25 sqmm cable cuts involved and their estimate of the true cost of performing this function (i.e. $ per cut). Although the plan would see these cuts spread over many wholesalers it could be a big step for many of the individual locations to take on this service (i.,e, stock / personnel – time / OH&S matters / equipment, etc).
> Brendan’s comment re changing discount structures is important as its [sic] a big task to change discount structures – although this may be alleviated via a specially written program which automatically changes discounts via our computer systems (this has been done before).
> Expect a reaction form [sic] the contractors re the structural change – many will see it as a move against them. It will need to be explained (i.e. sold) well. Note that when the cutting charges were introduced some years ago many contractors complained to the competition regulator which resulted in a formal investigation (which was ultimately unsuccessful).
On 28 March 2011 at 1.36pm, Middendorp sent Picken an email in which Middendorp proposed amendments to the EWAA’s proposal circulated on 9 March 2011. At 2.33pm, Picken replied to Middendorp’s email and said that the proposal still referred to “increasing purchases to locally manufactured suppliers not Prysmian and Olex” and that “[t]his was [not] the agreement and is not [Rexel’s] position”. Picken’s comment that “This was [not] the agreement” was a reference to the fact that the EWAA had only had discussions with Olex and Prysmian. At the time Picken thought that Middendorp was trying to advance a self-interest, because he suspected that Middendorp had an interest in Advance Cables. Further emails were exchanged between Picken and the EWAA directors and Geddes on 29 March 2011 regarding the wording of the EWAA’s proposal to put to the manufacturers.
Now stopping at this point, a number of observations can be made.
First, this material demonstrates that at this point, no relevant arrangement or understanding had been reached between the manufacturers and wholesalers. What was being discussed by the wholesalers was a proposal to be put.
Second, this material demonstrates if at all the then state of mind of the wholesalers, not the manufacturers.
Third, the relevant emphasis was upon LV power cable and not all power cable.
Fourth, the wholesalers were aware of the manufacturers’ concerns to make or achieve costs efficiencies.
Fifth, this material provides some contextual support for a suggested broader restructuring within which the ACCC has contended that the relevant arrangement or understanding was entered into or was the first preliminary step(s). I will return to this dimension later.
By 5 April 2011, the EWAA’s proposal was finalised and was sent by the EWAA’s secretary, Geddes, to Moncrieff and Roberts (the Geddes email). The stated objective of the proposal was “to bring about structural change to cable distribution whereby wholesalers take a greater role in the distribution of cable to the contractor market”. A number of steps were proposed to achieve this objective, which relevantly included the following:
(a)First, the manufacturers would make the wholesalers the “exclusive channel” for cable up to and including 25mm cable and would only supply “full pack quantities” of cable up to and including 25mm cable. A “full pack” of electrical cable is a standard length of cable, that is, one that has not been cut to a shorter length at the request of the customer.
(b)Second, the EWAA members would increase the size of their orders to at least $5,000 per order and would increase the proportion of Australian made cable that they acquired.

Second, it is convenient to deal at this point with whether the provision of margin information (which was incorrect) could affect a conclusion as to the making of the alleged bidding agreement.
Now later conduct can inform the question as to whether the bidding agreement was made at an earlier point in time. The ACCC has alleged that the bidding agreement was made between 13 and 27 May 2011. Prysmian and Rexel Electrical contend that the provision of incorrect margin information is inconsistent with the bidding agreement asserted. I agree. A number of observations can be made.
As Prysmian contends, the first Alderson affidavit at [66] says nothing about bids by either Rexel Electrical to Caltex or Prysmian to Caltex. That paragraph is directed to the price that Prysmian could offer to Rexel Electrical. It contains no undertaking by Prysmian to bid to Caltex at any particular price nor any acceptance by Rexel Electrical of any such undertaking. Further, as Prysmian contends, the asserted statements by Shroff are unilateral statements. The alleged statements by Shroff had little commercial significance on their own. Unless Shroff had a capacity to know what price Rexel Electrical would bid, he could not offer such an assurance. In order for any such statement to form part of a relevant consensus, there would need to have been a commitment from Rexel Electrical to provide its tender price to Prysmian beforehand. But Alderson’s evidence did not establish any agreement on his part to provide the Rexel Electrical price.
Further, it was Neary who determined what margin information was to be provided and instructed Alderson to provide it. But it is apparent that Neary had no intention of providing to Prysmian (or Alderson for that matter), information as to Rexel Electrical’s proposed true margin.
Further, the provision of incorrect margin information in response to the Shroff statement was in one sense inconsistent with the reaching of a consensus for the purpose of ensuring that the Prysmian direct bid was more than the Rexel Electrical direct bid. Prysmian could lodge a direct bid a fraction above the Rexel Electrical incorrect margin, but this would not ensure that the Prysmian direct bid would be above the true Rexel Electrical margin and therefore the Rexel Electrical direct bid.
Third, the evidence of Alderson in relation to the “for your eyes only” email was that the function of Shroff sending him a copy of the direct Prysmian bid was that Shroff was assuring Alderson that Prysmian had given Rexel Electrical, as preferred customer, a good price. Alderson said under cross-examination:
And by seeing what bid he had done directly, that confirmed that he could be trusted when he’s told you that he’s going to give you a good price, didn’t it?--- I think that's what he was trying to establish, yes.
Fourth, the ACCC has placed emphasis upon the email from Shroff to Alderson of 16 June 2011 in which Shroff stated: “[d]o let me know how we sit so that we can submit the quote by latest 1pm. tomorrow”. The ACCC says that the reference to “sit” is a reference to how the Prysmian quote “sits” vis-à-vis the Rexel Electrical quote. But I agree with Prysmian that the ACCC has failed to understand the commercial context.
Prysmian was concerned that a bid with its own cables should succeed over a bid from its competitors, Olex and General Cable. Prysmian wanted to win the business of supplying Caltex with cables for the project. In that context, on one view it was of secondary importance to Prysmian as to whether its winning bid was a direct bid or a bid through Rexel Electrical as either way it would be supplying Prysmian cable. To the extent that it had a preference, Prysmian’s preference was to supply through Rexel Electrical as Rexel Electrical had the existing relationship with Caltex. Moreover, a bid through Rexel Electrical would involve Rexel Electrical rather than Prysmian taking on the management of the contract and the associated costs.
Now the ACCC has argued that such a position, even if accepted, is not relevant to the legal test under s 44ZZRD(3)(c)(ii). It is said that the relevant inquiry is whether a (substantial) purpose of the provision in the pleaded arrangement or understanding is that one of the bids is more likely to be successful than the other. It is said that the fact that Prysmian’s overall commercial objective was to win the business of supplying cable to Caltex is beside the point. Its preference was to win the business through Rexel Electrical’s bid. It is said that the arrangement or understanding between Alderson and Shroff included a provision to give effect to that preference and so accordingly, Rexel Electrical and Prysmian contravened s 44ZZRD(3)(c)(ii). The ACCC accepts that no doubt, the bidding agreement occurred in a wider commercial context, namely, the overall desire by Prysmian to win the business of supplying Caltex with cables for the project, as well as Prysmian’s desire to maintain a good relationship with its significant wholesale customer, Rexel Electrical. But it is said that this commercial context does not strictly address the question of whether a contravention occurred.
Now all of this may be so, but in relation to the 16 June 2011 email, at this point I am dealing with its commercial context. The context was the following. On 8 June 2011, Caltex sought some “clarifications” in respect of the technical documents submitted as part of the Prysmian bids of 30 May 2011 (both direct and through Rexel Electrical). One of the clarifications changed the cost to Prysmian of sourcing the cable to meet the Caltex specification. This was pointed out to Rexel Electrical. On 14 June 2011, Shroff sent an email to Alderson, which provides context to the subsequent 16 June 2011 email. The 14 June 2011 email stated:
Can you please advise me what technical specification our competitors had offered particularly with the screen fault level and the position of the lead sheath (under or over the screen wires), have got the revised offer from Prysmian Malaysia and the pricing to Rexel [Electrical] has gone up to a total value of $1.23 million which I am concerned could put us out of the ballpark if their screen rating is already at 10.1kA per 1 sec. against what we originally worked out as 5.6kA.
Rexel Electrical was dealing with all three cable manufacturers. Shroff was seeking to understand whether his competitors would also have to revise their prices upwards, or whether this issue would only affect Prysmian and thus potentially cost Prysmian the business. Alderson did not respond by telling Shroff how Prysmian’s pricing or technical specifications compared to the other manufacturers. Therefore, Shroff repeated his request in the email of 16 June 2011. That email attached a copy of the technical response to the revised (or clarified) technical specifications, together with a draft quote to Caltex, and then said: “Do let me know how we sit so that we can submit the quote by latest 1 pm. tomorrow”. I agree with Prysmian’s submission that Shroff wanted to know how Prysmian was sitting against the other manufacturers. If he knew this, he could consider whether he needed to modify the Prysmian quotations whether direct or through Rexel Electrical. Prysmian wanted to win the business and this objective was reinforced by the next sentence of the email, which said:
I believe we do need to make sure that the Rexel bid with our cables is around 4-5% cheaper than the next best price they get.
Accordingly, the subject of the email is about how Prysmian “sat” vis-à-vis Olex and General Cable, rather than how the Prysmian direct bid “sat” vis-à-vis the Rexel Electrical bid using Prysmian cable.
Further, when Shroff in his email said “Fingers crossed with this one, it will be a great win”, what seems to have been contemplated would be a “great win” would be for Prysmian to get the business instead of Olex or General Cable. That was consistent with Rexel Electrical’s internal email of 13 May 2011 at 1.23pm getting Alderson involved, which noted that it was “a great opportunity for Prysmian”. In my view, Shroff was not suggesting that there would be a “great win” if bid rigging conduct was successful and Prysmian and Rexel Electrical managed to increase the bid price to Caltex by removing competitive tension. Prysmian was in competition with Olex and General Cable for the business. The real competition in the bidding process was between Prysmian and the other cable manufacturers, Olex and General Cable.
Now I agree with the ACCC that strictly a direct bid by Prysmian is treated for competition law purposes as distinct from, and as competing with, a bid made by Rexel Electrical, notwithstanding that Prysmian may have been supplying the product in Rexel Electrical’s bid. The bid rigging prohibition contains a carve-out for vertical supply relationships. It applies where the conduct falls within s 47 of the Act (see s 44ZZRS). But the conduct alleged against Prysmian and Rexel Electrical does not fall within the s 47 carve out and there is no other carve out for vertical supply situations. But even accepting all of this does not detract from the force of Prysmian’s submission concerning the commercial context of these emails and how they are to be construed in that light, which is a different emphasis.
Finally, Prysmian submitted that the competition condition required by s 44ZZRD(1)(b) was not satisfied. It contended that the Rexel Electrical/Prysmian bid was dependent on Prysmian agreeing to supply the particular type of cable specifically required for the bid. But Prysmian was not obliged to make an offer to Rexel Electrical. Prysmian had an interest in selling the cable required for the Caltex bid. But Prysmian was entitled to maximise its chances of succeeding by bidding directly. So, it is said that Prysmian had an interest in the Rexel Electrical/Prysmian bid as much as it had an interest in its direct bid. Accordingly, so it is said, Prysmian was not competing by its direct bid with Rexel Electrical’s Rexel Electrical/Prysmian bid. It is said that this would involve the proposition that Prysmian was competing with itself. It is said that there was competition between a wholesaler such as Rexel Electrical and an end-user such as Caltex to secure the best offer from Prysmian. But Prysmian did not regard Rexel Electrical as its competitor in the relevant tender evaluation form. I reject these submissions. In my view, both Prysmian for its direct bid and Rexel Electrical for its bid (using Prysmian cable) were competing for the supply to Caltex. And that is how the acquirer of the cable would have so perceived the matter. Moreover, there was strictly price competition vis-à-vis Caltex reflected in their different margins and costs structures; further, there were non-cable inputs into the costing of bids.
(g) Bidding provision - change in ACCC’s case
The ACCC submitted that the purpose of Alderson telling Shroff the acceptable margin to Rexel Electrical for cable supplied by Prysmian for on-sale to Caltex was that each of Prysmian and Rexel Electrical would bid, and that Shroff would have the information required to ensure that Prysmian’s direct bid was higher than Rexel Electrical’s direct bid.
I am inclined to agree with Prysmian that the first time such a submission of the ACCC had been clearly advanced was in final submissions.
Prysmian submitted that it was contrary to the ACCC’s pleaded case to suggest that Alderson appeared to put forward from time to time that Prysmian would bid higher than the Rexel Electrical/Prysmian bid. Such an allegation was not pleaded and was not a case to which Prysmian submitted it had to respond or to provide evidence in response thereto. I agree.
Prysmian contended that the ACCC had abandoned its pleaded purpose of the alleged bid rigging agreement, namely of ensuring that the Rexel Electrical/Prysmian bid would be lower than the Prysmian bid. It says that as a result of the cross examination of Alderson, it became apparent that Rexel Electrical did not agree and could never have agreed to commit to putting in a bid lower than the Prysmian direct bid. It says that the Rexel Electrical/Caltex rebate precluded any such commitment. Prysmian argues that the existence of that rebate demonstrated that the ACCC’s unpleaded case, namely a purpose of ensuring that the Prysmian bid was higher than the Rexel Electrical/Prysmian bid, was a materially different case. It is said that there was no reference in the pleading to the specific conversations in the second Alderson affidavit which later became the “centrepiece” of the ACCC’s bid rigging case. In my view, these criticisms have some force.
Further, I would note that after the ACCC’s opening, the pleading point was taken by each of Prysmian and Rexel Electrical. No application to amend was made. And I accept that Prysmian chose not to call evidence based on the case as pleaded. Let me elaborate.
None of the pleadings or the two affidavits of Alderson indicated that the real alleged “central player” (as Prysmian described it) in the new bid rigging agreement was Neary. It was Neary who apparently directed Alderson to pass on incorrect margin information. I agree with the respondents that the pleadings did not alert either Prysmian or Rexel Electrical to his central significance.
Further and more generally, there is no pleading of an obligation that “Prysmian’s bid in response to the RFP would be higher than Rexel Electrical’s bid in response to the RFP”. And such a required pleading would not be the converse of the pleaded allegation. The existing pleading is an agreement that Rexel Electrical’s bid be less than the Prysmian direct bid. That necessarily required that Rexel Electrical be aware of the Prysmian bid and put no limits on the Prysmian bid. Contrastingly, the unpleaded allegation required that Prysmian be made aware of the Rexel Electrical bid in advance. There are no material facts pleaded to support any provision of such information or understanding.
In my view, the ACCC should not be permitted to pursue the unpleaded case.
But in any event, the unpleaded case would fail even if I had permitted it. First, Alderson’s evidence was that he was indifferent as to whether or not Prysmian would directly bid at all. Second, Alderson gave evidence that so far as he was concerned, Prysmian could bid at whatever price it wanted.
Moreover, there could not have been any such provision without some mechanism for its implementation. Without any means of pre-notification of the proposed Rexel Electrical/Prysmian bid, there could be no rational provision that the Prysmian direct bid would be higher or have the relevant purpose.
Alderson’s uncontested evidence is that he had no conversation with Shroff in which he told Shroff the amount of any proposed Rexel Electrical/Prysmian bid before it was put in. Moreover, Alderson was not the decision maker on the amount of any Rexel bid including any Rexel Electrical/Prysmian bid. That was Neary’s decision or his superiors. Moreover, Alderson was not even able to say that he had seen the amount of or was aware of the amount of any Rexel Electrical/Prysmian bid or other Rexel Electrical bid before it was lodged.
Now Alderson’s evidence was that he conveyed to Shroff a profit margin on the Prysmian quote to Rexel Electrical which Rexel Electrical considered “would be acceptable”. He said he recalled telling Shroff that the “acceptable margin … Rexel [Electrical] could accept was X per cent”. But he could not recall the precise margin.
Alderson said that he asked Neary “what he would accept as his minimum margin and he would have built that into his sales price”. He understood that it was the “minimum amount that Rexel would want”. His evidence was: “He told me the minimum margin he expected to make and I was asked to relay that on to Prysmian”.
Now although Alderson could not remember the precise margin that he obtained from Neary and conveyed to Shroff, the margin was less than the 8.5% margin referred to in the Cheadle email of 12 May 2011. But the Rexel Electrical/Prysmian 30 May 2011 bid of $1,248,511.90 reflected a margin of 14.16% on the Prysmian 30 May 2011 quote to Rexel Electrical of $1,093,655.00. But Neary never told Alderson a margin of 14.16% or anything like it. Alderson was surprised to learn under cross-examination for the first time that the actual margin was around this level. He agreed that if Neary had conveyed to him a margin which was much less than such a level with instructions to inform Shroff of that figure, conveying that margin to Prysmian would not give Prysmian an “accurate figure”. In response to the question: “… whatever Mr Neary’s reasons were, his reasons couldn’t have been to make sure that Prysmian came in at a higher bid than the Rexel bid?” Alderson said that he had “no idea what Mr Neary’s reasoning was”.
Accordingly, even accepting Alderson’s evidence, it amounts to him conveying to Shroff a single acceptable margin most likely less than 8.5% but certainly nothing like around 14%. In my view, conveying a margin of less than 8.5% is not significantly consistent with the existence of a provision with a purpose of ensuring that Prysmian bid at a higher price than the Rexel Electrical/Prysmian bid.
Similarly, the Rexel Electrical/Prysmian 17 June 2011 bid was $1,311,496.80. The 16 June 2011 quote from Prysmian to Rexel Electrical was $1,174,825.20. That represents a percentage margin on the Prysmian quote of 11.63%. Again that is a percentage margin well above the less than 8.5% said by Alderson to have been conveyed to Shroff. Similarly, the conveyance of such a low margin is not significantly consistent with the existence of a provision the purpose of which was to ensure that Prysmian bid higher than a Rexel Electrical/Prysmian bid.
I agree with Prysmian that it is not open on the evidence to conclude that Rexel Electrical provided Prysmian with the margin figure of 14.16% before Prysmian lodged its direct bid with Caltex on 17 June 2011. And if that assumption is made, the following arithmetic is interesting to observe. The Prysmian direct bid on 17 June 2011 was $1,325,830.00. A margin of 14.16% on the Prysmian draft quote to Rexel Electrical on 16 June 2011 of $1,174,825.20 produces a bid of around $1,341,180. On the arithmetic, Prysmian “undercut” the notional expected bid on the assumption, which is of course false, that Prysmian was aware of Rexel Electrical’s 14.16% margin.
More generally, to the extent that the purpose of any person at Rexel Electrical was relevant, Alderson’s purpose may arguably not be the relevant purpose. He was not a decision maker on the Rexel Electrical bid prices. And to the extent that the relevant person was Neary, the above evidence indicates that his purpose could not have been one which falls within the terms of s 44ZZRD(3)(c)(ii). First, there is no evidence that Alderson passed on to Neary the content of the proposed Prysmian bid. Alderson himself did not give that evidence. Further, there is no adverse inference to be drawn from Rexel Electrical’s failure to call Neary to respond to a speculative submission made towards the close of the trial. And in any event, Neary was not in Prysmian’s camp and so no adverse inference can be drawn against Prysmian in this respect. Second, Alderson never became aware of the 14.16% margin. The 14.16% margin was the margin on the 30 May 2011 bid. The margin was lower on the 17 June 2011 bid at around 11.63%. The effect of the ACCC’s submission is that Neary told Alderson a low margin to pass on to Shroff so Prysmian’s bid could be higher. But if it was Neary’s purpose to give Shroff information to ensure that the Prysmian bid was higher than the Rexel Electrical/Prysmian bid, there is no reason why, after the 30 May 2011 bid, he would not have told Alderson the change in margin to pass on to Shroff to ensure that Prysmian could bid above that margin. Yet that did not happen.
(h) Other bidders

Let me now deal with another matter. Prysmian has argued that where s 44ZZRD(3)(c)(ii) requires that “one of those bids is more likely to be successful than the others”, the “others” incorporates all bids made by the parties to the relevant arrangement or understanding. The other bids of Rexel Electrical included as at 30 May 2011 a Rexel Electrical/General Cable bid and a Rexel Electrical/Olex bid, and as at 17 June 2011 a Rexel Electrical/General Cable bid. There is no suggestion that the alleged bidding agreement encompassed the Rexel Electrical/General Cable bid of 17 June 2011 which was ultimately successful at $1,366,804.86 being a price higher than both the Rexel Electrical/Prysmian bid of $1,311,496.80 and the Prysmian direct bid of $1,325,830.00. Accordingly, so it is contended, because Rexel Electrical made other bids such as a Rexel Electrical/General Cable bid and a Rexel Electrical/Olex bid and these bids were not part of the arrangement, the proscribed purpose is not made out.
But in my view, this is an artificial limitation not required by the text or policy of the Act. Section 44ZZRD(3)(c)(ii) applies to “two more parties” to a contract, arrangement or understanding. The reference to “others” is intended to encompass the range of possibilities where multiple parties to the arrangement or understanding are bidding, rather than to permit bid rigging provided that the parties rig only some of the bids they submit, not all of them. Further, s 44ZZRD(3)(c)(ii) is directed at a “bid” being more successful than another bid, rather than one “party” being more successful than the other party.
It is said that the mischief targeted by the bid rigging provisions is the reduction in competition in the bidding process (see [1.40] of the explanatory memorandum to the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Cth)). Prysmian argued that the Rexel Electrical/Prysmian bid was the lowest bid and undercut the real competition, General Cable and Olex. Caltex chose a higher bid and was aware of the amount of the Prysmian direct bid. Prysmian says that this conduct is therefore not bid rigging. But this argument is without substance. There is nothing in the language of the Act, the underlying objective of the bid rigging prohibition or the explanatory memorandum that carves out an agreement between competitors as to whose bid is more likely to be successful on the basis that the tenderer is aware of the bids made to it and chooses a less attractive bid.
(i) Resale price maintenace
Prysmian has raised one other point that it is convenient to briefly address.
Rexel Electrical and Prysmian allege that s 44ZZRR(1)(c) is an answer to the ACCC’s pleaded case. Section 44ZZRR provides:
Resale price maintenance
(1)Sections 44ZZRF, 44ZZRG, 44ZZRJ and 44ZZRK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision relates to:
(a) conduct that contravenes section 48; or
(b)conduct that would contravene section 48 but for the operation of subsection 88(8A); or
(c)conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply.
Note:A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).
(2)A person who wishes to rely on subsection (1) in relation to a contravention of section 44ZZRJ or 44ZZRK bears an evidential burden in relation to that matter.
It is contended that even if the ACCC could prove its pleaded allegation, the effect of any such proof would be to satisfy the elements of s 44ZZRR(1)(c) insofar as Prysmian as the supplier to Rexel Electrical would have induced Rexel Electrical not to sell to Caltex at a price more than a specified price (s 96(3)(b)); or agreed to supply Rexel Electrical goods on terms that Rexel Electrical would not sell the goods to Caltex at more than a specified price (s 96(3)(c)); or Prysmian using in relation to goods supplied to Rexel Electrical a statement of price that is likely to be understood by Rexel Electrical as the price above which the goods are not to be sold to Caltex.
It is said that the alleged bidding agreement between Rexel Electrical and Prysmian cannot contravene ss 44ZZRJ or 44ZZRK because even if the ACCC could establish the alleged bidding agreement, it would amount to “maximum” resale price maintenance conduct within the meaning of s 44ZZRR(1)(c).
According to the ACCC’s alleged bidding agreement, Prysmian was obliged to make its quote to Rexel Electrical, and Rexel Electrical was obliged to make its price to Caltex with Prysmian’s cable, lower than Prysmian’s direct price to Caltex. It is said that this conduct constitutes maximum resale price maintenance, because it involves Prysmian inducing, or by agreement requiring, Rexel Electrical not to sell Prysmian cable to Caltex at a price higher than a price just below Prysmian’s direct price (see ss 96(3)(b) and 96(3)(c)), or using a statement of price that is likely to be understood by Rexel Electrical as the price above which its cable is not to be sold (s 96(3)(f)). It is said that the requirement that Rexel Electrical not price higher than a price just below Prysmian’s direct price is sufficient to constitute a “price specified” within the meaning of ss 96(3)(b) and 96(3)(c), because the specified price can be within a range of a particular figure, or an approximate figure, such as the supplier’s prices from time to time: Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd (No 2) (1980) 44 FLR 149 at 159 to 160; Trade Practices Commission v Penfolds Wines Pty Ltd (1991) 104 ALR 601 at 612.
But in my view, Prysmian’s and Rexel Electrical’s contention leads to perverse outcomes. If accepted, it would mean that manufacturers and suppliers could evade the intention of the Act to prohibit bid rigging by the particular price fixing mechanism they agree upon, for example, by agreeing that one party’s bid should not exceed a particular amount, rather than agreeing that the other party’s bid should be greater than a certain amount. The rationale for allowing maximum resale price maintenance, which is that it can be pro-competitive and consumer welfare enhancing for a supplier to prevent distributors reselling its product above a certain price, cannot apply to a bid rigging scenario where the outcome is not lower prices for consumers but rather an intentionally uncompetitive price offered to the acquirer. The legislature cannot have so intended in relation to s 44ZZRR(1)(c).
Further, I also agree with the ACCC that the carve out in s 44ZZRR(1)(c) does not apply because the corollary of the pleaded provision (Rexel Electrical’s bid price to be lower than Prysmian’s direct bid) is that the parties also agreed that Prysmian’s direct bid price would be higher than Rexel Electrical’s bid price. So, it is implicit in the pleaded allegation that the parties agreed that Prysmian’s direct bid price would not be less than Rexel Electrical’s bid price. Accordingly, even if the carve out was to apply to a provision of a bid rigging agreement that related to the maximum price one of the parties would bid, it would not apply to a provision that related to the minimum price that the other party would bid.
Prysmian also argues that the ACCC’s “unpleaded” allegation is answered by s 44ZZRR(1)(c) in any event. I do not need to address this.
In my view, Prysmian’s and Rexel Electrical’s reliance on s 44ZZRR(1)(c) is artificial and should be rejected.
(j) Summary
In summary, the ACCC’s bid rigging case fails.
First, it was a matter for Prysmian as to whether it made a direct bid and in what amount. It was not obliged to do so. Likewise it was up to Rexel Electrical as to whether it made a bid and in what amount.
Second, Alderson did not give any direct evidence that there was a contract, arrangement or understanding even to bid.
Third, the ACCC’s case depended upon acceptance of Alderson’s evidence of a conversation with Shroff as deposed in paragraph [3] of his second affidavit, rather than the form he recalled in oral evidence and further, the proposition that there could be no explanation for providing a margin figure other than the existence of a bid rigging arrangement. As to the first point, I accept Alderson’s oral evidence. As to the second point, it is incorrect for the reasons that I have already dealt with.
Fourth, the reason for Prysmian providing a copy of the Prysmian direct bid and the “for your eyes only” email, was so that Prysmian could demonstrate that Rexel Electrical was getting a good price. This is inconsistent with the ACCC’s theory. The ACCC submitted that if it was directed to demonstrating that Rexel Electrical was getting a good price, there would be no reason to provide this information before the event because it could be demonstrated after the event. But I agree with the respondents that that point goes nowhere. There is likewise no reason why it could not be provided before the event, or both before and after. Further, as to the use of the words “for your eyes only” in both the email and the response, Prysmian would not want its direct bid to Caltex to have been disclosed to its competitors or to other wholesalers and likewise Rexel Electrical did not want its bid disclosed to others.
Fifth, if a margin figure was to be provided to Prysmian for the purpose of bid rigging to ensure that the Prysmian bid was higher, it would make no sense to provide the wrong margin figure. The ACCC has sought to dismiss the point by saying that the contravention is in the agreement, and a failure to give proper effect to the agreement does not matter. But I agree with the respondents that this misses the point. Rexel Electrical’s conduct would be very surprising if there was a bid rigging arrangement as alleged. It would undermine the efficacy of the arrangement. Rexel Electrical’s conduct in relation to the margin supports the non-existence of any bid rigging arrangement. At the least, I am not confident in drawing an inference that there was a bid rigging agreement.
Finally, I agree with the respondents that the alleged bid rigging arrangement makes little commercial sense in the light of the significant competition from Olex and General Cable. Rexel Electrical and Prysmian between them could not effectively rig any bid. The alternative rationale put by the ACCC of Prysmian trying to avoid annoyance to Rexel Electrical that would be caused by undercutting Rexel Electrical evaporates once it is appreciated that the previous incident upon which the ACCC has based its case on motive was not an incident about Prysmian undercutting Rexel Electrical’s bid. Rather it was about Prysmian undercutting its own bid to Rexel Electrical.
(k) Giving effect to the bidding agreement
As the ACCC’s case fails as to the existence of the bidding agreement as pleaded, its giving effect to case necessarily fails for lack of a foundation.
M. CONCLUSION
I have not sustained any part of the ACCC’s originating application. Accordingly, its application must be dismissed. I also see no good reason why costs should not follow the event.

I certify that the preceding eight hundred (800) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.
Associate:
Dated: 9 March 2017

SCHEDULE OF PARTIES

VID 725 of 2014
JOHN LLYR LEWIS ROBERTS
Fourth Respondent
REXEL ELECTRICAL SUPPLIES PTY LTD (ACN 000 437 758)
Fifth Respondent
AUSTRALIAN REGIONAL WHOLESALERS PTY LTD (ACN 011 009 064)
Sixth Respondent
GUY PICKEN
Seventh Respondent
LAWRENCE & HANSON GROUP PTY LTD (ACN 080 350 812)
Eighth Respondent
ROBIN NORRIS
Ninth Respondent
BRIAN ALEXANDER WEBB
Tenth Respondent
LAURENCE THOMAS MURPHY
Eleventh Respondent
ELECTRICAL WHOLESALERS ASSOCIATION OF AUSTRALIA LTD (ACN 064 644 300)
Twelfth Respondent

File number:	VID 725 of 2014
Judge:	BEACH J
Date of judgment:	9 March 2017
Catchwords:	COMPETITION – controlling supply – market sharing – price fixing – whether there was an arrangement or understanding which contained a cartel provision – whether parties reached the necessary commitment that gave rise to an arrangement or understanding – whether there was a proscribed purpose to control supply, allocate the market and/or fix prices – whether there was an exclusionary provision for the purposes of s 4D of the Competition and Consumer Act 2010 (Cth) – whether the respondents were “in competition with each other” – consideration of no case submission – circumstantial evidence – exclusive dealing “anti-overlap” defence – collective acquisition defence – no contravention of the prohibition on cartel conduct – application dismissed COMPETITION – bid rigging – whether there was an arrangement or understanding which contained a bid rigging provision – whether there was a change in the pleaded case in relation to the characterisation of the bidding provision – whether the relevant purpose is in relation to a successful “bid” or successful “party” – resale price maintenance “anti-overlap” defence – no contravention of the prohibition on cartel conduct – application dismissed
Legislation:	Competition and Consumer Act 2010 (Cth) ss 4, 4C, 4D, 4F, 44ZZRB, 44ZZRD, 44ZZRJ, 44ZZRK, 44ZZRR, 44ZZRS, 44ZZRV, 45, 47, 96 Evidence Act 1995 (Cth) s 140(2)
Cases cited:	Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344; [2010] FCA 17 Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) (1999) 92 FCR 375 Australian Competition and Consumer Commission v Flight Centre Travel Group Pty Ltd (2016) 339 ALR 242; [2016] HCA 49 Australian Competition and Consumer Commission v IMB Group Pty Ltd (in liq) [2002] FCA 402 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) 141 FCR 183 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 Australian Competition and Consumer Commission v TF Woollam & Son Pty Ltd (2011) 196 FCR 212 BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268 Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd (1986) 162 CLR 395 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Jones v Dunkel (1959) 101 CLR 298 Jones v Great Western Railway Co (1931) 144 LT 194 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 Norcast S.ár.L v Bradken Ltd (No 2) (2013) 219 FCR 14 Paul Dainty Corporation Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495 R v Associated Northern Collieries (1911) 14 CLR 387 Re Queensland Co-operative Milling Association Ltd (1976) 8 ALR 481 Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Seven Network Limited v News Limited (2009) 182 FCR 160 Siegwerk Australia Pty Ltd (In liq) v Nuplex Industries (Aust) Pty Ltd (2016) 334 ALR 443; [2016] FCA 158 South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611; [2000] FCA 1541 Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd (No 2) (1980) 44 FLR 149 Trade Practices Commission v Email Ltd (1980) 43 FLR 383 Trade Practices Commission v Penfolds Wines Pty Ltd (1991) 104 ALR 601
Dates of hearing:	24, 25, 26, 27, 30 November 2015, 1, 2, 3, 4, 7, 9, 10, 11 December 2015, 11, 12 February 2016
Date of last submissions:	4 March 2016
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Economic Regulator, Competition and Access
Category:	Catchwords
Number of paragraphs:	800
Counsel for the Applicant:	Mr P W Collinson QC with Mr A J McClelland QC, Mr A D Barraclough and Ms C E M Exell
Solicitor for the Applicant:	Webb Henderson
Counsel for the First and Second Respondents:	Mr M H O’Bryan QC with Mr N P De Young
Solicitor for the First and Second Respondents:	Herbert Smith Freehills
Counsel for the Third and Fourth Respondents:	Mr A J L Bannon SC with Mr J B Spinak
Solicitor for the Third and Fourth Respondents:	Johnson Winter & Slattery
Counsel for the Fifth and Sixth Respondents:	Mr C A Moore SC with Dr J A Watson
Solicitor for the Fifth and Sixth Respondents:	Herbert Smith Freehills
Counsel for the Seventh Respondent:	Mr C M Archibald
Solicitor for the Seventh Respondent:	Horton Rhodes
Counsel for the Eighth Respondent:	Mr N J O’Bryan SC with Mr A M Bell
Solicitor for the Eighth Respondent:	Maddocks
Counsel for the Ninth Respondent:	Mr M I Borsky
Solicitor for the Ninth Respondent:	Corrs Chambers Westgarth
Counsel for the Tenth and Eleventh Respondents:	Mr M S Goldblatt
Solicitor for the Tenth and Eleventh Respondents:	Rodgers Barnes & Green
Counsel for the Twelfth Respondent:	The Twelfth Respondent did not appear