Australian Competition and Consumer Commission v Delta Building Automation Pty Ltd

Counsel for the Respondents: Mr C Bannan and Mr A Vial

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant

AND: DELTA BUILDING AUTOMATION PTY LTD First Respondent

order made by: BROMWICH J DATE OF ORDER: 1 August 2023

1. The parties confer and within 14 days, or such longer time as may be allowed, submit agreed or competing draft orders as to: (a) declarations of contravention; and, separately (b) procedural orders for the conduct of the remedies phase of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Table of Contents Introduction [1] The key entities and people [11] Background [12] Relevant provisions of the CCA [29] Legal principles from the case law [38] The witnesses [72] Mr McEvilly and LES [73] Mr Davis and Delta [78] Mr Mitton and Manteena [85] Mr Nugraha [89] Mr Peter Hart [93] Affidavit witnesses not called to give oral evidence [94] Agreed facts and the resolution of some of the contested facts and issues [95] Delta, LES and competition between them to supply BMS in the ACT [97] The NGA and its BMS arrangements [112] Manteena Pty Ltd and the unchallenged evidence of Mr Mitton as to the tender process [115] Events from 31 July 2019 to 30 November 2019 [131] Events of December 2019 [199] Events of January 2020 onwards [213] List of issues [234] Findings on the remaining and key facts and issues in dispute [235] What was said during the telephone conversation between Mr Davis and Mr McEvilly on 17 December 2019 [235] Whether, by the time of the meeting on 18 December 2019 between Mr Davis and Mr McEvilly, Mr Davis considered it necessary or desirable to engage with LES in relation to the BMS upgrade [254] What Mr Davis' purposes were in organising the 18 December 2019 meeting [254] Whether, by the time of the meeting on 18 December 2019 between Mr Davis and Mr McEvilly, it was likely that the BMS upgrade would be put out to competitive tender, or that more than two parties would be invited to bid [279] Whether by the time of the meeting on 18 December 2019 between Mr Davis and Mr McEvilly, Delta and Mr Davis expected that the BMS upgrade would be put out to competitive tender, or that more than two parties would be invited to bid. [279] What was said during the 18 December 2019 meeting between Mr Davis and Mr McEvilly by each of those men, and what, if any, implied representations were made by Mr Davis [328] Mr McEvilly's affidavit evidence in chief [331] Mr Davis' affidavit evidence in chief [335] Key similarities in the affidavit evidence in chief of Mr McEvilly and of Mr Davis as to the 18 December 2019 meeting [338] Isolating the key differences in the affidavit evidence in chief of Mr McEvilly and of Mr Davis as to the 18 December meeting [356] Mr McEvilly's evidence in cross-examination [358] Mr Davis' evidence in cross-examination [378] Mr McEvilly's account prevails [384] Timing of the 18 December 2019 meeting [386] Whether or not, at the 18 December 2019 meeting, Mr Davis impliedly offered to make a payment to Mr McEvilly or LES if: [391] (a) LES agreed not to submit a bid for the BMS upgrade tender; or [391] (b) LES agreed to submit an uncompetitive bid for the BMS upgrade tender; or [391] (c) LES agreed to submit a bid for the BMS upgrade tender at a price in excess of Delta's bid or on terms that would otherwise make Delta's bid more likely to be successful than LES' bid. [391] Whether, at the 18 December 2019 meeting, Mr Davis: [402] (a) sought from Mr McEvilly any commitment to act in a particular way, or to maintain a particular state of affairs [402] (b) proposed that either LES or Delta assume an obligation, or give an assurance that it would act in a particular way [402] Whether Mr Davis' conduct at the 18 December 2019 meeting was a step immediately connected to the commission of the alleged contravention of s 45AJ by Delta, or an affirmative and positive act directed towards inducing LES to make the alleged arrangement or to reach the alleged understanding [409] Whether the common law of attempt, insofar as it is applicable to an allegation of civil attempt under s 76(1)(b) or (d) of the Competition and Consumer Act 2010 (Cth) (CCA), contemplates not only use of the proximity test (conduct that is more than merely preparatory), but also the equivocality test (conduct having no reasonable purpose other than the commission of the alleged contravention) [412] Whether, at the 18 December 2019 meeting, Mr Davis intended to make an arrangement or arrive at an understanding on behalf of Delta with LES, or to induce LES to make such an arrangement or arrive at such an understanding with Delta, as alleged by the ACCC [417] If so, whether Mr Davis intended to make the alleged arrangement or understanding with a cartel provision within the meaning of s 45AD of the CCA because the relevant provision: [417] (a) had the purpose of ensuring that, in the event of a request for bids for the Original NGA BMS upgrade tender: [417] (i) Delta would bid for the BMS upgrade tender but LES would not, within the meaning of s 45AD(3)(c)(i); and/or [417] (ii) Delta and LES would both bid for the BMS upgrade tender, but on the basis that Delta's bid was more likely to be successful within the meaning of s 45AD(3)(c)(ii); and/or [417] (iii) Delta and LES would both bid for the BMS upgrade tender and proceed with their bids, but on the basis that Delta's bid was more likely to be successful within the meaning of s 45AD(3)(c)(iv); and/or [417] (b) had the purpose of preventing, restricting or limiting the supply or likely supply of services to be provided by LES to the NGA within the meaning of s 45AD(3)(a)(iii) of the CCA; and/or [417] (c) had the purpose, effect or likely effect of fixing or controlling, or providing for the fixing or controlling, of the price of the BMS services supplied by Delta and/or LES to the NGA within the meaning of s 45AD(2)(c) of the CCA. [417] Conclusion [427]

Introduction 1 This is a liability adjudication on allegations by the Australian Competition and Consumer Commission (ACCC) of attempted bid rigging, and attempted inducement of bid rigging. The attempts are alleged to have been directed to a tender for a contract to supply a replacement building management system (BMS) for the original part of the building housing the National Gallery of Australia (NGA) in Canberra. That work is referred to in these reasons as the BMS upgrade or the Honeywell BMS upgrade. 2 The contravening conduct is alleged to have taken place during a brief meeting over coffee on 18 December 2019 between representatives of two competing companies. One of the two companies is the first respondent, Delta Building Automation Pty Ltd, a BMS company operating in Canberra. The second respondent is Mr Timothy (Tim) Davis, the sole director and managing director of Delta. The other company is Logical Electrical Solutions Pty Ltd (LES), also operating in Canberra. The key witness for the ACCC is Mr Antony (Tony) McEvilly, the general manager of LES. 3 In December 2019, both Delta and LES held contracts to perform BMS work at the NGA: (a) Delta to maintain the BMS that was due to be replaced; and (b) LES to maintain the BMS for the adjacent NGA extension building. There was going to be a need for some degree of integration, or some kind of interface, between the new BMS and the continuing BMS, when the former was installed. There is a dispute as to the extent of difficulty that might entail. 4 On the morning of Wednesday, 18 December 2019, Mr Davis and Mr McEvilly had a relatively brief meeting at a coffee shop not far from Canberra Airport. The meeting had been called by Mr Davis via a telephone call to Mr McEvilly on either Monday, 16 December 2019, or Tuesday, 17 December 2019. I conclude that the call took place the day before the meeting, on 17 December, rather than 16 December. Nothing turns on this difference. 5 The ACCC alleges that during the 18 December 2019 meeting: (a) each of Mr Davis, and Delta via Mr Davis, attempted to induce LES to make an arrangement or arrive at an understanding containing a cartel provision, in contravention of s 45AJ of the Competition and Consumer Act 2010 (Cth) (CCA); (b) additionally or alternatively, Delta via Mr Davis attempted to make an arrangement or arrive at an understanding containing a cartel provision, in contravention of s 45AJ of the CCA. 6 The respondents deny any wrongdoing. Mr Davis elected to waive penalty privilege after the close of the ACCC's case and to advance a positive evidentiary case for the respondents by way of a detailed affidavit, upon which he was cross-examined. 7 The respondents accept that the evidence establishes that Delta and LES were in competition with one another in the BMS industry in Canberra, and that Mr Davis acted on behalf of and with the authority of Delta. This sensible concession, reflective of the cooperative stance taken by the respondents in confining the trial to the real issues in dispute, is made in circumstances where Delta and LES were plainly competitors in relation to the BMS upgrade contract. Further, Mr Davis and Mr McEvilly via their companies (or a predecessor of LES with Mr McEvilly as its directing mind) had previously competed for BMS tenders in the ACT twice before the NGA BMS upgrade tender, namely the High Court of Australia tender in 2013 and the National Library tender in 2019. 8 The case largely turns on the fundamentally conflicting evidence of Mr McEvilly and Mr Davis, both as to what took place at the 18 December 2019 meeting, but also as to conversations and events prior to that. The competing cases, and especially the ACCC case, also rely upon the context for that meeting provided by the balance of the evidence, both contested and uncontested. 9 The ACCC seeks: (a) declarations of contravention by both Delta and Mr Davis; (b) the imposition of pecuniary penalties upon both of them; (c) injunctions restraining both of them from directly or indirectly communicating to competitors or potential competitors in relation to building management system tenders in the Australian Capital Territory (ACT) for three years; (d) the disqualification of Mr Davis from managing a corporation for three years; and (e) Delta being required to establish, administer and comply with a trade practice compliance program for three years. The parties sensibly sought a separate trial on liability first. 10 These are the conclusions I have reached on liability: (a) The purpose of a 17 December 2019 telephone call from Mr Davis to Mr McEvilly was to arrange a meeting to discuss the upcoming BMS upgrade tender at the NGA. (b) The purpose of Mr Davis organising the 18 December 2019 meeting was to endeavour to rig any tender bid process between the two likely tenderers, Delta and LES. (c) The evidence of Mr McEvilly as to what transpired during the critical conversation about the BMS upgrade tender at the 18 December 2019 meeting was more credible in all the circumstances than the version advanced by Mr Davis. I accept Mr McEvilly's version over that of Mr Davis. (d) At the 18 December 2019 meeting, Mr Davis was proposing that LES not be a genuine competitor in the BMS upgrade tender. (e) Mr Davis took both the necessary steps immediately connected to the commission of the alleged contraventions of s 45AJ by Delta, and an affirmative and positive act directed towards making, and inducing LES to make, the alleged arrangement or to reach the alleged understanding. As such, I have concluded that the declarations of contravention sought by the ACCC should be made. The reasons as to the conclusions I have reached above are as follows.

The key entities and people 11 This is a narrative-based case that relies heavily on events leading up to and after the 18 December 2019 meeting between Mr Davis and Mr McEvilly. To aid in following the fact-finding process, the following is a list of the key entities and people involved in 2019: Delta (Delta Building Automation Pty Ltd) Timothy (Tim) Dixon Davis, director Hendra Nugraha, engineering manager Ron Atkinson, account manager Glenn Davis (Sid), construction manager (also Mr Davis' brother) Craig Davis, national services manager Adrian Middleton, service manager Jason Wilcomes, project engineer LES (Logical Electrical Solutions Pty Ltd) Anthony (Tony) John McEvilly, general manager Karen McEvilly, sole director and shareholder NGA (National Gallery of Australia) Mr Nicholas (Nick) Xirakis, head of capital works Mr Mark Mandy, head of building services Mr Matthew Hanns, facilities manager Ms Amelia Gregory, facilities manager Ms Aimee Dagseven, project officer Manteena (Manteena Pty Ltd) Mr Rodney Trent (Rod) Mitton, project director Ms Sarah Burrows, senior project manager Mr Jason Bills, design/services manager Mr Paul Cresswell, project manager Steensen Varming (Steensen Varming (Australia) Pty Ltd) Mr Tava Sitauti, principal project delivery consultant C&E (Control and Electric Pty Ltd) Mr Peter Robert Hart, director Mr Mark Wright, estimator

Background 12 A BMS may be described generally as a computer-based system installed in buildings to control and monitor their internal environment. This includes their mechanical, electrical and other equipment and systems, covering such things as ventilation, air conditioning, lighting, lifts, closed-circuit television (CCTV), electricity and other utility services, fire systems, and security systems. 13 A BMS therefore consists of computer software, computer hardware, other hardware, and specialised equipment, including cabling, alarms, sensors, monitors, and other devices. A BMS is typically used in large commercial or government buildings. 14 Delta was in 2019, and still was at the time of trial and closing submissions, the exclusive ACT distributer of the "Delta Controls" brand of BMS. As noted above, Mr Davis is the sole director and managing director of Delta. 15 LES was in 2019, and still was at the time of trial and closing submissions, the exclusive ACT supplier of the Automated Logic Corporation (ALC) brand of BMS, otherwise known in the industry as Web Control, stylised as WebCTRL, being the name of the software the ALC BMS uses. As noted above, Mr McEvilly is the general manager of LES, with his wife, Karen McEvilly, as the sole shareholder and director of LES. 16 Delta and LES were in 2019 and 2020, and still were at the time of trial and closing submissions, companies that conduct businesses which include the design, installation and maintenance of BMS. They, along with other BMS companies, were in competition in the BMS market in the ACT. 17 The NGA comprises an original building, the construction of which was completed in 1982 (Original NGA) and an extension built between 2007 and 2010 (NGA Extension). In the period up to and including 2019 and 2020: (a) The Original NGA was served by a BMS developed by Honeywell Limited (Honeywell BMS). The Honeywell BMS was maintained by Honeywell until about October 2019, when Delta was given a 12-month maintenance contract to maintain that BMS (the formal signed contract came later in November). (b) The NGA Extension was served by an Automated Logic Corporation (ALC) BMS, installed by a predecessor company to LES, also associated with Mr McEvilly, in about 2007. In 2019 and 2020 in particular the NGA Extension BMS was maintained by LES. 18 By 2019, the Honeywell BMS for the Original NGA had reached the end of its life. This was known by Mr Davis and Mr McEvilly and thus by their respective companies. 19 In the period prior to 2019, a decision was made by the NGA to replace the Honeywell BMS, which was always going to be a valuable and prestigious contract. This is the BMS upgrade or Honeywell BMS upgrade referred to earlier in these reasons. No change was in contemplation for the ALC BMS for the NGA Extension, serviced and maintained by LES. That is, at all times the proposed BMS upgrade was to be confined to the Original NGA. 20 Delta and LES were in competition in relation to any contract that would be granted to perform the BMS upgrade, and thus in relation to any tender that might issue for that purpose. Both companies submitted bids for the tender that issued in 2020, after the contraventions alleged to have taken place on 18 December 2019. Neither was successful. 21 As at late 2019, both Delta and LES were companies capable of performing the BMS upgrade, and both were contracted to do other work at the NGA: (a) Delta was contracted to carry out the maintenance of the Honeywell BMS; and (b) LES was contracted to maintain the NGA Extension BMS. Objectively speaking, they were the two companies potentially best placed to tender successfully for the BMS upgrade to replace the Honeywell BMS in the Original NGA. 22 However, it was anticipated that a new BMS for the Original NGA and the existing and continuing BMS for the NGA Extension would need to be integrated, or made to interface, in some way. These two concepts are separate from each other. As explained by Mr Davis, integration involves connecting two or more BMSs to function as a single system, while interfacing involves the exchange of information and data between different BMSs. Both approaches can be combined to create a unified interface, eliminating the need for users to log into separate systems. The likely nature and extent of that need is a live issue in the proceeding. Another contested issue is whether it was ever, to the knowledge of Mr Davis and therefore Delta, the situation that the Original NGA BMS upgrade could be contracted directly to Delta or if it would always be subject to a tender process. If it is the latter, the nature and extent of the tender process, whether it be limited or closed, rather than open and competitive, is also in question. 23 A further live issue is the impact and effect that the continuation of the NGA Extension BMS would have on the tender for the BMS upgrade in the Original NGA, especially as to the cost of integration between the two BMSs, and any need for involvement by LES in that integration. In short, the ACCC case is that the cost of integration or an interface between the two BMSs was always going to be insignificant in the context of the overall upgrade and the need for LES involvement, if any, was very limited. The contrary case for the respondents was that both that cost and that need for LES involvement was, or at least might have been at the time of the 18 December 2019 meeting and in the mind of Mr Davis, more substantial. 24 The substance of the ACCC's case can be briefly summarised as follows, drawn from its closing written submissions and supplemented by closing oral submissions. The ACCC allege that: (a) in the period from early August 2019 to 2 December 2019, the respondents at least believed the NGA would be likely to engage Delta to undertake the BMS upgrade without a competitive tender taking place (the ACCC cast this as being viewed by the respondents as having a greater degree of certainty during that period, but this characterisation will suffice in light of the observations at [309] below which refer to Mr Davis' evidence to the effect that he thought it was at least possible that there would be no tender process); (b) the respondents took steps to price the work it was proposing to do for the BMS upgrade, and were able to do so without contacting Mr McEvilly or LES; (c) the belief that a competitive tender would not be needed was "shattered" on 2 December 2019, when the respondents learned that the NGA had determined that they would put the BMS upgrade out to a formal competitive tender, and that the two tenderers would be Delta and LES; (d) on 16 or 17 December 2019, Mr Davis telephoned Mr McEvilly and arranged to meet with him to discuss the tender, before the BMS upgrade tender was formally announced or issued; (e) the meeting took place on 18 December 2019 at Tulips Café at Pialligo, Canberra; (f) at the 18 December 2019 meeting, by his express words and by implication, Mr Davis and thereby Delta offered to make a payment to Mr McEvilly or to LES, if LES agreed: (i) not to submit a bid for the tender; or (ii) to submit an uncompetitive bid for the tender; or (iii) to submit a bid for the tender on terms that would make Delta's bid more likely to be successful than LES's bid, going well beyond merely preparatory conduct, and with there being no plausible exculpatory explanation for arranging a meeting with a competitor; (g) by doing so: (i) the respondents each attempted to induce LES to enter into an arrangement, or to reach an understanding, containing a cartel provision; and (ii) Delta attempted to make such an arrangement, or reach such an understanding, in contravention of s 45AJ of the CCA. 25 The ACCC's alternative case, casting the alleged cartel provision in two additional different ways, is that Mr Davis was attempting to make, and induce LES to make, an arrangement or understanding: (a) that would prevent LES supplying services to the NGA by way of upgrading the Original NGA BMS; or (b) whereby LES would agree to tender at a "cover price", which would have the purpose or likely effect of fixing or controlling the price of the Original NGA BMS upgrade. 26 The beginning of the respondents' closing written submissions identifies the core, but not only, arguments advanced as to why they contend the ACCC's case should fail. In short, and noting that the ACCC takes exception to each of them, they are to the effect that: (a) the ACCC had not even attempted to discharge the onus of proving that the respondents intended, and engaged in conduct, to bring about an arrangement or understanding with the necessary features of a consensus or meeting of the minds, a commitment to act in a particular way or to maintain a particular state of affairs, and at least one party assuming an obligation or giving an assurance or undertaking to behave in a particular way - this is principally a dispute about the metes and bounds of what well-established authority requires be proven for the alleged attempt contraventions; (b) the evidence in any event falls well short of satisfying the conduct element of the alleged attempt contraventions, and at worst still fell short of anything immediately connected to any arrangement or understanding, also relying on Mr McEvilly's evidence in cross-examination about what was conveyed to him as amounting to no more than speculation, a submission that requires a close focus on the questions asked; (c) the position as to the intention element was even weaker when regard was had to Mr Davis's evidence as to his reasons for attending the meeting to the effect that, rather than those asserted by the ACCC, he instead wanted to "clear the air" with Mr McEvilly, arising out of a heated telephone conversation between the two men on 9 October 2019 about Delta personnel being present at the NGA in order to smooth the way for LES to perform any integration work between the two NGA BMS sets of equipment, and to assert that the NGA was not LES's "turf" (or "site") - going so far as to submit that unless the Court finds that Mr Davis was lying about the reasons he gave for attending the meeting, the necessary intention cannot be proven; (d) Mr Davis's evidence should be accepted, especially having regard to what is characterised as the inadequate and unrealistic cross-examination of him; (e) Mr McEvilly's evidence should be treated with caution, because, although he does not need to be found to have lied, he wished to inflict as much damage as he could upon the respondents because of the adverse view he took as to how they had been favourably treated by the NGA, and because he had wanted to go public with his allegations. 27 After closing oral submissions, a significant gulf between the parties remained. The points of disagreement are profound and have been difficult to resolve. A major part of that disagreement concerns: (a) differences as to the characterisation and understanding of the oral evidence of Mr McEvilly and Mr Davis, especially in cross-examination; (b) the nature and extent of evidence that was required to prove the alleged attempts; and (c) whether the evidence adduced by the ACCC went far enough, having regard to established authority as to what was required to be proved. 28 The competing accounts about the key conversation at the 18 December 2019 meeting, and prior telephone conversations, especially on 9 October 2019, are irreconcilable, such that the ACCC can only succeed if the account given by Mr McEvilly is accepted and preferred over that of Mr Davis.

Relevant provisions of the CCA 29 The relevant provisions of the CCA in relation to attempted bid rigging or inducement into a contract, arrangement or understanding containing a cartel provision are undisputed between the parties. 30 Section 76 of the CCA relevantly provides (emphasis added): (1) If the Court is satisfied that a person: … (b) has attempted to contravene such a provision [being a provision mentioned in sub-section (a), which includes a provision of Part IV]; or … (d) has induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision [being a provision mentioned in sub-section (a), which includes a provision of Part IV]; … … , the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the Court determines to be appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part or Part XIB to have engaged in any similar conduct. 31 Section 45AJ of the CCA provides: A corporation contravenes this section if: (a) the corporation makes a contract or arrangement, or arrives at an understating; and (b) the contract, arrangement or understanding contains a cartel provision. 32 Section 45AD identifies what constitutes the cartel provisions proscribed by s 45AJ: (a) s 45AD(1) provides that a provision of a contract, arrangement or understanding is considered a cartel provision if it meets either the "purpose/effect condition" or the "purpose condition" in subsection (3) and the "competition condition" in subsection (4). (b) s 45AD(2) relevantly provides: The purpose/effect condition is satisfied if the provision has the purpose, or has or likely to have the effect, of directly or indirectly: (a) fixing, controlling or maintaining; … the price for … (c) goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; … (c) s 45AD(3) relevantly provides: The purpose condition is satisfied if the provision has the purpose of directly or indirectly: (a) preventing, restricting or limiting: … (iii) the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or … (c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services: (i) one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or (ii) 2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; … (iv) 2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; … (d) s 45AD(4) describes the "competition condition" referred to in s 45AD(1), but does not need to be reproduced because there is no dispute that this condition is met on the evidence. 33 The ACCC's factual propositions outlined above at [24] (and in the alternative at [25]) can be framed by reference to the cartel provision that is alleged to be the subject of the alleged attempt and inducement. In combination with the now undisputed satisfaction of the competition condition in s 45AD(4), the cartel provision is alleged: (a) primarily by reference to any of the purpose conditions in s 45AD(3)(c)(i), (ii) or (iv); or (b) in the first alternative by reference to the purpose condition in s 45AD(3)(a)(iii); or (c) in the second alternative by reference to the purpose/effect condition in s 45AD(2)(a) and (c). 34 The ACCC's case is that the arrangement or understanding would have involved, if entered into as allegedly sought by Mr Davis, any of the following five modes of implementation, styled by the ACCC as being one of a limited number of ways in which the arrangement or understanding could occur, each involving a cartel arrangement or understanding: (a) a provision of the kind in s 45AD(3)(c)(i), namely that LES would not submit a bid for the BMS upgrade tender; or (b) a provision of the kind in s 45AD(3)(c)(ii), namely that Delta and LES would both bid on the basis that Delta's bid would be more likely to be successful; or (c) a provision of the kind in s 45AD(3)(c)(iv), namely that Delta and LES would both bid and proceed with their bids, on the basis that Delta's bid would be more likely to be successful; or (d) a provision of the kind in s 45AD(3)(a)(iii), namely that it would prevent LES from supplying services to the NGA by way of upgrading the Original NGA BMS; or (e) a provision of the kind in s 45AD(2)(a) and (c), namely that LES would agree to tender at a "cover price", which would have the purpose or likely effect of fixing or controlling the price of the Original NGA BMS upgrade. 35 An important aspect of the ACCC's case is that the precise mode of implementation did not have to be agreed or understood at the attempt stage. On its case, whatever mechanism Mr Davis may ultimately have favoured in seeking the arrangement or understanding with LES, it would have contained a cartel provision. 36 The respondents' case, although principally one of denial that the conversation deposed to by Mr McEvilly took place at all, is that even if it did take place, the evidence did not go far enough to constitute either of the attempts alleged. 37 These statutory elements have been the subject of judicial analysis, which will be explored in greater detail below.

Legal principles from the case law 38 As already noted, the ACCC alleges that Mr Davis and Delta (via Mr Davis), each attempted to induce LES to make an agreement, or arrive at an understanding containing a cartel provision, contrary to s 45AJ of the CCA. Further and in the alternative, the ACCC alleges that Delta (via Mr Davis) attempted to make an arrangement or reach an understanding that contained a cartel provision, also contrary to s 45AJ of the CCA. 39 The legal principles that apply are generally agreed upon, but there is a substantial dispute about their application, especially as to what is required to prove the alleged attempts, which leaches into the extent of the real agreement. The respondents, in their closing written submissions, analysed numerous cases applying the principles pertaining to attempts to make or induce an arrangement or understanding, which I have considered. However, I found that reasoning by factual analogy was of limited assistance. Prior cases and their inevitably factual circumstances principally assist in identifying and understanding the principles, and only to a lesser extent help with the application of those principles to the present circumstances. 40 It is convenient to commence with the legal principles which seem to be agreed. It is uncontroversial between the parties that, in both paras (b) and (d) of s 76(1), an attempt has two elements, namely, conduct and intention: Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 (also 76 FLR 455), referred to and approved by the Full Court in Australian Competition and Consumer Commission v Australian Egg Corporation Ltd [2017] FCAFC 152; 254 FCR 311 at [92] per Besanko, Foster and Yates JJ, reproduced below at [42]. 41 The relevant intention contrary to s 45AJ that must be established is an intention to bring about the proscribed result, in this case, the making of an arrangement or the reaching of an understanding containing a cartel provision: Tubemakers at 735-736 per Toohey J, cited with approval by the Full Court in Egg Corporation at [92]. That intention will suffice even if the proscribed result would be impossible to achieve: Tubemakers at 736. 42 The Full Court in Egg Corporation succinctly set out many of the key principles applicable to this case: [92] In order to establish an attempt, an applicant must prove both intention and conduct. The intention is to bring about the proscribed result which in this case is the making of an arrangement or the reaching of an understanding … (Trade Practices Commission v Tubemakers of Australia Ltd (1983) 76 FLR 455; 47 ALR 719 (Tubemakers) at 472-473; 737 and 479; 743 per Toohey J). It is not necessary in order to establish the relevant intention to prove that it was accompanied by or included an expectation of success or a belief that the purpose would be achieved (Tubemakers at 471-472; 736 per Toohey J). [93] The conduct which is necessary to constitute an attempt is a step towards the commission of a contravention, which is immediately and not merely remotely connected with it (Tubemakers at 472; 736 per Toohey J referring to Archbold's Pleading Evidence & Practice 36th [Ed], para 4101). The Full Court of this Court in Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 7 FCR 534 (Parkfield Operations) at 538-539 made a similar point when it said that an attempt must involve taking a step towards the commission of contravening conduct and that it is not sufficient that it be merely remotely connected or preparatory to the commission of it. In Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2002] ATPR 41-877 (ACCC v SIP Australia) at 45-015, Goldberg J made the point that what is required for an inducement is that "there be an affirmative or positive act or course of conduct directed to the person who is said to be the object of the inducement". In addition to that point, his Honour also referred to the decision of the Full Court of this Court in Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 at 164 where it was said that mere persuasion, with no promise or threat, may well be an attempt to induce. [94] For the purposes of both elements of an attempt, that is to say intention and conduct, it is not necessary for the precise terms of the proposed arrangement or understanding to have been formulated. This point was made by the Full Court in Parkfield Operations (at 539) and another way of putting the point is that it is not necessary for an attempt to be made out to establish that the relevant conduct had reached an advanced stage. Having said this, it is perhaps trite to note that the more advanced the conduct, the more likely it is that the inference of the necessary intention will be drawn. [95] In order for there to be an arrangement or understanding …, there must be a meeting of minds and this involves a commitment to act in a particular way. A mere expectation as distinct from an assumption of obligation, assurance or undertaking to act in a particular way is not sufficient. Unlike an arrangement, an understanding can be tacit (Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375 (CC Pty Ltd) at [135]-[141] per Lindgren J; Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45]-[47]; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 at [28]-[39] per Gray J). [96] For some time, there has been a debate in the authorities as to whether a meeting of minds involving only one party assuming an obligation as distinct from mutual or reciprocal obligations can constitute an arrangement or understanding of a proscribed kind. The issue has not been authoritatively determined. The courts which have addressed the issue have consistently said that even if the undertaking of a unilateral obligation can constitute a contravening arrangement or understanding, such cases are likely to be rare (see, for example, Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 (Service Station Association) at 230-231 per Lockhart J, at 238 per Spender and Lee JJ; CC (NSW) Pty Ltd at [139] per Lindgren J). For reasons which we will give, it will not be necessary for us to resolve the issue in this case. 43 After this judgment was reserved, O'Bryan J handed down Australian Competition and Consumer Commission v BlueScope Steel Limited (No 5) [2022] FCA 1475. The parties directed my attention to this keenly awaited decision soon after it was delivered and after I had considered it, but as is conventional did not indicate any particular passage that either side relied upon. I have read BlueScope Steel carefully, and in particular Part C ([72]-[183]), in which his Honour addresses the legal principles applicable to that case, which largely, but not entirely, mirror those applicable to this proceeding, and key parts of the application of those principles to the substantially different factual circumstances of that case. In particular, I adopt these as useful statements of principle on the topics of the conduct element in the context of the attempt provision in s 76(1)(b) of the CCA ([86]-[97]), the corresponding intention element ([98]-[99]), the purpose of a cartel provision ([110]-[112]) and the effect of a cartel provision ([113]-[114]). 44 O'Bryan J in BlueScope Steel at [101]-[108] provided a more detailed explanation of the meaning of the terms "arrangement" or "understanding" than I have found generally necessary. However, at [108] his Honour concluded with the pithy observation about a concluded arrangement or understanding as relevant to the intention element for an attempt or attempt to induce that state of affairs, which I gratefully adopt: A meeting of minds as to a course of conduct to be followed by one or more persons cannot arise unless those persons have communicated their assent to adopting that course of conduct. It is important to emphasise, though, that in the context of an understanding containing an unlawful cartel provision, the assumption of an obligation means no more than the communication of assent to a particular course of conduct proposed by a competitor, where the communication may be by words or conduct. Language of obligation, commonly used in the law of contract, should not obscure the nature of an understanding and the means and circumstances in which it may be arrived at. 45 The above observation is of particular importance in assessing the question of what the evidence establishes about the conversation between Mr Davis and Mr McEvilly at their coffee shop meeting on 18 December 2019, and in particular whether that evidence went far enough on the intention element for the alleged attempts. The importance emerges in large measure because the respondents in BlueScope Steel, in common with the respondents in this proceeding, asserted that the evidence did not go far enough, even if Mr McEvilly's account of that conversation was accepted, on the concept of commitment and the related concepts as addressed by O'Bryan J at [142]-[148] in the abstract, and at [1420]-[1422] in their application. The following statements of principle in relation to concluded arrangements or understandings as relevant to the intention element for an attempt are particularly apposite to this proceeding, noting that the ACCC's primary case here concerned bid rigging rather than price fixing: [144] As to the conduct element of an attempt to induce, in my view a person may be found to have attempted to induce a counterparty to reach a price fixing understanding notwithstanding that the person never expressly asked the counterparty for a commitment with respect to the counterparty's prices. The respondents' submission to the contrary has a number of difficulties: it seeks to frame the applicable legal principles in a narrow and rigid manner and also has the effect of substituting the word "commitment" in place of the word "understanding" in the Act. [145] As discussed above, there has been considerable judicial explication of the words "arrangement" and "understanding" as used in the Act. Reducing those words to the single notion of a "commitment", however that might be conceived, is an erroneous reduction in legal principle. The statutory words have a broader meaning. They require that the parties have, by words or conduct, aroused an expectation in each that they will conduct themselves in accordance with the subject matter of the arrangement or understanding. The expectation must be more than a mere hope, belief or prediction that, as a matter of fact, a person will conduct themselves in the future in a particular way. The expectation must arise out of the dealings between the parties which has resulted in what can alternatively be called the assumption of an obligation, the giving of an assurance or undertaking, or a meeting of minds, that they will act in the future in a particular way. While an arrangement is well described in terms of undertaking obligations or duties, albeit not legally enforceable, an understanding is more aptly described as arriving at a common mind (or consensus) as to a particular course to be followed. Conduct which founds an understanding can be arrived at by words or conduct and may be tacit. Further, as an arrangement or understanding is not binding on the parties in law, the parties are inevitably free to withdraw from it and act inconsistently with it, notwithstanding their consent to it. [146] It follows from the judicial explication of the concept of an "understanding" that there is no requirement in law for one of the parties to have expressly sought a commitment from the other party to assume some obligation. An understanding may be reached through a course of dealings between the parties that makes clear the desired outcome and through which a meeting of minds on pursuing the outcome is achieved. A course of dealings between parties is capable of arousing an expectation in each party that they will conduct themselves in accordance with the communicated outcome. [147] It necessarily follows that an attempt to reach a price fixing understanding within s 76(1)(b) does not require, as a matter of law, that the relevant person has expressly sought a commitment from a competitor to price in a particular way. There are other ways in which a price fixing understanding may be brought about. That conclusion is even stronger in the case of inducing or attempting to induce a person to reach a price fixing understanding within s 76(1)(d). An inducement ordinarily refers to some proffered advantage or disadvantage, promised or threatened, which will follow if the object of the inducement adopts or fails to adopt a stipulated course of action. Mere persuasion, with no promise or threat, may also constitute an attempt to induce. It is not possible to define in any rigid or narrow manner the categories or types of conduct that may constitute inducing or attempting to induce a person to reach a price fixing understanding within s 76(1)(d). The conduct may involve a course of meetings, communications and other dealings in which inducements are proposed or offered and which are directed at reaching a consensus, or a meeting of minds, about the level of prices to be charged by one or more of the parties. It can be accepted that, for a consensus or meeting of minds to be finally arrived at, there must be some communication or indication of assent from one party to the other whether by words or by conduct. However, an attempt to induce a person to reach a price fixing understanding does not require assent to be achieved; it requires a step towards the inducement of the understanding which is more than merely preparatory and which is immediately and not merely remotely connected with the inducement to reach the understanding. It should also be reiterated that, in the context of an attempt and an attempt to induce, it is not necessary for the conduct to have reached an advanced stage or for the precise terms of the proposed understanding to have been formulated. [148] As to the intention element of an attempt to induce, a person may only be found to have attempted to induce a counterparty to reach a price fixing understanding if the person intended, by their conduct, to take steps which were directed at inducing the counterparty to reach the understanding. In other words, it is necessary that the understanding be in contemplation and be the intended outcome of the attempt to induce. It is not sufficient for the person to merely intend that the counterparty reflect on the prices they are charging. The intention must be directed to the ultimate end of reaching an understanding. Again, though, the use of the word "commitment" in that context is unduly limiting. The intention must be to induce the counterparty to reach an understanding, which requires a consensus or meeting of minds about acting in accordance with the subject of the understanding. It is sufficient that, by the acts that constitute the attempt to induce, the person offers promises or threats or otherwise engages in persuasive conduct that is intended to induce a consensus, however the ultimate assent may be communicated. 46 When considering the Egg Corporation case both at first instance and on appeal, it is important to appreciate that the ACCC's case at trial failed on intention as to all five respondents, not on conduct (although there was a dispute at the appeal about what was found about the conduct of three of the respondents): see the Full Court at [74]-[75] and [84]-[85] (in the context of [82]-[83]); see also the reasons of the primary judge, White J, in Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2016] FCA 69; 337 ALR 573 (Egg Corporation trial judgment or Egg Corporation White J judgment) at [403]. By notices of contention, the respondents sought to overturn the findings made as to conduct. The Full Court at [137]-[138] addressed and rejected a submission by the respondents to the ACCC appeal on those notices of contention that the absence of a concrete proposal by way of an arrangement or understanding was fatal to establishing the element of intention, specifically endorsing the Egg Corporation White J judgment at [78] and [81] as to the statements of principle, and [394] as to their application. 47 Those paragraphs in the Egg Corporation White J judgment as to that part of the ACCC's case that succeeded are particularly relevant to the present case and warrant reproduction of the most relevant passages of those paragraphs, adding also [79]: [78] In those cases in which the ACCC alleges that an arrangement or understanding had been reached, there must be evidence of a meeting of minds between the parties under which at least one of them assumes an obligation or undertakes to act in a certain way. However, in the case of an alleged attempt, what must be established, relevantly, is that the respondents engaged in conduct (took a step towards) inducing others to reach an agreement or understanding that at least one or more would limit their production or supply. Liability under s 76(1)(b) is established if the respondent engaged in conduct directed towards inducing another to reach an agreement or understanding which has the proscribed qualities. Section 76(1)(d) will be engaged if a respondent has engaged in the requisite conduct with the particular intention, even if the form of the proposed agreement or understanding is unparticularised, undeveloped and inchoate. It is not necessary for the ACCC to establish in addition that the agreement or understanding was to take a particular form or to have a particular content or would involve, as in this case, only particular egg producers. [79] The approach just outlined is supported by the reasons of the Full Court in Parkfield Operations at 539-40: Finally, his Honour thought that there could be no attempt to induce XL to make an arrangement of the kind alleged if there was no arrangement which was in place or could readily be effected. He thought that the evidence established no more than that there was an invitation "to start to see if an arrangement can be made". We do not think that it was necessary for any arrangement to be in place, or readily able to be effected, with the other retailers. It was sufficient that the respondents sought to persuade XL to enter into an arrangement to increase prices. As was said in Yorke v Lucas (1983) 49 ALR 672 at 681 (affirmed by the High Court, (1985) 59 ALJR 776): "Inducing a contravention in the context of s 75B(b) connotes, in our view, some act of compulsion by force or threat of force or some act of persuasion or stimulation aimed at ensuring that an act is committed which constitutes a contravention. The word 'incite' is akin to 'induce', though induce probably covers a wider field." We therefore cannot agree with the reasons which led his Honour to the conclusion that the Commission had not established a case against the respondents. [80] … [81] I accept however, the submission of Mr Doyle SC, counsel for AECL and Mr Kellaway, that the uncertain and general nature of the putative arrangement makes the pinpointing of conduct or words referrable to such an arrangement difficult, and that account should be taken of this in the assessment of the evidence. … [394] It is true that an attempt to induce a contravention … does not require that a single form of action be proposed. … 48 Applying by analogy the passage from Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 7 FCR 534 quoted by White J above, to the ACCC's primary case of an attempted inducement, it needed to establish that Mr Davis (and through him, Delta), sought to persuade Mr McEvilly to enter into an arrangement, or to reach an understanding, to rig the BMS tender. As his Honour observed at [78], endorsed by the Full Court, it was not necessary for the ACCC to establish that the agreement or understanding in contemplation was to take a particular form or to have a particular content. That said, the absence of any allegation as to the precise form of the alleged intended arrangement or understanding may make it more difficult to be satisfied that this was what was sought: Egg Corporation at [83], in the final point aspect of White J's reasoning on intention as summarised by the Full Court at the end of that paragraph. In the case of bid rigging, the available options for a proposed arrangement or understanding may, as a practical matter, be more limited, going some way to alleviating this barrier to a finding of the necessary corresponding intention. 49 The Full Court in Egg Corporation at [95] was referring to what is required to prove that an arrangement has been made, or an understanding arrived at, including tacitly - that is, in the event of the attempt succeeding - whereas at [94] the Full Court is referring to the antecedent stage of an attempt to achieve either outcome. It necessarily follows that proving an attempt does not require establishing a meeting of minds, nor as part of that any kind of commitment being given. An attempt by one person directed to another is, by its very nature, unilateral, but must involve more than preparatory steps to achieve the proscribed objective. It is common ground in this case that there must be sufficient proximity between the conduct and the commission of the contravention. There remains a dispute as to how far the ACCC's case needed to go, which is addressed later in this segment, in the context of the following paragraph and what it means in practical terms. 50 It is important to maintain a distinction between the attempts alleged, and the alleged object of those attempts. The ACCC accepts, and indeed submits, that in the case of an attempt or inducement to contravene s 45AJ of the CCA, there are two additional requirements that must be met: (a) First, it must be demonstrated that the relevant attempt was to induce a person to enter into, in this case, an "arrangement or understanding" (a contract not being alleged) within the meaning of s 45AJ, noting again as per the above that neither the conduct nor the intention requires precise terms to have been formulated: Egg Corporation at [94]. By reference to what constitutes an arrangement or understanding, per Egg Corporation at [95], this requires that there was an attempt to induce a "meeting of the minds" and "a commitment to act in a particular way". At least one party must, if the attempt were to succeed, "assume an obligation" (whether legal or moral in nature) to act in a certain way: J Wisbey & Associates Pty Ltd v UBS AG [2021] FCA 36 per Beach J at [125]. (b) Second, it must be demonstrated that the relevant arrangement or understanding would contain a cartel provision within the meaning of s 45AD of the CCA. This, in turn, requires consideration of two further requirements: (i) whether a provision of the relevant arrangement or understanding would contain a provision satisfying either the "purpose/effect condition" in s 45AD(2) or the "purpose condition" in s 45AD(3); and (ii) whether two or more parties to the arrangement or understanding satisfied the "competition condition" in s 45AD(4). 51 The purpose/effect condition and the purpose condition are set out above at [32] and are addressed in more detail later in these reasons. 52 The "competition condition" in s 45AD(4) relevantly requires that the two or more parties involved in the arrangement or understanding are, or are likely to be, in competition with each other in the supply of the services in question. The ACCC submits that general competition meets this requirement, even in circumstances where LES and Delta were not competing for the BMS Upgrade Tender in particular, citing the Full Court case of J McPhee & Sons (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365; 172 ALR 532 at [111]-[112] (Black CJ, Lee and Goldberg JJ). However, as already noted, the respondents accept that the competition condition is satisfied, and I am satisfied that is so on the evidence. 53 I now turn to a key area of dispute at the level of principle, to be applied to the facts as found. It is convenient to address this at a relatively early stage in these reasons because of its importance to the fact-finding exercise that follows. The issue is jointly posed as follows: Does the common law of attempt, insofar as it is applicable to an allegation of civil attempt under s 76(1)(b) or (d) of the Competition and Consumer Act 2010 (Cth) (CCA), contemplate not only use of the proximity test (conduct that is more than merely preparatory), but also the equivocality test (conduct having no reasonable purpose other than the commission of the alleged contravention)? 54 The ACCC contends that the answer is "no"; while the respondents contend that the answer is "yes". For the reasons that follow, there is no equivocality test to be applied, and accordingly the answer is "no". 55 The principle sought to be applied is drawn by analogy from the criminal law. Considerable caution must be exercised before importing criminal law concepts too readily or uncritically into civil proceedings, even civil penalty proceedings, for reasons identified in relation to civil penalty proceedings generally: see Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (Agreed Penalties Case) at [51]-[57] and Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 399 ALR 599 at [14]. A key reason for that caution is that the standard of proof in criminal proceedings means that when circumstantial evidence is relied upon, especially to prove state of mind, the prosecutor must exclude all reasonable explanations consistent with innocence: Shepherd v The Queen (1990) 170 CLR 573. That is an aspect of proof beyond reasonable doubt in criminal proceedings, which has no analogue in relation to the civil standard of the balance of probabilities, even when serious allegations require evidence to be of a sufficient quality to support any adverse conclusion reached: s 140(2) of the Evidence Act 1995 (Cth), the statutory version of Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 361-362. 56 In a civil case, the combination of circumstances relied upon must do no more than raise "a more probable inference in favour of what is alleged": see Shepherd per Mason CJ at 576 and per Dawson J at 581 (with whom Toohey and Gaudron JJ agreed), explaining a passage from Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 536 containing that phrase without adverse comment. The unquoted, but footnoted, source of that phrase in Chamberlain is Luxton v Vines (1952) 85 CLR 352 at 358, where Dixon, Fullagar and Kitto JJ quoted from the following passage in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5 (emphasis added to identify the phrase): Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley (1911) AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at p 678. 57 It follows that the starting point is that the exclusion of alternative explanations forms no part of any civil law requirement for reaching the necessary state of satisfaction on the balance of probabilities, even if it might be analytically deployed as a process of reasoning. Although common, this is not a rule of law even in relation to jury directions in criminal cases and is sometimes not appropriate in such a case: Shepherd per Mason CJ at 575 and per Dawson J at 578. As Dawson J pointed out, while a direction of that kind is customarily given to a jury in circumstantial evidence cases, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt, such that in some cases such a direction may be confusing rather than helpful. Even in criminal proceedings, it is only the elements of an offence that must be proven beyond reasonable doubt, each fact relied upon to support the proof of that element need not be proven to that standard unless indispensable to the finding of guilt. Of course, sometimes a non-element component of a criminal case may need to be proven beyond reasonable doubt, such as identification. 58 Given the strong background of fundamental principles against the existence of a principle of equivocality in a civil case, it was for the respondents to demonstrate a reason why that should be departed from in any civil case, and particularly in a case such as this. It will not suffice to refer to such a rule applying in criminal cases where that is not, in any event, so clearly entrenched as a rule of law. That is, it was not for the ACCC to show that a principle of equivocality did not apply, but rather for the respondents to show that it did. 59 The respondents rely upon Toohey J, when his Honour was a member of this Court, in an express aside from the question of intention by addressing conduct (actus reas), dispelling the notion that an expectation of success was necessary for an attempt to be established. As part of that reasoning, his Honour quoted in Tubemakers at p 736 the following passage from Archbold's Pleading Evidence & Practice (36th ed): … the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime. 60 The respondents contend that this passage plainly contemplates the use of both a proximity test and an equivocality test. Quite apart from the fact that this is a reference to the requirements in criminal proceedings being used by analogy to address a different issue, I am unable to accept that, read in context, this has anything to say about equivocality at all. Nor does Toohey J's later reference at p 743 to purpose or effect in relation to the issue of substantially lessening competition assist. Similarly, the Full Court in Parkfield Operations at pp 538-9 quoting this part of Tubemakers was concerned with proximity, and not any novel notion of equivocality foreign to the ordinary concepts and principles of civil law, and in particular the civil standard of proof. 61 The respondents suggest that in Egg Corporation, both White J at [387]-[388], and the Full Court in upholding those passages at [109]-[111], was also endorsing an unstated principle of equivocality. In keeping with what the Full Court actually said, I am unable to accept that White J was doing any such thing. Rather, his Honour was referring to innocent explanations for facts upon which the ACCC relied to draw adverse inferences as to what was taking place for the purpose of making a decision on whether the necessary intention corresponding to the proven conduct had also been proven, which is a very different exercise even if it bears a superficial similarity. It is the difference between an analytical tool and a legal requirement. 62 White J found that the understanding that the ACCC placed on certain phrases that had been used in the context of a meeting between competitors was not supported because of other innocent inferences that could reasonably be drawn on the question of intention. That was clearly enough a reference to the ordinary processes of inferential fact finding for state of mind as to whether the necessary state of satisfaction had been reached, not requiring the ACCC to exclude innocent explanations as a precondition to reaching the requisite state of satisfaction. 63 As the Full Court observed at [110], this was no more than an exercise by White J in correctly applying the civil standard of proof in the first place, expressly rejecting the submission recorded at [109] that his Honour's approach was one of asking whether there were explanations consistent with innocence, so as to be applying the criminal standard of proof. It is plain enough that had the Full Court found that White J had been applying any test akin to the equivocality test advanced by the respondents, that would have been found to be an error because it would have entailed applying the wrong standard of proof. That way of reading the Full Court's reasons is supported by the earlier passage in Egg Corporation at [93], reproduced above at [42], where the references to Tubemakers and Parkfield Operations are clearly directed only to proximity. 64 There is a material difference in principle between on the one hand evaluating evidence and forming a view as to whether or not the evidence establishes an alleged contravention on the balance of probabilities, and on the other hand ascertaining whether that standard has not been met because some competing possibility consistent with there being no contravention has not been excluded. The latter involves a reasoning process in criminal proceedings which can be a necessary part of the discharge of the onus of proving a case beyond reasonable doubt (ie, beyond the balance of probabilities), but which never arises in civil proceedings because that is not the ultimate burden of proof threshold required to be met. It follows that there is no basis, either on first principles or by authority, for the application of an equivocality test in relation to an alleged attempt in a civil penalty proceeding. For the same reason, there is no requirement, as suggested by the respondents, to apply some kind of test that the offer made by Mr Davis be found to be unambiguously directed to either of the two attempts, because that too implies the necessity of going beyond the threshold of the balance of probabilities. 65 The next major disagreement in principle between the parties turns on the distinction between what must be proven to establish that an arrangement has been made, or an understanding reached, and what must be proven to establish an attempt to induce that or an attempt to achieve that objective. As the ACCC points out in closing oral submissions, there is no dispute that an arrangement or understanding within the meaning of s 45AJ of the CCA requires a meeting of the minds and a commitment to act in a particular way, nor any dispute that such an arrangement or understanding requires that at least one party assumes an obligation, whether legal or moral in nature, to act in a particular way. The dispute turns on how granular the identification of the proposed arrangement or understanding must be by the evidence when an attempt is alleged. 66 Omitting the errant references to equivocality, the respondents contend that a person cannot be liable for an attempt to make, or an attempt to induce, an arrangement or understanding unless they engage in conduct immediately or proximately connected and directed to securing: (a) a consensus or meeting of the minds; (b) a commitment to act in a particular way or the maintain a particular state of affairs; (c) the assumption of obligations, assurances or undertakings, coupled with an intention to bring about that specific result. The respondents maintain that the ACCC's submissions failed to consider these factors because the evidence does not support an affirmative answer to any of the factors, let alone all of them. 67 In applying those principles in closing oral submissions, the respondents gave content to this requirement by suggesting that it was not sufficient for a person to appreciate that the natural and probable consequence of their conduct is a completed contravention; they must have intended to bring about a specific result; and they must have had a subjective intention to bring about each of the essential elements of the contravention alleged to have been attempted. An attempt, they submit, requires the critical features of an arrangement or understanding to be sought, being an intention, with proximate acts, to bring about an arrangement with the features of a commitment and obligation. The key issue in dispute is how far the ACCC's case needed to go on the question of commitment on the conduct element. 68 This is put somewhat evocatively in closing oral submissions for the respondents as whether it was proven, as said to be required, that Mr Davis wanted an arrangement whereby he would be able to say to Mr McEvilly in due course something like "What on earth are you doing?" We had a deal that you weren't going to put in a bid". This submission was evidently directed to the manner in which the bid rigging would be proposed to be implemented, and therefore equally applying to the alternative options for implementation identified by the ACCC of a bid being put in by LES which was either higher than the Delta bid, such as by a cover price, or that was in some other way inferior to Delta's bid. To the extent that this is a submission that the precise mechanism by which any proposed arrangement or understanding to induce bid rigging had to be identified, as opposed to such identification making the case stronger, it cannot be accepted in light of the reasoning of both White J and the Full Court in Egg Corporation considered above. However, this still leaves for determination just how detailed the identification must be shown to be, at this stage dealing with the applicable principles. 69 The ACCCs' contrary submission is that the propositions of law summarised above do not mean that an attempt to contravene s 45AJ of the CCA, or to induce such a contravention, will only be made out where the conduct has progressed to the point where a commitment has been expressly sought. That is because a distinction must be drawn between the intention element and the conduct element. To establish the intention element, it is necessary to prove an intention that an arrangement or understanding involving a meeting of the minds, a commitment, and an assumption of obligations would ultimately be reached, but in order to prove the conduct element it is not necessary to prove that the conduct actually reached the stage at which a commitment was sought. The ACCC submits this is supported by Egg Corporation at [93], with the Full Court quoting with approval the observations of Goldberg J in Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2002] FCA 824; ATPR 41-877 at [112] that what is required for an inducement is that "there be an affirmative or positive act or course of conduct directed to the person who is said to be the object of the inducement", and (quoting from Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 at 164) that "mere persuasion, with no promise or threat, may well be an attempt to induce". The ACCC also notes that the respondents' suggestion that Heating Centre be treated with caution because it is a resale price maintenance case belies its endorsement in Egg Corporation at [93]. 70 The ACCC submits that this then leads into the statement of principle in Egg Corporation at [94], and especially the first sentence, that for both intention and conduct, "it is not necessary for the precise terms of the proposed arrangement or understanding to have been formulated". Further, at [137], the Full Court expressly endorsed the observation by White J at [78] that s 76(1)(d) of the CCA "will be engaged if a respondent has engaged in the requisite conduct with the particular intention, even if the form of the proposed agreement or understanding is unparticularised, undeveloped and inchoate". In reliance upon these statements of principle, the ACCC submits that it is not necessary for the conduct to have reached the stage that a specific commitment has been sought in order for the conduct element, or an attempt to induce a contravention of s 45AJ, to be established. 71 The ACCC's submission must be accepted, relying as it does upon the binding authority of the Full Court in Egg Corporation. The relevant test for the conduct element is whether a sufficient step was taken in all the circumstances to take it beyond being merely preparatory. An attempt does not require that the substantive contravention has almost taken place. Of course, if all that Mr McEvilly needed to do was assent to what was proposed in order for the inducement to have been effective, the arrangement to have been made, or the understanding to have been reached, then the threshold for an attempt will comfortably have been surpassed.

The witnesses 72 I made notes of my perception of the four witnesses who gave oral testimony at the time it was given or soon afterwards, mostly in cross-examination on their affidavits, and recorded much of the following observations as the evidence progressed, supplemented by reading the transcript.

Mr McEvilly and LES 73 Mr McEvilly has been a licensed electrician since about 1982. He has worked as an electrical contractor for almost 40 years, specialising in mechanical electrical services. He formed his own company in about 1984, until it was purchased in about 1987. He then worked for the purchaser for about 18 months, until he left to start up another business, which was later incorporated in 2004 as Electrical Solutions (ACT) Pty Ltd. That business provided services relating to the design and installation of electrical and control systems, which later progressed to BMS work in around 1991 in the ACT and surrounding areas, prior to incorporation in 2004. Mr McEvilly was the sole director of Electrical Solutions (ACT). 74 Electrical Solutions (ACT) went into liquidation on the petition of the Deputy Commissioner of Taxation in this Court in March 2019. This took place following a request made on its behalf to reduce the rate at which tax debts were required to be repaid. A liquidator was appointed on 31 May 2019. On Mr McEvilly's evidence in cross-examination, which was not challenged and which I accept, that tax debt situation in turn was reached by reason of a major project running seriously over the allotted time and causing substantial losses. Mr McEvilly was keen not to cause losses to customers or to have employees losing any entitlements, so, with the benefit of insolvency advice, in April 2019 he set up a new company to buy the assets of Electrical Solutions (ACT) and to assume responsibility for accrued employee entitlements. That new company was LES. Mr McEvilly has been the General Manager of LES since May 2019. His wife is the sole shareholder and sole director, and provides accounting and office management services. LES employs about 15 staff and provides a range of electrical services. 75 As with all of the witnesses who gave oral evidence, I watched and listened carefully to the cross-examination of Mr McEvilly, taking notes of my impressions at the time and preparing these observations soon afterwards while it was still fresh in my mind. Mr McEvilly is quietly spoken and generally understated. That said, he was firm in his views and a careful and attentive witness. It was apparent that this was driven by attention to detail and a desire to be accurate, rather than being either pedantic or unduly aware of the impact of his answers on the ACCC's case. Without hesitation, he gave a number of answers that were not entirely helpful to aspects of that case. He was reluctant, but not ultimately unwilling, to accept that the conduct of Mr Davis and Delta had annoyed him, as had what he perceived to be the preferential treatment of Delta by the NGA and its contractors. As the later cross-examination of Mr Nugraha demonstrated, that perception proved to be well-founded. I ultimately conclude that Delta was intended to be the beneficiary of a degree of overt preferential treatment, especially by Mr Sitauti of Steensen Varming, but also in less clear ways by at least some at the NGA, a process that Mr Davis not only was aware of, but contributed to. 76 Overall, I have little hesitation in accepting Mr McEvilly as a witness of truth, reliability and accuracy, and in accepting his evidence even when not corroborated. That acceptance is qualified to a limited degree by other evidence that cast doubt on limited aspects of what he said had taken place. For the reasons set out below, I do not accept the respondents' submission that any particular caution is required before accepting his evidence. 77 My response to a clash between the evidence of Mr McEvilly and the evidence of Mr Davis has been to look to the timing, logic and consistency of each in the context of, in particular, documentary evidence and the sequence of events to see whether one or the other can safely be preferred. In the greater part, that has resulted in me preferring the evidence of Mr McEvilly, but there are a number of lesser areas where a concluded view was not possible.

Mr Davis and Delta 78 Mr Davis has been a licensed electrician since 1993, and has specialised in mechanical electrical services and BMS since 2000. Prior to founding Delta he was employed at a company called AKM Electrical Services Pty Ltd in the role of apprentice electrician between 1989 and 1993. It was during some of that period where he worked with Mr McEvilly. 79 After 1993, Mr Davis continued with AKM Electrical until 1994, in the role of a tradesman. In subsequent years until 2000, he worked for three more companies, Staefa Controls as a BMS commissioning engineer, Brooks Merchant Industries Pty Ltd as a switchboard designer and Tyco Pty Ltd as a services manager, between 1998 and 2000. Subsequently, he founded Delta in around September 2000, where he has been the sole managing director since then. 80 Mr Davis spoke clearly and quite forcefully. He was a careful but wary witness. He initially answered questions as asked, but there was some degree of deterioration of this as his evidence progressed and the questions became more difficult. Within about 20 minutes of cross-examination, he was visibly sweaty and nervous. To my perception that was a product of being under considerable, and understandable, stress. A close consideration of the transcript reveals that he was put on the spot by methodical cross-examination, with aspects of his evidence being, in context, inconsistent or implausible. I do not accept the respondents' submissions as to any inadequacy of the cross-examination of Mr Davis. 81 Mr Davis came across as well-prepared and was able to agree to questions as to time and the sequence of events without referring to his affidavit (albeit that his affidavit had only been concluded some 36 hours before). He was watchful and careful with his answers. I did not form any adverse view of his demeanour as any basis to doubt his truthfulness, but the same cannot be said about his reliability or accuracy in a number of key respects. That evaluation fell to be considered in light of the logic and sequence of events as established by the rest of the evidence, including that of Mr McEvilly, as well as the damage done by cross-examination. 82 I do not accept the respondents' submission that in order to reject the evidence that Mr Davis gave as to his reasons for attending the 18 December 2019 meeting, and thus more readily draw the inference that the ACCC seeks, I had to find he was lying, being a conclusion that he deliberately and intentionally gave evidence which he knew to be false. My experience in law and life is that people who find themselves in trouble in some way can sometimes reproduce, characterise, justify or explain what they have said, meant, and done in the past to their current advantage to the point of convincing themselves that such an account is true, complete, consistent and accurate. This is such an occasion. 83 As I noted above, Mr Davis was clearly under a lot of pressure. A lot rests on this case for him and for his company. He may well have subjectively convinced himself that a benign account of what took place is true. If so, this is likely to be a view formed in the crucible of self-interest, rather than disinterest, wanting it to be so. 84 In any event, as Deane J observed in Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 271, a finding that a party or witness had deliberately given false evidence should ordinarily not be made unless that it is "truly necessary for the purpose of disposing of the particular case". Such a finding is not necessary in this case.

Mr Mitton and Manteena 85 Mr Mitton generally impressed me as an honest witness, doing his best to give an accurate account of what he said, did, saw and heard. However, he was not as careful as Mr McEvilly and agreed to a number of propositions in cross-examination that could not be correct unless the evidence in his affidavit was false, which I do not accept that it was likely to be. His vice lay in simply being too keen to please and not checking or thinking carefully enough before agreeing to assertions that were put to him. This mostly related to questions of timing as to dates and times. A few examples suffice to demonstrate what I am referring to. 86 In his affidavit, Mr Mitton deposed to having a telephone conversation with Mr McEvilly at about 11.30 am on 12 March 2020. In cross-examination, he was taken to a chain of emails between 6 and 16 March 2020 that were annexed to his first affidavit concerning non-compliance by LES with contractual obligations to furnish "shop drawings" for the Switchboard Project contract by specified dates. Relevantly, within that chain of emails was an email forwarded to him by Mr McEvilly at 12.23 pm on 12 March 2020, so just under an hour after the telephone conversation. Yet despite this, he agreed in cross-examination that the email had been sent to him prior to the telephone conversation. The error was not of any moment beyond demonstrating the lack of care that I have adverted to, and a lack of reliability about the timing and sequence of events when relying upon his unaided or uncorroborated memory. 87 A further example was that Mr Mitton deposed in his affidavit to having been overseas from late December 2019 and most of January 2020, returning to work on 28 January 2020. The email chain referred to above commenced with a show cause notice sent by Manteena's Services/Design Manager, Mr Jason Bills, on 6 March 2020, referring to "Shop Drawings" that were required to be provided by 28 February 2020 and by 4 March 2020 not having been provided. Mr Mitton deposed to having a conversation with Mr Bills about Mr McEvilly being behind schedule with those drawings in February 2020 shortly after he returned to work, to having multiple phone conversations with Mr McEvilly on this topic in early February 2020, and to a "show cause" email being sent not long after one of those early February conversations. However, that email was not sent until about a month later on 6 March 2020. Again, the error in this evidence was not of any moment beyond demonstrating the lack of care that I have adverted to, and a lack of reliability about the timing and sequence of events when Mr Mitton was relying upon his unaided or uncorroborated memory. 88 The importance of the foregoing is confined. In his affidavit, Mr Mitton deposes to having a telephone conversation with Mr McEvilly in late November 2019 about the Switchboard Project, before the tender for that project went out on 29 November 2019. He deposes to a recollection of telling Mr McEvilly during that conversation about LES being potentially invited to tender for the Original NGA BMS upgrade. Mr McEvilly denies being told that before he met with Mr Davis on 18 December 2019. Because of the mild concerns I have about the reliability of Mr Mitton's recollection about the timing (rather than content) of events, and because of the greater confidence I have in relation to the evidence of Mr McEvilly in that regard, I accept and prefer the evidence of Mr McEvilly on this topic as being, on balance, more likely to be reliable. I hasten to add that I make that preference upon the basis only of reliability as to timing, not honesty. I have no reason to doubt Mr Mitton's honesty. Nor do I doubt that he was doing his best to give an accurate and reliable account of events. It is just that this conflict on this small portion of his evidence needed to be resolved if at all possible, and it is resolved in favour of the greater reliability of Mr McEvilly's evidence on this topic.

Mr Nugraha 89 Mr Nugraha has a first class honours degree in engineering from the University of New South Wales, completed in 1998. He held a position at a company in Singapore as a mechanical design engineer for a short period in 1999 before being a BMS project manager for some seven years. By the time he gave evidence he had been employed by Delta for over 15 years, had occupied a range of positions mostly entailing engineering management, and was Delta's ACT engineering manager. In each role at Delta he has assisted with the preparation of responses to tenders, including BMS design, and in providing technical solutions for the integration of various control systems with Delta's products. 90 Mr Nugraha was a careful, thoughtful and clearly spoken witness, although somewhat wary and on occasions taking a while to accept, reject or qualify a proposition put to him in cross-examination. I had no reason to doubt his truthfulness, honestly or general reliability. 91 The respondents cast doubt on Mr Nugraha's capacity to give certain evidence, which is addressed below, but overall I do not share those reservations or concerns. In particular, I am satisfied he was, by reason of his professional training, work history and in particular, experience with and understanding of BMS and BMS tenders, in a position to give evidence about propositions put to him in cross-examination as to the propriety of Mr Sitauti, employed by Steensen Varming as a subcontractor to Manteena and in that capacity performing work for the NGA, and seeking and obtaining input from Delta into BMS upgrade tender specifications that were favourable to Delta and the BMS it could supply. 92 Mr Nugraha was also well-placed to give evidence on technical matters, such as BMS integration or interface needs between the ALC BMS in the NGA Extension and the replacement BMS in the Original NGA, and when such issues might arise to the point of needing to be addressed. He was sufficiently involved with the NGA on behalf of Delta to give evidence about the NGA's BMS upgrade, including as to whether or not that had been expected, at different times, to proceed by way of a tender. I therefore consider that it is open to me to proceed upon the basis of substantially accepting Mr Nugraha's evidence.

Mr Peter Hart 93 Mr Peter Hart is a director of Control & Electric Pty Ltd (C&E), the company that was ultimately the successful tenderer for the Original NGA BMS upgrade in 2020. He was unwell at the time he gave evidence, as it turns out apparently infected with COVID-19 as the Court was advised the next day. He only gave evidence in cross-examination for about 20 minutes, with no re-examination. There was no reason not to accept his evidence.

Affidavit witnesses not called to give oral evidence 94 The relevant aspects of the affidavit evidence of the remaining two witnesses, Mr Mark Wright, an estimator at C&E, and Ms Sarah Burrows, a senior project manager at Manteena, featured briefly in an agreed statement of uncontentious facts established by the evidence. Delta's closing written submissions referred to Ms Burrows' evidence in relation to there being five final tenderers in support of an argument that there was always going to be a tender for the BMS upgrade.

Agreed facts and the resolution of some of the contested facts and issues 95 The substance of the case for the ACCC may be briefly summarised to set the scene: (a) In the period from about August to 2 December 2019, it had been indicated by senior managers at the NGA that Delta would also be likely to be given a contract to carry out the NGA BMS upgrade. (b) On or about 2 December 2019, Delta's engineering manager, Mr Hendra Nugraha, was informed by Mr Tava Sitauti of Steensen Varming that two of the senior managers at the NGA had instead decided that there should be a tender for the BMS upgrade. (c) Mr Davis, upon being told that there was to be a tender for the BMS upgrade, sought to rig the tender process via Mr McEvilly. 96 The following comprises: (a) facts that are not contentious, such that the parties are in agreement that they are established by the evidence, as reflected in a detailed and helpful agreed statement to that effect provided jointly by the parties, based on admissions in the pleadings, subordinate allegations that are not contested, and uncontested evidence; and (b) the identification and resolution of disputed facts outside of the most significant issues in dispute, which are addressed later in these reasons.

Delta, LES and competition between them to supply BMS in the ACT 97 As noted earlier in these reasons, a BMS is a network system for monitoring and controlling a building's internal environment and can be used to control the building's lighting, heating, ventilation, air conditioning, CCTV, fire alarms, lift sensors, and security. It is typically used in large commercial or government buildings, including health care facilities and educational facilities. 98 Although disputed by the respondents, the evidence of Mr McEvilly in his first affidavit at [15] is quite clear in deposing to there being three main types of services that BMS providers supply: design, installation and commissioning services. He states that they comprise the following: (a) Design work, usually involving engineers tailoring the BMS hardware and designing the programs to provide the functionality specified in a customer's tender document. (b) Installation work, involving sourcing, assembling and delivering BMS hardware and installing it at the customer's building. (c) Commissioning work, involving testing and checking the hardware to ensure it is performing as designed. 99 Mr McEvilly also expressly states at [16] that LES is a "full service BMS provider in that it is able to provide all three of these services", being a further unchallenged factual assertion that the respondents inexplicably deny is supported by the evidence. There is no reason not to accept this evidence. Mr Davis at [7] and at [11] of his affidavit deposes to Delta providing BMS design, installation, commissioning services, and maintenance services. 100 Delta designs, installs and maintains BMS in the ACT. On or about 25 March 2010, Delta was appointed as the exclusive distributor for the Delta Controls Brand of BMS in the ACT. Other BMS suppliers in the ACT include C&E, Schneider Electric, Alerton and Innovative Electrical Solutions (IES). They each offer design, installation, and commissioning services. 101 Mr Davis is, and has been since 1 September 2000, the sole managing director of Delta. Mr Davis' role involves overseeing the commercial operation of Delta's business, including maintaining and generating new business, in the ACT. Mr Davis is also responsible for assessing new business opportunities and deciding whether Delta will quote for new business in the ACT. Mr Davis has the ultimate or final authority within Delta to determine the final price Delta will quote on new business. At all relevant times, Mr Davis had the necessary authority to engage in conduct on behalf of Delta. 102 LES is a company that carries out the business of designing, installing and maintaining BMS in the ACT. LES was incorporated on 14 April 2019 and Mrs Karen McEvilly, the wife of Mr McEvilly, has been the sole director and shareholder of LES since that time. Mr McEvilly has been the general manager of LES since about May 2019. 103 The ACCC contends that the evidence also establishes that LES is the exclusive distributor of the Automated Logic Corporation, or ALC brand, of BMS in the ACT and surrounding areas. The respondents accept that the competition condition is satisfied, but do not accept that the evidence goes far enough to establish the existence of any exclusive distributorship, asserting that there is "no evidence" of that fact, and pointing to evidence in cross-examination in which Mr McEvilly said that while he believed that ALC signed such an agreement, he thought they had failed to send one to him and he had never seen a copy signed by them. In his first affidavit at [7] (repeated at [12]), to which this aspect of the cross-examination was directed, Mr McEvilly expressly said, in a single sentence, that in about May 2019 LES had been incorporated and entered into an agreement with ALC to become the exclusive authorised distributor of the ALC brand of BMS in the ACT and surrounding regions. The fact of that having happened was not in terms challenged. Mr McEvilly expressly adhered to this part of his affidavit in cross-examination. In my view, the cross-examination cannot be taken to go further than what was asked, namely that a copy of the agreement with ALC was never seen or received by Mr McEvilly. That falls short of impugning Mr McEvilly's otherwise unchallenged evidence that such an agreement existed from about May 2019. For whatever slight weight or significance that fact might have, I am satisfied that such a legal relationship existed between LES and ALC. 104 The nature of the relationship between Mr McEvilly and Mr Davis is important, because it goes directly to the assessment of the competing accounts by the two men of what was said at the 18 December meeting, to be considered in the context, in particular, of a telephone conversation between them on 9 October 2019. By the time of the events in the second half of 2019 that are critical to this proceeding, Mr Davis had known Mr McEvilly for some 30 years. They met when Mr Davis commenced an apprenticeship at the same electrical contractor where Mr McEvilly was the manager. Mr McEvilly left that employment to set up his own business in about 1989, so the two men had met at some imprecise time not very long before then. On Mr Davis' evidence in cross-examination: (a) for the past 20 or more years the two men have had a purely business relationship as competitors in the same industry, and occasionally saw each other at trade events and the like (a description that Mr Davis said at [27] of his affidavit had applied to their relationship after the year 2000); (b) they are acquaintances rather than friends, and have never had a close or social relationship, such that would involve them catching up for a beer or coffee, only having done so at workplace events when they worked for the same company, which ended in about 1989; (c) before the second half of 2019, he could not recall a single occasion on which he had spoken with Mr McEvilly by telephone for many years. 105 Later in his cross-examination, Mr Davis was taken to the part of the transcript of his 9 December 2020 examination conducted under s 155 of the CCA (s 155 examination). He was challenged on his previous account in which he claimed that: (a) when he saw Mr McEvilly at a site walk at the National Library in July or August 2019 (in fact, on the evidence, 23 July 2019) they had agreed to catch up for coffee because they had known each other a long time; and (b) after he had won the Honeywell BMS maintenance contract, he formed the view that Mr McEvilly would be disappointed and he wanted to clear the air. It was put to Mr Davis that it was very unlikely that at the site walk he would have proposed meeting for a coffee with Mr McEvilly, a proposition he denied. 106 I have difficulty in accepting the account that Mr Davis gave, in his 9 December 2020 s 155 examination, that, at the time Mr McEvilly and Mr Davis saw each other at the National Library in July 2019, Mr McEvilly agreed to meet for coffee because: (a) that form of casual social interaction without any particular overt stated business purpose is inconsistent with the lack of that sort of relationship between them; (b) Mr Davis makes no mention of it in his affidavit; (c) in his affidavit Mr Davis deposes to making a telephone call to Mr McEvilly on 17 December 2019 to arrange a meeting, and only at that time having on his mind wanting to clear the air following the prior call from Mr McEvilly on 9 October 2019. Having regard to the evidence of the 9 October 2019 telephone conversation between the two men, considered in more detail below, I am not satisfied that there was any agreement, or even foreshadowing, for the two men to meet prior to this being proposed by Mr Davis a day or two before it took place on 18 December 2019. 107 In the past, Delta and LES had competed for tenders for BMS work. The competition between Mr Davis via Delta and Mr McEvilly via LES and its predecessor, Electrical Solutions (ACT), had included the tender for the High Court of Australia in December 2013, the tender for the National Library in August 2019, and the tender for the BMS upgrade for the NGA in July 2020 (after the key events in the second half of 2019). Mr McEvilly's company had emerged as the successful bidder for both the National Library and High Court tenders. 108 Since LES was incorporated in April 2019, Delta and LES have competed with each other in relation to the supply of BMS in the ACT and surrounding areas. There is a dispute as to the extent to which Mr McEvilly's prior company, Electrical Solutions ACT, supplied BMS in the ACT and surrounding areas. Mr McEvilly referred to 1991, which was prior to the incorporation of Electrical Solutions (ACT) in 2004, and was probably therefore a reference to the prior partnership he had with his wife. The respondents contend that there was no evidence of any supply of the ALC BMS prior to LES and Delta competing for the BMS upgrade project for the High Court building in 2013. This dispute does not seem to require resolution as nothing seems to turn on it, noting that Mr Nugraha's evidence was that Mr McEvilly had competed with Delta to supply BMSs over a number of occasions over the past 12 years, which goes back to about 2007. Moreover, it was also not in dispute that LES had the contract for maintaining the NGA Extension BMS, so was familiar with it. Indeed, a key explanation Mr Davis gave for arranging the 18 December 2019 meeting with Mr McEvilly was to ask about the possibility of LES subcontracting any necessary integration work. 109 I accept Mr McEvilly's unchallenged evidence in his first affidavit at [13] and [16] that each of Delta, LES, C&E, Schneider, Alerton and IES are in some degree of competition by way of tender for the design, installation and commissioning of BMSs in large commercial or government buildings in the ACT, acknowledging the point that the respondents make as to the lack of clarity as to just what that competition involved, but also noting that nothing seems to turn on this at present given that there is no dispute that the competition condition is satisfied. I also accept Mr McEvilly's unchallenged evidence in those paragraphs that each of those companies are full service BMS suppliers in the ACT, despite the respondents' curious assertion that this evidence to that precise effect does not support that conclusion, but again noting that nothing much seems to turn on that. 110 The ACCC's case, largely based on Mr McEvilly's evidence, is that modern BMS, including the ALC and Delta brands, use an open standard protocol known as "Building Automation Control and Network" (BACnet); and that BACnet allows software and hardware from different suppliers, manufacturers and BMS providers to interface with each other. The ACCC's case is that open standard systems are to be distinguished from proprietary systems, which cannot interoperate with other BMSs. The Honeywell BMS is an example of a proprietary BMS, which the respondents contend is better expressed as a BMS using a proprietary communications protocol. 111 The respondents contend that there is no evidence that an interface between an ALC BMS at the "application layer" for programming to turn equipment on and off, which uses the communication protocol called ARCnet (based on evidence from Mr Davis, which was confined to his understanding of ARCnet, and not as evidence of the fact), and a BMS that uses another communication protocol called BACnet at all layers including the application layer (such as Delta's BMS), will work. Neither Mr Davis nor Mr McEvilly had any experience of integration or interface in such circumstances. This is a point that seems to be taken to bolster Mr Davis' account of the 18 December 2019 meeting. Having read the evidence of Mr McEvilly and Mr Hart referred to by the respondents, the overall burden of that evidence is that two BACnet systems, such as the ALC BMS and the Delta BMS ought to be able to be integrated without difficulty, but the possibility of a problem could not be ruled out, and therefore engaging with LES might be considered prudent to save money. This evidence was apparently adduced in cross-examination in anticipation of Mr Davis waiving penalty privilege and giving evidence, as he did by his affidavit and in cross-examination. The conclusion I reach is that, at the time of the 18 December 2019 meeting, an integration or interface problem between the existing and continuing ALC BMS and the replacement for the Honeywell BMS did not rise higher than a possibility, and it may or may not have required the assistance or cooperation of LES via Mr McEvilly.

The NGA and its BMS arrangements 112 As noted at [18] above, the Original NGA was built around 1982 and the NGA Extension between 2007 and 2010, with the Honeywell BMS being installed in the Original NGA in about 1982. By at least May 2019, Mr McEvilly knew that the NGA wanted to replace the Honeywell BMS. Honeywell provided maintenance services to the NGA for the Honeywell BMS until Delta took over as the contractor responsible for maintenance services. 113 The NGA Extension has a different BMS to the Original NGA. The BMS in the NGA Extension is an ALC brand BMS (ALC BMS). It was installed in or around 2010. The ACCC plead that it was installed by Electrical Solutions ACT, the predecessor company to LES, but the respondents point out that was not proven, or at least no evidence is identified. This does not seem to matter much as LES was the exclusive supplier of ALC BMS in the ACT by at least 2019. 114 A sister company to LES, Logical Service Solutions Pty Ltd (LSS), was incorporated in June 2016. Mr McEvilly is also a director and the company secretary of LSS. LSS is a company that is in the business of providing regular preventative maintenance and servicing of BMSs, and invoices are in evidence for the provision of such services to the NGA for at least the period from 30 April 2019 to 10 January 2020, as part of a monthly service contract. LSS does not provide construction services and does not supply the ALC brand of BMS, unlike LES which does both.

Manteena Pty Ltd and the unchallenged evidence of Mr Mitton as to the tender process 115 In early 2019, Manteena Pty Ltd, a commercial construction company with offices in the ACT, was awarded the contract for managing the "NGA Project". This phrase is used in one of the 2 December 2019 WhatsApp texts from Mr Nugraha to Mr Davis considered below, but in context was apparently only referring to the Original NGA BMS upgrade. In fact, the NGA Project comprised 21 specific projects at the NGA, ranging in value from $10,000 to $10,000,000, with a total overall budget of about $21 million. Two specific projects that involved electrical work (among others) were: an upgrade to, and subsequent management of, the Honeywell BMS at the NGA (BMS upgrade) and the upgrade of several mechanical switchboards (Switchboard Project), under a contract let to LES in early 2020. 116 In the period from about February 2019 to February 2020, Mr Mitton, as Manteena's Project Director, was responsible for leading a team on what was called the "NGA Project". By then, Mr Mitton had been employed by Manteena for over 30 years. That role ceased when he was promoted to the position of Design Manager at Manteena in about February 2020. Mr Mitton's duties and responsibilities in the Project Director role involved managing staff, liaising with clients, reviewing design documents, contracts and programs, managing financial aspects, and identifying suitable tenderers for subcontracting works required to be undertaken. 117 The tender parts of the NGA Project involved Manteena conducting the design and management of tenders, dealing with parties who submitted tenders (including subcontractors), assessing the tenderers, informing the NGA as to how tenderers fitted in with budget requirements, and recommending a successful tenderer. 118 Mr Mitton described the Honeywell BMS for the Original NGA and the NGA Extension BMS as operating independently of each other, and with limited exceptions comprising separate mechanical systems. The exceptions were some common infrastructure shared between the Original NGA and the NGA Extension, such as boilers in the former that also supplied water to the latter. Alterations and checks on each BMS were completed separately and effected through their different platforms. 119 Manteena also from time to time engaged Steensen Varming (Australia) Pty Ltd to provide design and consultancy services in relation to the NGA. As relevant to this proceeding, some of that work for Steensen Varming was performed by its employee, Mr Tava Sitauti. Uncontested evidence considered in some detail below about the conduct of Mr Sitauti, who was not called as a witness, is part of the matrix of evidence, especially his role, aided by Mr Nugraha, in apparently slanting the drafting of tender specifications to favour Delta's prospects of success, and Mr Davis' contribution to that process by suggesting changes to the information that Mr Nugraha provided in an email to Mr Sitauti on 30 October 2019, considered in more detail below. 120 Mr Mitton's evidence as to how the tender process took place for the BMS upgrade was not challenged in cross-examination and may therefore be briefly summarised as follows, with a notable feature of this evidence being a lack of any precise recollection on his part as to when any of the individual meetings or conversations took place, or even their sequence, unless there was a documentary record available. During his time as project director for the NGA Project, Mr Mitton had both weekly scheduled formal meetings with NGA staff, including the manager of the capital works team at the NGA, Mr Nick Xirakis, and unscheduled informal meetings or discussions with NGA staff. 121 In the three-month period from about August to October 2019, Mr Mitton also had a number of formal and informal meetings with Mr Xirakis, during which they discussed the Honeywell BMS at the Original NGA. At one of the weekly formal meetings with the NGA, Mr Xirakis told Mr Mitton that the NGA was not intending to renew its contract with Honeywell, because of unhappiness with its performance. At another meeting during this period, Mr Xirakis told Mr Mitton that Delta would be managing all of Honeywell's projects at the NGA and would be the interim manager for the Honeywell BMS until a new contractor was formally appointed and that there would be a process to change that BMS. That is, the maintenance contract was given to Delta directly by the NGA and Manteena was not involved in that decision. The evidence indicates that Manteena was probably advised by the NGA of the 12-month maintenance contract given to Delta sometime in the period between August and October 2019, although it was not formalised until November 2019, after the decision had been made, but nothing turns on this. 122 Around October 2019, with the sequence being unclear, Mr Xirakis told Mr Mitton that there would be a formal tender process undertaken by the NGA to replace the contractor responsible for managing the BMS in the Original NGA. Despite this being an ostensible reference to management or perhaps maintenance, Mr Mitton later understood this to have been a reference to the tender to upgrade that BMS. 123 Also around this time, with there being no date or even month identified by Mr Mitton, Manteena was engaged by the NGA to design the BMS upgrade tender to replace the Honeywell BMS. By reason of records that came into existence in late October referred to below, I infer this engagement did not take place until after that time. In a meeting with Mr Xirakis to discuss that tender, Mr Mitton recalls Mr Xirakis telling him that Delta would be on the list of tenderers. 124 On 29 October 2019, Mr Mitton and other representatives of Manteena, attended a meeting at Manteena's premises with representatives of the NGA, including Mr Xirakis, and certain other contractors. Mr Mitton deposes to the BMS upgrade tender being discussed. That is borne out of the minutes of that meeting that Mr Mitton produces. Those minutes disclose the following: (a) the project for which the meeting was called was the NGA infrastructure program; (b) its purpose, as set out at item 1.2, was to "give stakeholders a high-level review of the project's current activities and to maintain the responsibility for those completing the action items"; (c) under the heading "6.0 PLANNING PHASE" was a list of topics, the last of which at item 6.10 records (emphasis added to the last line): 6.10 BMS Control Strategy • MCPL to issue PPB and planning phase fee for approval • SVA to be engaged as consultant • Delta and Web Control proposed as likely contractors 125 By reference to the next entry, this minute entry indicates that Delta and LES had been proposed as likely contractors, the reference to "Web Control" being a reference to LES. Further, the reference to "SVA to be engaged as consultant" is a reference to retaining Steensen Varming, as is made clear below. 126 The following day, 30 October 2019, an email was sent to Mr Mitton by a contracts manager appointed by the NGA who had chaired the meeting, Mr Adam Kaufhold, copied to Mr Jason Bills at Manteena, and to Mr Xirakis and Ms Dagseven at the NGA. The email was headed "NGA Infrastructure Program - BMS Control Strategy". Mr Kaufhold's email was as follows (emphasis added): Hi Rod Thanks for meeting with the Gallery yesterday to discuss the BMS Control Strategy project. We are seeking a Project Planning Brief (PPB) and planning phase fee to commence project planning. Key points to inform the PPB are summarised as follows: • Aim (broadly): To provide head end equipment and remove and replace controllers and EOLD Budget: $1.5M • Program: planning from Nov 19 to Feb 20, delivery from Feb 20 to Jun 20 (subject to advice received from approach to market) • Area: Main Building & TEG and excludes Web Control areas • Consultants: Steensen Varming • Base Building BMS Contractor: Delta Building Controls (can be accessed to provide advice to inform performance specification and/or design in conjunction with the NGA building services team) • NGA Stakeholders: All • Procurement (contractor): Limited and options are Delta, Web Control, Schneider Electric Please advise if there is any further information you require and we look forward to receipt of the PPB and Manteena planning phase fee. 127 I was satisfied, over objection, that Mr Mitton had sufficient expertise to give evidence about the tender processes and communications about such processes, and could therefore give the following evidence about the meaning of key aspects of that email: (a) "Web Control" was a reference to LES because this is the product name of the software used in the ALC BMS that LES maintains; (b) "Limited" indicated that the NGA was seeking a closed tender process whereby only specific tenderers would be invited to apply, rather than the tender being publically advertised, that is, as an open tender (which can also be described as a competitive tender); (c) the NGA was indicating by that time that it considered the possible options for BMS providers for the tender were Delta, LES and Schneider Electric. 128 It is of considerable importance that the minutes of this 29 October 2019 meeting record consideration of a procurement process for the BMS upgrade by way of a limited tender confined to only three tenderers: Delta, LES and Schneider. 129 Mr Mitton disagrees with affidavit evidence by Mr Nugraha to the effect that Delta would have needed to have discussions with, or coordinate with LES if it succeeded in winning the BMS upgrade tender, and whether that meant that the successful tenderer would need to enter into some commercial agreement with LES, such as a subcontracting arrangement. As Mr Mitton described it in his second affidavit, while some limited integration was required between the new BMS in the Original NGA and the existing BMS in the NGA Extension as part of the BMS upgrade tender, that would be practically achieved by the NGA directing LES to provide the NGA or the successful tenderer with sufficient information to facilitate that integration. 130 Mr Mitton further deposed that while LES might need to have some limited discussions with the successful tenderer to carry out that direction, there was no need for there to be any separate engagement of LES to achieve that integration. While this evidence was given in the context of the BMS upgrade tender that ultimately issued, I am comfortably satisfied that its use was not so confined and in fact reflected the substance of the objective situation in the second half of 2019 as well. I find it difficult to accept that Mr Davis could legitimately have had a different view and thus concern, especially prior to the BMS upgrade tender being issued. This conclusion is important when it comes to resolving the conflicting evidence about the 18 December 2019 meeting.

Events from 31 July 2019 to 30 November 2019 131 As at 31 July 2019, Mr Nick Xirakis was Head of Capital Works at the NGA. On 31 July 2019 Mr Xirakis sent Mr Davis a message on the LinkedIn platform asking Mr Davis to call him. 132 After receiving the LinkedIn message, Mr Davis called Mr Xirakis and left him a voice message. Mr Xirakis then called Mr Davis and asked him if Delta would be able to provide a proposal for Delta to do servicing and maintenance on the Honeywell BMS. Following the call, Mr Davis sent Mr Xirakis a text message with his email address. 133 At the time of the 31 July 2019 call with Mr Xirakis, Mr Davis did not regard the Honeywell maintenance contract as commercially attractive by itself. However, Mr Davis saw the service and maintenance arrangement with the gallery as a potential stepping-stone to winning the work to replace the Honeywell BMS. The respondents suggest that this extended to other upcoming infrastructure projects at the NGA, but Mr Davis' evidence did not go that far. 134 On 2 August 2019, Mr Xirakis emailed Mr Davis and invited Mr Davis and "Sid" (his brother, Mr Glenn Davis) to have a meeting to discuss "BMS and related building controls" for the NGA. 135 On 8 August 2019, Mr Davis and Mr Glenn Davis met with Mr Xirakis and Mr Mark Mandy (NGA Head of Facilities Management) at the NGA. At the meeting Mr Xirakis asked if Delta would be able to do the maintenance work on the Honeywell BMS and said he was interested in learning more about the Delta BMS. Mr Davis understood Mr Xirakis to be saying that he was interested to learn more about the possibility of the NGA replacing the Honeywell BMS with a Delta BMS. 136 On 9 August 2019, Mr Xirakis emailed Mr Davis to organise a team from the NGA to visit Delta's offices on 14 August 2019 for a presentation on Delta's BMS. 137 On 14 August 2019, Mr Davis and Mr Nugraha delivered the "Delta Product and Capability Presentation" at Delta's offices in Canberra to Mr Xirakis, Mr Matthew Hanns and Ms Amelia Gregory (an employee of the NGA). The purposes of the meeting included, inter alia, discussing the potential for Delta to perform service and maintenance work on the Honeywell BMS, introducing the NGA personnel to the Delta BMS and its features, promoting the Delta BMS, and promoting the Delta BMS as a potential replacement for the Honeywell BMS. 138 At that meeting, Mr Xirakis told Mr Davis and Mr Nugraha that the NGA was "looking for someone to take over the service and maintenance work for the Honeywell BMS in the original part of the NGA", and that "at some stage the gallery will be upgrading the Honeywell BMS". Mr Xirakis also said that he and the NGA staff had seen the BMS that Delta had set up at the National Archives and that they wanted to see the capabilities of the Delta BMS. Mr Davis understood from what Mr Xirakis said at that meeting that the replacement of the Honeywell BMS was part of the capital works that the NGA was proposing to undertake in the near future. 139 Mr Xirakis also said at that meeting that the NGA would like the service and maintenance work to go to a company that would have the ability to do the BMS upgrade. This was consistent with Mr Davis' assessment at the time that getting the service and maintenance work was a stepping stone to getting the BMS upgrade work. Mr Davis' thinking at the time was that if Delta could secure the service and maintenance work, it was very likely that it would get the BMS upgrade work. This is an important contextual circumstance to take into account in assessing what happened after that, culminating in the 18 December 2019 meeting, as are the next described events in August 2019 that followed. 140 In the weeks after the 14 August 2019 meeting, Mr Nugraha attended several walkthroughs at the NGA. The purposes of the walkthroughs included assisting Delta to prepare a proposal for the service and maintenance contract in relation to the Honeywell BMS, assisting Delta to determine the work that would be required to replace the Honeywell BMS with a new Delta BMS, and enabling Delta to quote for that work if it was asked to do so. 141 On 27 August 2019, Mr Xirakis emailed Mr Davis requesting a "monthly monitoring proposal" for Delta "to takeover our building management systems". Despite the apparent breadth of this email, it was in fact a narrower request for a proposal for the service and maintenance contract for the Honeywell BMS. Mr Xirakis added, "We would further like Delta to be involved in our upcoming infrastructure projects currently managed onsite by Manteena." Mr Davis replied the following day to say that Delta "would be delighted to assist as required". 142 On 13 September 2019: (a) Mr Davis and Mr Nugraha met with Mr Xirakis at the NGA to discuss the Honeywell BMS; (b) Mr Xirakis sent an email to Mr Mitton and Mr Bills of Manteena, copied to Mr Nugraha and Mr Davis, instructing Manteena to commence conversations with Delta "in relation to all infrastructure projects going forward excluding 1B" - the reference to "1B" was a reference to the NGA extension building, which had the ALC BMS; (c) Mr Mitton telephoned Mr Nugraha and asked Delta to price up all current works with the NGA; and (d) after the call with Mr Mitton, Mr Nugraha informed Mr Davis that he had received "a call from Manteena asking us to price up current works with NGA" and that Mr Xirakis had "instructed Manteena not to engage Honeywell anymore from today". 143 The ACCC contends that the evidence established that both Mr Nugraha and Mr Davis understood that the infrastructure projects referred to at (b) above would include the proposed upgrade of the Honeywell BMS. The respondents contend that the evidence goes no further than establishing only that Mr Davis was hopeful that those infrastructure projects would include the proposed upgrade of the Honeywell BMS, and that there was no evidence to support Mr Nugraha having any such understanding. I am unable to accept the respondents' submission, and accept the characterisation of the facts urged by the ACCC as established by the evidence for the following reasons (noting that the reference to "1B" is a reference to the NGA extension): (a) the respondents' argument entails reading the sentence in the email that was copied to both Mr Davis and Mr Nugraha as meaning something less than what was expressly stated, namely that Mr Mitton should commence conversations with Delta in relation to all infrastructure projects other than the ALC BMS in the NGA extension; (b) in his first affidavit at [22], Mr Nugraha repeated the substance of the email without qualification as to what it said; (c) in cross-examination Mr Nugraha agreed with the words "that's correct, yes" that the email was "an instruction by Mr Xirakis to Manteena to commence commercial discussions with Delta on all infrastructure projects at the gallery going forward, excluding [1B]"; (d) after some further questions on this topic, it was put to Mr Nugraha that in the email to all infrastructure projects at the gallery outside of 1B, he "understood" Mr Xirakis to mean that it included the upgrade of the Honeywell BMS, to which he ultimately responded "I would so say so, yes"; (e) Mr Davis accepted in cross-examination that the email was a wider instruction than the maintenance contract for the Honeywell BMS and was an instruction from Mr Xirakis to Mr Mitton to commence commercial discussions with Delta related to all infrastructure projects at the gallery excluding 1B and that his "understanding at the time was that those infrastructure projects would include the proposed upgrade of the Honeywell BMS". 144 The affidavit evidence of Mr Davis at [58] is therefore referring to his state of mind as at 13 September 2019, where he is saying that he did not think he was guaranteed success in relation to the "BMS upgrade contract", and also saying that he did not know whether it would be mandatory for the BMS upgrade to be the subject of a competitive tender, but anticipated that there would be a competitive tender. Mr Davis' evidence at [54]-58] of his affidavit is as follows: [54] Also after the 13 September 2019 meeting, I was copied to an email Nick Xirakis sent to Rod Mitton and Jason Bills from Manteena in which Nick instructed Manteena to "please commence the conversations with [Delta] in relation to all infrastructure projects going forward excluding 18". A copy of Nick's email is at TDD-1 Tab 13[DBA.001.001.0183]. I recall receiving this email and my understanding of it at the time was that Delta would be approached by Manteena and asked for pricing in relation to all NGA BMS infrastructure projects in the future excluding 1 B (being the NGA Extension) and I also thought this was a positive statement in relation to Delta's chances of securing the BMS Upgrade Tender. [55] Later on 13 September 2019, Hendra sent me a message on WhatsApp to tell me that he received a call from Manteena and that he was going to see Rod Mitton on-site after the site walk. Hendra also said that Nick had instructed Manteena not to engage Honeywell anymore. A copy of Hendra's and my WhatsApp messages are at TDD-1 Tab 11 [DBA.001.002.0016]. [56] From around this time, my attention turned to pricing the Honeywell Service and Maintenance Contract, and I left it to Hendra to follow up with Nick Xirakis in relation to site walk-throughs. At around this time, I recall saying to Hendra words to the effect of: [Mr Davis]: I really want you to be on your toes. You were there when Nick Xirakis told us that the Honeywell BMS is going to be upgraded at some point and if we're doing service and maintenance on that BMS it makes sense for us to do the upgrade work. Nick Xirakis has also told Manteena to start a conversation with Delta in relation to all future BMS projects in the NGA excluding any in the extension. Find out whatever you can about the Honeywell upgrade. [Mr Nugraha]: No worries. I'll keep it in mind as I'm going through. [Mr Davis]: I want you to basically reverse engineer the Honeywell BMS. I want to know everything. [57] When I referred to reverse engineering the Honeywell BMS, I had in mind that Hendra would prepare a network architecture and points list. At that stage, I was considering the pricing for the Honeywell Service and Maintenance Contract, although Craig Davis was primarily responsible for pricing that contract. However, I thought that it would be useful for Hendra to prepare a network architecture and points list so that it would assist our technicians undertaking the maintenance works and also so that it would be useful when it became necessary to price the BMS upgrade contract in due course. As I explain in paragraph [170] below, it was actually Ron Atinkson rather than me who eventually did the pricing. [58] Although Nick Xirakis had told Manteena that it should start a conversation with Delta in relation to all future infrastructure projects in the NGA, I did not think that Delta was guaranteed success in respect of the BMS upgrade contract. I did not know whether it would be mandatory for the BMS upgrade to be the subject of a competitive tender, but I anticipated that there would be a competitive tender managed by Manteena. I was trying to put Delta in the best position to win the BMS upgrade regardless of whether it was the subject of a competitive tender. 145 The email sent on 13 September 2019 as referred to at [54] and [58] of Mr Davis' affidavit above sent to representatives of Manteena, Mr Rod Mitton and Mr Jason Bills by Mr Xirakis is as follows: Hi Rod, As discussed this morning, please see the contact details for Delta, please commence the conversations with them in relation to all infrastructure projects going forward excluding 1B. Hendra will be on site on Monday morning meeting with our HVAC team and may have time for a catch up with Manteena. As always, happy to discuss further, if required. 146 Mr Davis was cross-examined on this aspect of his affidavit evidence as follows: …do you see the date of this email is 13 September, so it's the same date as you're talking about in paragraph 55. You see that?---Yes. And then in paragraph 56, you say in the second sentence, just before the quoted speech in the third line "at around this time", you see that?---Yes. So there, you're saying at around 13 September 2019, correct?---Yes. And you say: I recall saying to Hendra words to the effect of - And then there's some quoted speech?---Yes. And do you see about four lines down, you say: Nick Xirakis has told Manteena to start a conversation with Delta in relation to all future BMS projects in the NGA excluding the extension. ?---Yes. And that reflects the fact that your understanding at this time was that this instruction from Mr Xirakis to Mr Mitton was to start a conversation with Delta in relation to all future BMS projects in the NGA outside of the extension, correct?---I'm sorry. Could you repeat that? I was just reading another paragraph. Yes, of course. This reflects the fact that your understanding as at 13 September 2019 was that the instruction of Mr Xirakis emailed to Mr Mitton on that day was to start a conversation with Delta in relation to all future BMS projects in the gallery excluding the extension?---In relation to the infrastructure works. Well, all future BMS projects is how you described it to Mr Nugraha, correct?---Yes. And that was a correct description?---Yes. And that included the BMS upgrade, correct?---Yes. Now, Mr Nugraha, in this same text on 13 September 2019 sent via WhatsApp, told you that Mr Xirakis had told him that Mr Xirakis had instructed Manteena not to engage Honeywell any more from that date. Do you recall that?---Yes. And that was particularly exciting news to you, given that it meant you were likely to win the service and maintenance contract?---Yes. But as you say in your affidavit, the service contract for the Honeywell BMS was of itself uncommercial from Delta's standpoint in view - if it was viewed in isolation?---Yes. And the true value of the service and maintenance contract from your perspective was that you anticipated it would assist you in winning the work of replacing the Honeywell BMS with a new BMS?---Yes. It was the stepping stone, as we have discussed?---Yes. And your expectations in this regard were consistent with what Mr Xirakis had told you at the 14 August meeting at the gallery regarding the fact that the gallery was looking a maintenance contactor for the Honeywell BMS in the first instance, but that it intended that that same contractor would ultimately do the BMS upgrade?---Yes. Now, you say in your affidavit that you did not think that Delta was guaranteed success in respect of the BMS upgrade on 13 September 2019. Do you recall that?---Yes. But Mr Xirakis had already told you that the gallery would be looking to use the same provider for the replacement of the Honeywell BMS as they were using for the service and maintenance work, correct?---Yes. So you must have thought that Delta was very likely to win the BMS upgrade if it was able to secure the service and maintenance contract?---Yes. And you were very confident of winning at that time?---As at - - - Sorry, as at 13 September 2019 you were very confident of winning the BMS upgrade work?---Yes. 147 Carefully reading Mr Davis' affidavit at [54]-[58] together with his cross-examination on this very issue, I am satisfied that he has gone further in his cross-examination evidence than [58] of his affidavit by agreeing that he was very confident of winning the work, without the qualification of expecting a competitive tender. Mr Davis perhaps did not appreciate the significance of the final answer reproduced above. He went further than his affidavit by moving, as at 13 September 2019, from not being guaranteed that Delta would win the contact, not being aware whether a competitive tender was required, and expecting a competitive tender, to being very confident of winning the work. I am unable to accept that he could be confident of winning the work if there was a competitive tender, or even if there was a limited tender with only Delta and LES bidding without clear evidence being given of the basis for any such confidence. I therefore understand the final resting place of his evidence on this issue during cross-examination to be that as at 13 September 2019 he was confident of winning the contract if there was no tender process and, at that time, he thought there was at least a possibility of there being no tender process. This is not necessarily inconsistent with [58] of his affidavit. 148 For completeness, Mr Davis later in his affidavit at [125] is not talking about his state of mind at 13 September 2019, but rather is his account of his state of mind on 17 December 2019, at the time that he rang Mr McEvilly to set up the meeting the next day. He is there saying that he was confident of winning the tender, and with hindsight was perhaps over confident. But his overall position is somewhat inconsistent as between evidence and submissions. 149 The case his counsel puts forward is that this was confidence in relation to winning a competitive tender, or a tender with more than 2 tenderers, but this does not sit well with the 2 December 2019 WhatsApp texts from Mr Nugraha. The ultimate conclusion I reach is that, by the time of Mr Davis' meeting with Mr McEvilly on 18 December 2019, he was trying to engineer the same effective position that he had thought was possible as at 13 September 2019, with the appearance of a limited tender, or at least the NGA seeking a limited tender, but the reality of no real tender at all taking place, either because of LES not participating, or of LES not participating as a genuine competitor for the BMS upgrade contract. This was reflective of him saying to Mr McEvilly that he was confident of winning, but not genuinely having that level of confidence. 150 This conclusion is also supported by Mr Davis' acceptance in cross-examination of the proposition that he was excited to get the information from Mr Nugraha by a WhatsApp text after the email that Mr Mitton had asked Delta to price all current works with the NGA. Mr Davis sought to downplay the proposition that one of the reasons for that excitement was that he understood the pricing instruction to include the work of replacing the Honeywell BMS to which he responded "possibly". When challenged on that somewhat tepid response, Mr Davis sought to walk back from the answers he had given by referring to being "hopeful" that the work would include the upgrade of the Honeywell BMS. But this must be read as relating to being hopeful that the process would result in getting that contract, and does not detract from him understanding that the direction being given by Mr Xirakis to Manteena via Mr Mitton was to commence commercial discussions that would include the Honeywell BMS upgrade, and that this would possibly extend to pricing that upgrade at that time. 151 It is reasonably clear on the evidence read as a whole and properly understood that, as at 13 September 2019, Mr Davis and therefore Delta were confident of winning the Honeywell BMS upgrade work. That conclusion is reinforced by what Mr Davis said to Mr Nugraha in around mid-September 2019. Mr Davis instructed Mr Nugraha to find out whatever he could about the Honeywell BMS upgrade. Mr Nugraha recalls in his first affidavit at [30] that the effect of what Mr Davis said to him as being: We need to prepare a Delta BMS points list and network architecture design for the replacement of the Honeywell BMS and to help the service team to understand what's involved in maintaining the Honeywell BMS. 152 Mr Nugraha's first affidavit at [31] deposes to, after that conversation with Mr Davis, him working with Mr Wilcomes on a preliminary network architecture design and points list, setting out how a Delta BMS might be installed in the NGA, which would assist them in understanding the time and materials required. 153 The burden of Mr Nugraha's evidence in cross-examination is that: (a) a points list is a list of all the inputs and outputs that will form part of a new BMS; (b) together with network architecture, a points list is used by Delta to price the costs of supplying a new BMS, here for the replacement of the Honeywell BMS with the Delta BMS; (c) a points list is also used to assist service technicians when installing a new BMS. 154 Mr Nugraha agreed that the fact that pricing was being prepared at the earlier time from about mid-September 2019 reflected the fact that Delta was not expecting there to be any formal competitive tender for the work of replacing the Honeywell BMS at that time. Mr Davis' affidavit evidence at [77] was that between 1 and 3 October 2019, he had received a series of emails from Mr Nugraha in relation to the points list and preliminary network architecture for the NGA and that Mr Nugraha had suggested he could use the preliminary network architecture to accompany his pricing submission, with Delta not yet having started pricing the BMS upgrade as a whole. 155 The ACCC and the respondents agree regarding the dual purpose of the points list. That is, the points list could be utilised for preliminary works related to the network architecture for the NGA and undertaking the work of replacing the Honeywell BMS. However, the respondents submit that Mr Davis only believed that the upgrade contract use was only confined to the pricing of the upgrade when the tender was ultimately released in due course. Mr Davis confirmed that a 1 October 2019 email from Mr Nugraha attaching a points list reflected the fact that the points list was being prepared, at least in part, to price a new Delta BMS at the NGA to replace the Honeywell BMS, but also to assist with the service and maintenance contract because there was no Honeywell service or points list available for Delta to undertake the maintenance. Mr Davis also confirmed those emails were not addressing the pricing for the service and maintenance contract, because that had already been submitted. 156 The respondents rely upon evidence from both Mr Nugraha and Mr McEvilly that pricing for a proposed BMS for would require consideration of the tender documents, including drawings and specifications. However, this evidence of Mr McEvilly was given in the context of cross-examination on the 18 December 2019 meeting with Mr Davis, by which time it was known that there was going to be a tender process of some kind. This evidence from Mr Nugraha was also given in the context of a tender process. Therefore, the ACCC accurately characterises one purpose of the points list that Mr Davis, in mid-September 2019, asked Mr Nugraha to prepare was to assist Delta to prepare a pricing submission for the replacement of the Honeywell BMS with the Delta BMS. That is, it was work to support a submission on pricing for the purposes of a contract that would be let in the absence of a tender process. Mr Davis' evidence that it was impossible to price the BMS Upgrade before the release of the tender, and Mr Nugraha's evidence that the points list and network architecture were insufficient has to be understood in that light and its scope limited to the tender process once that emerged. 157 On 16 September 2019, Mr Nugraha attended a meeting with Mr Mitton and Mr Paul Cresswell of Manteena and Mr Matthew Hanns of the NGA. On a walkthrough that day, either Mr Xirakis or Mr Hanns told Mr Nugraha that the NGA was contemplating replacing the Honeywell BMS and Mr Hanns and Mr Nugraha discussed the "changeover methodology". After the walkthrough, Mr Nugraha emailed Mr Hanns asking if he could return to the NGA on Wednesday, being 18 September 2019, "with one of our commissioning engineers, Steve Saltum, to review the changeover methodology". By the words "changeover methodology", Mr Nugraha was referring to "the process for the replacement of the Honeywell BMS with Delta BMS". 158 On or around 16 September 2019, Mr Nugraha discussed the replacement of the Honeywell BMS with Mr Davis. 159 On 18 September 2019, Mr Nugraha conducted a site walk of the NGA with Mr Steve Saltum. Mr Saltum was employed by Delta Building Automation (Vic) Pty Ltd and was based in Melbourne. He had flown to Canberra for the day to assist Mr Nugraha. 160 On 19 September 2019, Mr Nugraha emailed Mr Davis a summary of his 18 September 2019 site visit at the NGA. That email prints out as a full A4 page. As part of the summary, Mr Nugraha's email relevantly stated (ellipsis in place of portions not reproduced; emphasis added): I've put all graphics screenshots, points list and site photos in a dropbox folder here: … ln summary: l. … 2. … 3. … 4. … 5. There is an existing ALC system which controls mainly the front part of the gallery (part of BENMAX upgrade few years ago), they're not part of our upgrade works. The ALC controllers are on different VLAN to that of Honeywell. 6. … 7. … 8. … 9. … Items to consider for pricing: 1. … 2. … 3. … 4. … From both Steve and my point of view, we both believe the Temporary Exhibition Gallery (TEG) plantroom should be our first one to cutover as it addresses a) current Manteena's TEF dehumidifier project, b) establishes Delta's presences on-site and c) the current exhibition (Contemporary Worlds: lndonesia) is due to finish on 27/10/2019 and this would give us enough time to prepare the contract, documentation, programming, graphics, procurement etc. Also before our first cutover, we need to establish the enteliWEB server first to ensure visibility is maintained at all times. 161 The ACCC submits that the evidence of Mr Davis and Mr Nugraha establishes the following about the above email: (a) the reference to "our upgrade works" was intended by Mr Nugraha, and understood by Mr Davis, to mean the replacement of the Honeywell BMS with a Delta BMS; (b) the reference to "Items to consider for pricing" was intended by Mr Nugraha, and understood by Mr Davis, to refer to the work of pricing the replacement of the Honeywell BMS with a Delta BMS; and (c) the reference to "cutover" refers to "the cut over from the Honeywell BMS to the Delta BMS", which would first be installed in the Temporary Exhibition Gallery (TEG) plant room at the NGA. 162 In relation to (a) above, the respondents take issue with Mr Nugraha's understanding being shared by Mr Davis, with him initially agreeing to that proposition in cross-examination, and then recanting once further questions made clear the adverse consequences of the acceptance of that proposition. I found Mr Davis' original acceptance more credible than his recantation, and made a note to myself at the time the evidence was given to that effect. Having reread the transcript I remain of that view. I reach the same conclusion about (b). I therefore accept the slightly lesser assertion made by the ACCC in relation to those two portions of the email. That carries over to (c) above as it is a consistent way to read that email. It follows that this is evidence of an expectation on the part of Mr Davis, and thus of Delta, that the contract for the BMS upgrade would be given to Delta, and that, as at 19 September 2019, the respondents did not envisage any tender process taking place for the BMS upgrade. 163 The ACCC further submits that, in his email of 19 September 2019, Mr Nugraha was proposing that the process of replacing the Honeywell BMS with a Delta BMS would commence in about six weeks' time and would coincide with the capital works within the temporary exhibition gallery (TEG), and points out that Mr Davis did not respond to this email by suggesting that Mr Nugraha's proposal was unrealistic. I consider that this is the most sensible way to read the email. It follows that I accept the ACCC's follow on submission that, as at 19 September 2019: (a) Mr Nugraha was proceeding on the assumption that there would not be a formal competitive tender for the work of replacing the Honeywell BMS; and (b) Mr Davis and Mr Nugraha both (somewhat optimistically) assumed - perhaps better described as hoped - that Delta alone would be awarded the work of replacing the Honeywell BMS with the Delta BMS. 164 However unrealistic an assumption of no tender process at all taking place might have been, it was dispelled by no later than 2 December 2019 because of what Mr Sitauti told Mr Nugraha about a tender process involving just Delta and LES, forming the basis for a text from Mr Nugraha to Mr Davis to that effect on that date. 165 On 24 September 2019, Mr Davis emailed Delta's proposal on the maintenance of the Honeywell BMS to Mr Xirakis. 166 The ACCC submit, and I accept that the evidence establishes, that: (a) the service and maintenance contract was itself uncommercial from Delta's standpoint, if viewed in isolation; (b) the true value to Delta of that service and maintenance contract was that Mr Davis anticipated it would assist Delta in winning the work of replacing the Honeywell BMS with a new BMS; and (c) Mr Davis thought that Delta was very likely to win the BMS Upgrade if it was able to secure the service and maintenance contract for the Honeywell BMS. 167 Manteena was advised by the NGA of the 12-month maintenance contract given to Delta in about September 2019, after that decision had been made. That is, the maintenance contract was given directly by the NGA and Manteena was not involved in that decision. 168 From mid-September 2019 to early October 2019, Mr Nugraha worked with Mr Jason Wilcomes, a project engineer with Delta, on a preliminary network architecture design and points list. 169 In September and October 2019, Mr Davis appreciated that there might possibly be difficulties in the future in integrating a Delta BMS at the NGA with the ALC BMS in the NGA Extension. I am not satisfied on the evidence that this concern genuinely rose any higher than that, not least because there was no sound basis at that pre-tender stage for it to be more than a possibility. I accept Mr Mitton's evidence as to how this concern, if it crystallised, could readily have been addressed if and when it needed to be. 170 Between 1 and 3 October 2019, Mr Nugraha sent Mr Davis a series of emails in relation to the points list and preliminary network architecture for the NGA. The reference to "pricing" in Mr Nugraha's email of 1 October 2019 was to pricing the replacement of the Honeywell BMS with a Delta BMS. 171 By 3 October 2019, Delta was taking steps to assemble the information it would need to price up the BMS upgrade. It needs to be kept steadily in mind that this was prior to any indication of there being a tender process, as opposed to a single party - Delta - quote process. It is not to the point that this might have seemed unlikely at the time, as, logically, work done on this would hardly have been wasted even if a tender process did emerge because of the information that would have been assembled in aid of any such process. 172 In or around late September or early October 2019, there was a site inspection at the Fairfax Theatre at the NGA. Mr McEvilly and Mr Glenn Davis of Delta attended that inspection. During the inspection, Mr McEvilly observed that employees of Delta were in attendance. The respondents dispute Mr McEvilly's account of what he said at this site inspection. However, no competing evidence was called, and he adhered to the account recorded in his affidavit evidence to the limited extent it was the subject of cross-examination. I therefore accept his evidence as to what he said, as follows: [39] In or around September 2019, I attended a site inspection at the Fairfax Theatre of the NGA for a small tender job. During the site inspection, I noticed that representatives from Delta were present. I considered this odd given that I was not aware that Delta was involved in completing any works on that part of the NGA. During the site inspection, the Project Director of the NGA informed me that Delta was the incumbent maintenance provider for the Honeywell BMS. I was surprised by this because I had not heard about the maintenance contract for the Honeywell BMS being released for tender. [40] Shortly after the site inspection was completed, I telephoned Tim [Davis] to ask him what the representatives from Delta were doing at the site inspection at the NGA so that I could better understand whether Delta had a contract with the NGA to perform maintenance works for the Honeywell BMS. I recall Tim said that Delta had been engaged by the NGA to perform service and maintenance works on the Honeywell BMS. Tim said words to the effect: "We priced some of the repair works on the Honeywell BMS but have not yet received any orders." 173 Mr McEvilly's oral evidence during cross-examination was consistent with his affidavit as follows: We - we were invited to a site inspection for an upgrade on the Fairfax Theatre at the gallery by one of the mechanical services clients we had. When I turned up for that site inspection to have a look at the works, I noticed Delta were onsite and the project director, I think it was, actually informed everyone in attendance that Delta were the BMS provider for the gallery and that's when I found out that Delta were there and followed up with the phone call to Tim. Yes. Tim himself wasn't there at the Fairfax Theatre; that's right, isn't it?---Sorry? Tim was not there at the Fairfax Theatre, was he?---No. Mr Glenn Davis was there at that meeting And it's right, isn't it, that when you saw Glenn Davis at that meeting, you said to him words to the effect of, "What the hell are you guys doing here"?---That's probably close to the words I used when I rang Tim, yes. It may have been less polite than that?---No. It probably wasn't any less polite than that. But you accept you said words to that effect both to Mr Glenn Davis in - at the theatre and then in your subsequent phone call with Mr Tim Davis; do you agree?---Yes, well, we didn't have much of a conversation with Glenn. I think I saw him on the way out and asked if he wanted coffee because I was going to try and get an opportunity to talk to him, but he just kept moving on, so the next point of contact was the telephone call with Tim. And when you called Tim, not only did you say to him, "What the hell are you guys doing at the gallery," you told him that the gallery was your site?---Sorry? You told him that the gallery was your site?---No, no. I told him that we were on-site and we had had a long association. Tim was aware of all that. Yes. And you made it clear that you considered it to be your site and that Delta should not be there; correct?---Well, no. No. I wanted to know why Delta were there, and again, it goes back to the fact that we - we've found out that they were there and we hadn't been given the same opportunity, so that's - that's where that stemmed from. Yes. And you found out not only that they were there, but they had been awarded a contract without you knowing about it; correct?---Well, they hadn't been awarded a contract at that point, but they were certainly going to be tendering on the contract and everyone that was in attendance at the meeting was being advised that BMS that the BMS vendor was Delta for the National Gallery. But you're not prepared to accept you were annoyed about that?---Yes, I was a bit annoyed about that. Yes. 174 During cross-examination, Mr McEvilly admitted to making the remark, "what the hell are you guys doing here?". However, there was a disagreement regarding who that remark was directed to. The ACCC disagrees with the respondents' submission that it was directed towards Mr Glenn Davis during their encounter at the Fairfax gallery. Instead, the ACCC argues that the parts in bold above of Mr McEvilly's cross-examination indicate that the words were said to Mr Tim Davis during the subsequent telephone conversation on 9 October 2019, not Mr Glenn Davis at the NGA prior to that telephone conversation. I am unable to accept the respondents' submission that this question and answer comes close to establishing that Mr McEvilly said anything like "what the hell are you guys doing here" to Mr Glenn Davis at the NGA. 175 At 1.32 pm on 9 October 2019, Mr McEvilly called Mr Davis. At 1.53pm on 9 October 2019, Mr Davis returned Mr McEvilly's phone call and they had a conversation by telephone. The contents of this short telephone conversation is hotly disputed. The version that each side advances is consistent with their case and inconsistent with the case for the other side. 176 On the account given by Mr McEvilly in his first affidavit, he made the telephone call, which was returned by Mr Davis 20 minutes later, to ask what representatives of Delta were doing at the site inspection at the NGA so that he could better understand whether Delta had a contract to perform maintenance works for the Honeywell BMS. He said he recalled Mr Davis telling him that they had priced some of the repair work, but had not yet received any orders. He denied the proposition put to him in cross-examination that he considered the NGA to be his site and that Delta should not be there, and maintained that he wanted know why they were there and why LES had not been given the same opportunity as Delta to tender. Mr McEvilly understood those in attendance at the site meeting were advised that the BMS vendor for the NGA was Delta. He also described wanting to know if Delta had any contacts at the NGA. He accepted in cross-examination that he was a bit annoyed about the situation, but denied that he had said to Mr Davis that it was pretty ordinary behaviour by Delta. When asked, he said that he did not recall the discussion concluding with Mr Davis suggesting that the two men catch up for a coffee, doubting that would have happened as that is the last thing he would have been thinking about because he was pretty worked up, or moderately worked up, and probably not very happy at that point. He also denied that he was extremely worked up, or that he had sworn at Mr Davis. 177 Mr Davis made no mention of the 9 October 2019 telephone conversation in his s 155 examination. The respondents deny it has any significance. In his affidavit, Mr Davis says that he does not agree with Mr McEvilly's account of the conversation and instead deposes to a significantly different conversation taking place. Mr Davis says that Mr McEvilly was angry with him and gave an account of the conversation in the following terms at [81] of his affidavit: To the best of my recollection, this was the first time I had spoken to Tony on the phone for years. Tony describes this conversation in paragraph 40 of his first affidavit. I do not agree with Tony's description of our conversation. As soon as Tony picked up the phone he sounded angry. The conversation I had with Tony was to the following effect: [Mr McEvilly]: Timmy bloody Davis, what the fuck are you up to? [Mr Davis]: G'day Tony, I'm not sure what you mean. [Mr McEvilly]: What are you fucking blokes doing at the gallery? You know that is my site! [Mr Davis]: We are pricing the Honeywell maintenance contract, but it's early days and we haven't received any order yet. It's an opportunity that came to us. We haven't been asked to look at anything to do with the ALC System or anything down that end of the gallery. [Mr McEvilly]: That's ordinary from you blokes. You should've let me know. [Mr Davis]: Look mate, I can tell you've got the shits. After the maintenance contract is sorted out by the Gallery, let's catch up for a coffee. 178 Mr Davis was vigorously cross-examined about his account of the 9 October 2019 telephone conversation with Mr McEvilly. A number of propositions were put to him challenging the logic of what he said had taken place and in particular what he gave as his account of what he said to Mr McEvilly. That cross-examination was effective in rendering Mr Davis' account considerably less credible than the account given by Mr McEvilly, for the following reasons: (a) although, on his account of it, the conversation "should have been" memorable, he did not mention it during his s 155 examination just over 12 months later, nor the prior conversation with his brother on 1 October 2019 pertaining to the site visit and Mr McEvilly, casting a real doubt on the accuracy or reliability of his recollection at the time of the trial, which was reinforced by the next point; (b) he accepted that suggesting to Mr McEvilly that they have a coffee after the Honeywell BMS maintenance contract (also referred to as the maintenance and service contract) was "sorted out" by the NGA, that was, at a time when he saw that maintenance contract as being a stepping stone to winning the BMS upgrade tender - to which may be added that it was clear that Mr McEvilly was of the same view about that advantage, such that this must have been reasonably obvious; (c) he regarded that maintenance contract as a key competitive advantage to Delta; (d) even later in October when Delta had commenced doing that work, and the written service and maintenance contract had been signed by him, he had been very nervous about the prospect that it might not be countersigned by the NGA and was concerned at that later time that it was not too late for the NGA to take that contract away from Delta and give it to Schneider or to LES; (e) the situation was even more tenuous on 9 October 2019, because he was yet to hear whether the Delta proposal for that contract had been accepted; (f) if he told Mr McEvilly on 9 October 2019 that Delta was pricing that contact, there was possibly a real risk that Mr McEvilly would try to "swoop in" and undercut Delta on that contract, after initially denying that there was any such risk; (g) he did not just tell Mr McEvilly that he was pricing the contract, but, on his account, made it clear that the contract had not been sorted out; (h) if he had said that to Mr McEvilly, he would have been making it absolutely clear to his competitor that Delta was trying to secure that contract, in circumstances when on his account, Mr McEvilly was angry at him and said that the NGA was his site; (i) the reason behind Mr McEvilly calling Mr Davis, on Mr Davis' account, was that he was angry with him for trying to win business at the gallery, such that it was inherently unlikely that an offer to have coffee to "clear the air" would have been well received by Mr McEvilly, especially in circumstances where Mr Davis would be effectively telling him "Let me sort out the maintenance contract and get that settled with the gallery and then we will have a coffee", because it would be in effect telling Mr McEvilly to "let me win more business at the gallery and then we will have a coffee", noting that this is the very thing that "enraged" Mr McEvilly in the first place; (j) if it was Mr McEvilly's view that the site did indeed belong to him, it would have been an incredibly foolish thing for Mr Davis to do as it would tip Mr McEvilly off as to a commercial opportunity that Delta was pursuing at the NGA, in circumstances where it was reasonably common knowledge in the BMS industry that there would be an opportunity in the near future to replace the Honeywell BMS, and he would assume that Mr McEvilly and other competitors wanted to win that work; (k) he would assume that Delta's competitors would also form the view that winning the maintenance contract was a stepping stone to winning the BMS upgrade; (l) it would be foolish to tell a competitor that an important stepping stone at the NGA was up for grabs; (m) on his account, the offer of a coffee was an attempt to clear the air; (n) on his version of the conversation, he was foolishly telling a key competition of his critical commercial opportunity, notwithstanding that Mr McEvilly was angry, that he was trying to clear the air by offering him a coffee, but would only have that coffee once he succeeded in winning that maintenance contract. 179 The above makes clear that, despite Mr Davis' denials, his account of the 9 October 2019 telephone conversation with Mr McEvilly is simply not credible and cannot be accepted. A further problem for the respondents, identified by the ACCC, is that the content of the call asserted by Mr Davis is that it formed one of the reasons for arranging the 18 December 2019 meeting with Mr McEvilly. That is, it was on his mind for over two months. Yet he did not mention this during his s 155 examination, conceding in cross-examination that it should have been a memorable event on his account of what took place. 180 A judgement call has to be made as to which version is more probable. The logic and sequence of events much better supports Mr McEvilly's account. I therefore accept that account over that given by Mr Davis. It follows that I am unable to accept that this conversation formed any part of the reason for Mr Davis arranging for the meeting that took place between the two men on 18 December 2019. 181 At 2.02 pm on 9 October 2019, Mr McEvilly called Mr Hart, a director of Control & Electric. Mr McEvilly and Mr Hart are friends and speak on a regular basis. During cross-examination, Mr McEvilly stated that he and Mr Hart would meet up for coffee approximately once a month which contrasts with the relationship between Mr Davis and Mr McEvilly, highlighting the inherent unlikelihood of Mr McEvilly and Mr Davis arranging to meet over a coffee without there being some purpose in mind, or that either would seek to do so without some credible reason. 182 At 3.35 pm on 9 October 2019, two hours after his conversation with Mr Davis, Mr McEvilly emailed Mr Mandy, the Head of Building Services at the NGA (also referred to by Mr McEvilly as the Head of the Maintenance Division at the NGA). In terms, by this email, Mr McEvilly was inquiring about the Honeywell BMS upgrade and requesting an opportunity to provide a competitive bid for the work, making no reference at all to the Honeywell service and maintenance contract. At 7.54 am the next day, 10 October 2019, Mr Mandy forwarded Mr McEvilly's email of 9 October 2019 to Mr Xirakis (Head of Capital Works at the NGA, copied to Mr Hanns). Mr Mandy said his preference was "that we give Tony the opportunity to see if he can, in the first instance, take control of the maintenance and day to day operation of the Honeywell system, and then as needed involve both companies to provide pricing for the replacement of the Honeywell system or go to the market?" This email was therefore canvassing with Mr Xirakis both giving LES a chance to compete for the maintenance contract for the existing Honeywell BMS, and the options of either a limited or open tender for the BMS upgrade. That is, Mr Mandy was going further than the request expressly made by Mr McEvilly. 183 There is an issue relating to Mr McEvilly's 9 October 2019 email raised by the respondents. They submit that Mr McEvilly also complained to the NGA about the award of the Honeywell service and maintenance contract to Delta. The ACCC counters this by submitting that there is no mention of the Honeywell service and maintenance Contract in the email from Mr McEvilly to Mr Mandy. The respondents reply by submitting that Mr Davis did not once tell Mr McEvilly about the upgrade contract, pointing to a series of evidence said to support their submissions, namely that Mr Mandy's email sent the next day refers to the service and maintenance contract as well as the BMS upgrade contract, and during the telephone conversation Mr Davis said he also mentioned the maintenance contract. The problem for the respondents with reliance on this evidence is that it is Mr Mandy who refers to the service and maintenance contract, not Mr McEvilly; and I have already rejected Mr Davis's account of the 9 October 2019 telephone conversation. 184 I infer that Mr McEvilly became aware of the awarding of the service and maintenance contract to Delta, and had been advised by someone, most likely other than Mr Davis, about Delta also being approached about the BMS upgrade, as noted above. While Mr McEvilly was annoyed about the service and maintenance contract, there is no reason to think that he considered anything could be done about that. There is no suggestion that he was aware that the service and maintenance contract had not in fact been formally let to Delta at that time. The email he sent to Mr Mandy suggests he was concerned that this not be repeated with the BMS upgrade contract, and wanted an opportunity to compete. Mr Mandy had evidently misread Mr McEvilly's email as referring to both the service and maintenance contract and the BMS upgrade contract, presumably because he knew that the former had not been finalised and therefore, unlike Mr McEvilly, thought it was still in play. I therefore reject the respondents' submission about Mr McEvilly's 9 October 2019 email also raising the service and maintenance contract. 185 The former reference in Mr Mandy's 10 October 2019 email to Mr Xirakis, that is LES being given a chance to compete for the maintenance contract for the existing Honeywell BMS, evidently was not accepted because the following day, 11 October 2019, Mr Xirakis sent an SMS message to Mr Davis to inform him that the NGA had endorsed Delta to be the NGA's service and maintenance provider for the Honeywell BMS. 186 The latter reference in Mr Mandy's 10 October 2019 email to Mr Xirakis, to the choice of Delta and LES being given an opportunity to "provide pricing for the replacement of the Honeywell system or go to the market" is relied upon by the ACCC as evidence that, contrary to the case for the respondents, the NGA did have in contemplation the possibility of a closed tender process for the replacement of the Honeywell BMS, involving only those two contractors, rather than a full competitive tender, which ultimately did take place. I accept that this is so. 187 On 16 October 2019, the proposed service and maintenance contract for the Honeywell BMS was emailed to Mr Davis by Ms Aimee Dagseven, the capital works and project coordinator at the NGA. 188 On 18 October 2019, a "Delta start up meeting" was held at the NGA. The attendees were Mr Davis, Mr Nugraha, Mr Middleton (Delta's Service Manager at the time) and Mr Atkinson (Delta's Account Manager at the time) as well as Mr Mandy, Mr Hanns, Mr Andrew McRae (a member of the facilities and maintenance team at the NGA), Mr Xirakis and Ms Dagseven. 189 After that meeting, Mr Davis spoke with Ms Dagseven regarding the proposed service and maintenance contract for the Honeywell BMS. 190 On or around 25 October 2019, Mr Tava Sitauti, a Principal Project Delivery Consultant with Steensen Varming, an engineering firm, told Mr Nugraha that a representative of Schneider, a competitor of LES and Delta in the supply of BMS in the ACT, had rung the NGA requesting tender documents for the Honeywell BMS Upgrade. Mr Nugraha relayed this information to Mr Davis via a WhatsApp text message the same day. Mr Davis was concerned by the news that Schneider had approached the NGA. After receiving Mr Nugraha's WhatsApp message regarding Schneider, Mr Davis telephoned Mr Xirakis trying to get a signed copy of the service and maintenance contract as soon as possible. Mr Davis was in a rush to get the service and maintenance contract signed because he believed that, if Delta had the signed service and maintenance contract, that would be a significant advantage if the BMS upgrade was put out to a tender that was not limited or closed. Necessarily that would also be an advantage for a limited or closed tender as well. 191 On 28 October 2019, Ms Dagseven emailed Mr Davis an updated version of the proposed Honeywell service and maintenance Contract. Mr Davis signed the contract and emailed a signed copy to Ms Dagseven later that day. This copy of the Honeywell service and maintenance Contract was apparently never countersigned by the NGA; rather, as described below, Mr Davis signed another copy four weeks later, on 25 November 2019. 192 After Mr Davis returned the signed service and maintenance contract to Ms Dagseven on 28 October 2019, he remained nervous that the NGA had not returned a signed contract. He thought there was a prospect that the NGA might change its mind and engage LES to perform service and maintenance on the Honeywell BMS. Plainly enough, Mr Davis' confidence that Delta would win the BMS Upgrade work was slipping. 193 On 1 November 2019, Mr Sitauti informed Mr Davis that he would be working on the specification for the Honeywell BMS Upgrade. Mr Sitauti said he wanted to include all of Delta's technical advantages over the ALC BMS (that is, the LES product). The role of Steensen Varming in the BMS Upgrade Tender process, which was assigned to Mr Sitauti, was "to develop the functional requirements for the new BMS and to prepare the technical specifications reflecting those requirements that would be issued to tenderers as part of the request for tender". 194 On 8 November 2019, Mr Nugraha informed Mr Davis by WhatsApp that a "Little bird told me Nathan Brownell had meeting with NGA". Nathan Brownell was employed by Schneider and was formerly employed by Delta. The "little bird" referred to in the message from Mr Nugraha to Mr Davis was Mr Wilcomes. 195 On 25 November 2019, Ms Dagseven provided Mr Davis with a hard copy of the Honeywell service and maintenance contract at a meeting with Mr Davis and Mr Hanns, which had been signed by the NGA. The contract price was $28,314. Mr Davis countersigned the Honeywell service and maintenance contract. 196 In September and October 2019, Mr Davis had appreciated that there might possibly be difficulties in the future in integrating a Delta BMS at the NGA with the ALC BMS in the NGA Extension. As previously noted, I am not satisfied that the evidence establishes that this ever rose higher than a possibility, noting that such a possibility would always be on the cards for whoever installed a replacement BMS in the original NGA while the ALC BMS remained in the NGA extension. 197 When Mr McEvilly found out that Delta had been awarded the Honeywell service and maintenance contract, he was "surprised" and "disappointed" because he felt it was possible that it gave Delta an advantage with the upcoming upgrade to the Honeywell BMS. 198 Mr Davis did not attempt to contact Mr McEvilly in September, October, or November 2019 to obtain information for the purposes of preparing Delta's proposal to replace the Honeywell BMS. This suggests that the possibility of integration or interface problems were not seen by him as being any major concern, or at least not such as to require making any approach to Mr McEvilly during that period.

Events of December 2019 199 As at 2 December 2019, LES was a real and credible competitive threat to Delta for the BMS Upgrade tender, and a competitor that Delta had to take seriously. 200 On 2 December 2019, Mr Sitauti called Mr Nugraha: (a) to tell him Mr Mandy and Mr Xirakis had decided to take the BMS Upgrade to a competitive tender; (b) to tell him NGA had initially wanted three tenderers - Schneider, Delta and LES - but there would now only be two tenderers, Delta and LES; (c) to tell him that he (Mr Sitauti) would be preparing the technical specification for the BMS Upgrade; (d) to seek from Mr Nugraha some documents that would highlight the differences between the Delta BMS and the ALC BMS; and (e) to tell Mr Nugraha that he wanted Delta to win the BMS upgrade tender. 201 Mr Nugraha relayed the information he had received from Mr Sitauti on 2 December 2019 to Mr Davis that same day via the following five immediately consecutive WhatsApp text messages sent in the space of some two minutes between 4.42 pm and 4.44 pm. It is not in dispute that "Tava" is a reference to Mr Sitauti, "Mark" is a reference to Mr Mandy, and "Nick" is a reference to Mr Xirakis. What was happening was that Mr Sitauti was conveying to Mr Nugraha information about the views of senior NGA officials about the BMS upgrade. The texts were as follows: [4.42 pm]: Tava just rang. Mark and Nick wanted to take the NGA project cutover to tender [4.42 pm] Initially they wanted Schneider, ALC and us. [4.43 pm] But now only us and Tony. [4.43 pm] Tava asked if we can send some documents that would highlight out differences to ALC. [4.44 pm] As he wants us on board. 202 Mr Davis regarded the information from Mr Sitauti as reliable. Mr Nugraha's WhatsApp messages were the first time that Mr Davis had been told that there would be a competitive tender process for the replacement of the Honeywell BMS, confined to two tenderers, Delta and LES. Mr Davis and Delta also became aware from this time that that tender process envisaged by the NGA would involve an RFT (request for tender) mode of tender specification. When Mr Davis became aware that there would be even this limited competitive tender process, he regarded it as bad news for Delta. Mr Davis also expected from this time that any question about the extent to which integration or interface works would be required between the ALC BMS and any new BMS would be resolved as part of the tender process. 203 On 3 December 2019, Mr Sitauti attended a stakeholder consultation meeting with Manteena and representatives of the NGA. The same day, Mr Sitauti called Mr Nugraha and asked him to provide some dot points setting out the advantages of the Delta BMS when compared to the ALC BMS, consistently with the fourth text message from Mr Nugraha to Mr Davis on 2 December 2018. Also the same day, Mr Nugraha spoke with Mr Davis, relayed his conversation with Mr Sitauti, and discussed the content of Mr Nugraha's WhatsApp messages of 2 December 2019. Mr Nugraha also consulted Mr Davis about an email to be sent to Mr Sitauti, by sending a draft email setting out the requested dot points as to the advantages of Delta over ALC as well as some specification language. Mr Davis asked Mr Nugraha to add an additional dot point (point 4) about the ARCnet protocols used by the ALC BMS in contrast to BACnet, and approved Mr Nugraha sending the amended email. Mr Nugraha sent the email to Mr Sitauti later that day. Mr Davis considered Mr Sitauti to be a reliable source of information in relation to the BMS upgrade in October and December 2019. 204 On 10 December 2019, Mr Sitauti called Mr Nugraha and arranged to meet with him to discuss the BMS upgrade tender specification that he (Mr Sitauti) was drafting. The same day, Mr Nugraha informed Mr Davis that he was meeting with Mr Sitauti that week to discuss the upgrade specification that Mr Sitauti was writing for the BMS upgrade tender. 205 On 12 December 2019, Mr Sitauti and Mr Nugraha met. Mr Nugraha showed Mr Sitauti the network architecture and maintenance backup plan that Delta had put together. The same day, Mr Nugraha emailed Mr Sitauti, copied to Mr Davis, further information to include in the specification brief for the NGA's BMS Upgrade Tender. Mr Davis was asked about this meeting in cross-examination. 206 During cross-examination, Mr Davis confirmed that he knew Mr Nugraha had been assisting Mr Sitauti in developing a client brief that included technical specifications beneficial to Delta from December 2019 to January 2020. His cross-examination evidence on this issue is as follows (emphasis added): You're aware that there was further communication between Tava and Hendra in relation to this issue on - a little later in December?---Sorry. I don't recall that, sorry. You recall that there was a meeting at Delta's offices on 16 December that was attended by Tava, Hendra and yourself?---No. I didn't attend. [NB. The reference to 16 December appears to be an error, whether in the question or in the transcription, as the meeting that Mr Nugraha deposed to took place on 12 December 2019] Well, I suggest you did attend, albeit briefly, and you briefly spoke with Tava?---Maybe a greeting. I don't recall being part of any technical conversation. A greeting and a short presentation of network architecture, I suggest. A greeting and, "Hello, how are you?" And, "I have got work to do." And you were eager to see Tava at that time, weren't you?---Sorry, rephrase eager. You wanted to see Tava on 16 December 2019. You made a point of joining the meeting to say hello to Tava?---I didn't arrange the meeting, if that's the question. That's not the question. I appreciate you didn't arrange to meet him, but you made sure you stopped by, correct?---I actually don't recall speaking to Tava at that meeting. I may have done. I just don't recall it, I'm sorry. … … Delta's offices typically close on the Friday the week before Christmas, correct?---That's typical, yes. And after that, Hendra [Mr Nugraha] went away to Indonesia for a holiday?---He may have done, yes. I'm not disputing that. You may or may not recall that. He arrived back in late January, and in the latter part of January, he worked with Tava on a client brief. Do you recall that?---Yes. And that was a client brief for the NGA?---Yes. And you were aware that he was doing that at the time?---Yes. And you know also that he was working with Tava on the tender specifications for the BMS upgrade at the time?---Yes. And you know that just as you did in December 2019, in January 2020 he was continuing to assist Tava by proposing language for the BMS - sorry, for the NGA client brief and for the BMS upgrade technical specification that would favour Delta?---Advantage. Yes. That would advantage Delta?---Yes. But you were aware of that?---Yes. You were aware of it at the time?---Yes 207 On or about 16 December 2019 or 17 December 2019 (I find below it was 17 December 2019), Mr Davis called Mr McEvilly and they arranged to meet on 18 December 2019 at the Tulips Café in Canberra. Beyond the fact of agreeing to meet, the content of this conversation is in dispute. That dispute and its resolution takes place later in these reasons at [235]-[253]. 208 Telephone records for 18 December 2019 indicate that: (a) at 10.02 am, Mr McEvilly called Mr Davis; the duration of that call was 26 seconds; (b) at 10.03 am, Mr Davis called Mr McEvilly; the duration of that call was 61 seconds; (c) at 10.03 am, Mr McEvilly called someone else; the duration of that call was 6 minutes and 47 seconds. 209 On 18 December 2019, Mr Davis and Mr McEvilly met at the Tulips Café. The contents of their discussion is in dispute. Again, that dispute and its resolution takes place later in these reasons at [328]-[385]. 210 Delta's offices typically close on the Friday the week before Christmas, which would have been the Friday of that week, 20 December 2019. 211 In December 2019, Delta was desperate to win the BMS upgrade tender, falling short of being essential for Delta's business, as reflected in the conduct in providing tender specification information to Mr Sitauti for use in preparing the tender documents. 212 Mr Davis and Mr McEvilly did not speak again about the BMS upgrade after the BMS upgrade tender documentation was released, or at all.

Events of January 2020 onwards 213 The NGA Switchboard Project went out for tender on 29 November 2019. 214 In January 2020, Manteena engaged LES to complete the NGA Switchboard Project. 215 On 21 January 2020, Mr Sitauti told Mr Nugraha that Steensen Varming would be rewriting the client brief and the technical specification for the tender for the BMS upgrade to suit Delta. The same day, Mr Nugraha relayed this "good news" to Mr Davis. 216 Between 22 and 28 January 2020, Mr Sitauti and Mr Nugraha emailed each other about the specification that Mr Sitauti was preparing for the NGA BMS upgrade project. Among the emails sent in that period was an email from Mr Nugraha to Mr Sitauti on 23 January 2020 copied to Mr Davis and attaching "Client-Brief BMS Upgrade V2 Received - Manteena DBA markup.docx". In December 2019 and January 2020, Mr Davis was aware that Mr Nugraha was assisting Mr Sitauti to adopt language in the tender specification documents that would be in the interests of Delta. 217 On 6 March 2020, Mr Jason Bills of Manteena sent Mr McEvilly a "show cause notice" formally advising him that LES was in default of its contract in relation to the Switchboard Project for not submitting shop drawings that were due for submission on 28 February 2020 and 4 March 2020. On 12 March 2020, Mr McEvilly and Mr Mitton spoke on the telephone during which they discussed the status of the shop drawings, Mr McEvilly's concerns about the requests and follow ups coming from the NGA, and Mr McEvilly's recollection of his call and meeting with Mr Davis. 218 On 16 March 2020, Mr McEvilly met with Mr Mitton at Manteena's office during which Mr McEvilly recalled his 18 December 2019 meeting with Mr Davis. 219 On 25 March 2020, Mr McEvilly received a telephone call from Mr Mitton. Mr Mitton gave Mr McEvilly the details of an employee of the ACCC named Joseph Chan, and asked Mr McEvilly to call Mr Chan. Mr McEvilly called Mr Chan by telephone at about 3.25 pm. This was Mr McEvilly's first contact with the ACCC about his allegations against Mr Davis and Delta. 220 On 16 May 2020, LES completed the NGA Switchboard Project. 221 On 24 July 2020, the BMS upgrade tender went out to market. 222 The BMS upgrade tender requested separate pricing and description of a fully comprehensive maintenance program for a period of 5 years and included the provision of a high level interface to the ALC BMS, being the existing and continuing BMS for the NGA Extension, and the ability to display graphic images from the ALC BMS. The scope of the BMS upgrade tender included an ongoing maintenance contract and the provision of operation and maintenance manuals. 223 Northrop, and not Steensen Varming, ultimately prepared the technical specification included in the BMS upgrade tender. 224 On 13 August 2020, Manteena conducted a site inspection for the tenderers. The attendees were Mr Mark Wright and Mr Danny Chak from C&E, Mr McEvilly and Mr Nugraha. 225 In August 2020, Manteena issued seven "RFT - NGA BMA Upgrade" addendums. 226 On 27 August 2020, C&E submitted a bid to the NGA in response to the BMS upgrade ender. The amount for which C&E tendered was $1,052,330 (excluding GST), or $1,157,563 (including GST). C&E allowed the sum of $14,520 for interface with the meters in the NGA Extension, and $3,300 for the interface with the BMS alarm panel in the NGA Extension. 227 On 28 August 2020, Delta submitted a bid to the NGA in response to the BMS upgrade tender. The amount for which Delta tendered was $745,300 (excluding GST), or $819,830 (including GST). 228 On 28 August 2020, LES submitted a bid to the NGA in response to the BMS upgrade tender. The amount for which LES tendered was $1,070,465 (including GST). LES allowed the sum of $2,310 for interface with the meters in the NGA Extension, and made no allowance for the interface with the BMS alarm panel in the NGA Extension because it was not necessary for LES to redo that work. 229 C&E (and not Delta or LES) was successful in relation to the BMS upgrade tender. 230 On 13 November 2020, Mr Davis received a notice from the ACCC issued under s 155(1)(c) of the CCA (s 155 Notice), which required him to attend an examination before the ACCC. Before attending the s 155(1)(c) examination, Mr Davis retained Mr Temby and Maddocks to act for both himself and Delta. Maddocks retained Mr Bannan of counsel to act for both Delta and Mr Davis. Mr Temby, Mr Bannan and Maddocks continue to represent Delta and Mr Davis, including in this proceeding. 231 Before attending the s 155(1)(c) examination, Mr Davis met with both Maddocks and Mr Bannan. 232 Mr Davis attended a s 155(1)(c) examination before the ACCC on 9 December 2020. By the time he attended that examination: (a) he understood the matters set out in paragraphs 5, 6, 7 and 8 of the s 155 Notice, set out below, and had given a lot of thought to those matters; (b) he had also given a lot of thought to the 18 December 2019 meeting with Mr McEvilly and did his best to recall what was said at that meeting and to recall the events that led up to that meeting. 233 Paragraphs 5, 6, 7 and 8 of the s 155 Notice are as follows (noting that the reference to CAU means a contract, arrangement or understanding): [5] On or around 18 December 2019, a Representative of Delta attempted to make or induce the making of, a CAU [contract, arrangement or understanding] with a Representative of LES in relation to the BMS Upgrade Tender. [6] The attempted CAU contained a Cartel provision that had the purpose of ensuring that in the event of a request for bids for the BMS Upgrade Tender: i. Delta would submit a bid but LES would not, or ii. both Delta and LES would each submit a bid and proceed with their bids of the basis that Delta's bid would be more likely to be successful than other bids. [7] The conduct described in paragraphs 5 and 6 occurred in circumstances where Delta and LES are likely to be in competition with each other for the supply of BMS upgrade works at the NGA. [8] By engaging in the conduct described in paragraphs 5 and 6 in the circumstances described in paragraph 7, Delta attempted to make or attempted to induce LES to make, a CAU containing a Cartel provision in contravention of section 45AJ of the CCA.

List of issues 234 In addition to the contested facts identified above, the parties collaborated and produced a list of 15 issues that they both, or the respondents alone, contend I am required to resolve, noting that a 16th issue does not require resolution because the respondents do not press a pleaded contention in the alternative that s 45J of the CCA does not apply by reason of the anti-overlap provision in s 45R. A number of the lesser facts and issues in dispute have already been addressed in the preceding major section of these reasons by reference to the competing arguments. In the next section I address, heading by heading, the remaining and more substantial facts and issues in dispute as identified by the parties and addressed by them in written and oral submissions.

Findings on the remaining and key facts and issues in dispute

What was said during the telephone conversation between Mr Davis and Mr McEvilly on 17 December 2019 235 It is common ground that Mr Davis rang Mr McEvilly to organise a meeting earlier in the week before their meeting took place on Wednesday, 18 December 2019. I have already found that this telephone conversation took place on 17 December 2019, the day before the meeting that was arranged in that conversation. However, why that call was made and what was said is disputed, and is an issue that the parties agree needs to be resolved by the Court. 236 Both Mr McEvilly and Mr Davis deposed to their version of when the call took place and what was said in their affidavits. Both adhered to their account in the witness box and were cross-examined. 237 Mr McEvilly's evidence in his first affidavit about this telephone conversation was as follows: [41] On Monday 16 December 2019, 1 received a telephone call from Tim [Mr Davis], during which we had a discussion in words to the following effect: [Mr Davis]: Hey mate, I would like to get together with you to talk about the upcoming BMS upgrade tender at the NGA. [Mr McEvilly]: Look I am happy to meet, I am interested in hearing what you have to say." [Mr Davis]: Let's meet at Pialligo at the Tulips cafe on Wednesday at 10 o'clock. [42] I understood Tim's reference to "BMS upgrade" to be a reference to an upgrade to the Honeywell BMS in the Original NGA and not the ALC BMS in the NGA Extension. I understood this because the NGA had been talking about upgrading the Honeywell BMS for some years. The ALC BMS installed in the NGA Extension is newer and had been relatively trouble free, so I did not think the NGA was likely to want to upgrade the ALC BMS. The NGA had not suggested that it would. [43] I was surprised that Tim knew that the Honeywell BMS upgrade was going out for tender as I had not formally heard anything about that at this stage. I agreed to meet with Tim because I was interested in obtaining more work at the NGA and finding out more details about the tender. I was curious what Tim knew. [44] After the telephone call, I created a reminder in the calendar on my phone for this meeting, as it is my usual practice to create reminders for all of my appointments. A screenshot of the meeting invite that I saved into the calendar on my phone is annexed to this affidavit and marked AJM-3. 238 In his evidence in cross-examination, Mr McEvilly denied that he was expecting a call from Mr Davis as a result of the prior telephone conversation between the two men on 9 October 2019. He confirmed that he was interested in what Mr Davis had to say on the topic of the upcoming BMS upgrade tender at the NGA, because he was interested in what was going on. He agreed that he did not think there was anything illegal about that meeting at the time of this call because nothing had been said at that point; and that he made it plain that he was happy to meet with Mr Davis and to listen to what he had to say. He confirmed that Mr Davis had mentioned the BMS upgrade, and that he had immediately agreed to meet. In answer to the proposition that he would have told Mr Davis that he was not prepared to meet if he had thought there was anything illegal or wrong with meeting, Mr McEvilly said that until he knew what Mr Davis had to say, he would not have known whether there was anything illegal or not, and that he wanted to know what he had to say, and to know what he knew. Mr McEvilly repeated that he wanted to know what Mr Davis knew about the tender and what he could tell him about what was going on at the NGA. 239 In response to further cross-examination putting propositions that Mr McEvilly knew that Mr Davis might want to talk about some sort of potential subcontract, or some less formal type of arrangement whereby they might provide services to each other, or that Mr Davis might want to talk about an arrangement of the type that Delta had with C&E, Mr McEvilly described the questions as involving remarkable foresight on the part of Mr Davis, which in context was a denial of each proposition. Mr McEvilly said that he did not agree that he knew that Mr Davis might want to discuss some form of relationship between Delta and LES. 240 Mr McEvilly agreed that it was possible that the NGA might have wanted to upgrade the ALC BMS, which was, in context, part of the reason he wanted to meet with Mr Davis and find out what he knew. He said that it was his preference that the ALC BMS not be replaced so that there were two BMSs operating side by side, and would have been happy with one BMS operating across the whole building. 241 Mr Davis' evidence in his affidavit about this telephone conversation was first given in response to Mr McEvilly's account, before giving his own version, which he said took place on 17 December 2019, rather than 16 December 2019, relying upon telephone records. The reference in Mr McEvilly's affidavit to him creating a calendar reminder, which was annexed, did not assist in supporting his assertion that the telephone conversation took place on 16 December 2019. That depended only upon his memory. Mr Davis' evidence that the call took place the next day, 17 December 2019, was supported by an entry in a telephone call charge record produced by him. I find that, on the balance of probabilities, the conversation took place on 17 December 2019. However, in my view, nothing turns on this. The resolution of this difference does not turn upon a superior or more reliable memory. Mr Davis could not remember whether the telephone conversation took place on 16 or 17 December 2019 at the time of his s 155 examination, as he confirmed in his evidence in cross-examination. The difference was due only to Mr Davis having obtained access to better and more reliable documentary records from his carrier, being independent business records. 242 In his affidavit, Mr Davis denied that he said any words to the effect that he wanted to speak to Mr McEvilly about the upcoming BMS upgrade tender at the NGA, and that he had not mentioned that during his phone call with him on that day, or at the meeting the next day, 18 December 2019. 243 Mr Davis said that he called Mr McEvilly on 17 December 2019 to arrange a meeting with him. He said that he had told Mr McEvilly on 9 October 2019 that he would call him after the Honeywell service and maintenance contract had been sorted out to catch up for a coffee. I have already rejected that account of the telephone conversation on 9 October 2019: see [105] above. It follows that I reject Mr Davis' explanation for making the call on 17 December 2019. 244 Mr Davis further deposes that he wanted to meet with Mr McEvilly to clear the air following the 9 October 2019 telephone conversation, and that he did so because he thought it was in his commercial interests. He said that he thought he was going to win the BMS upgrade tender and that it was likely that that integration or interface work would be required (between a new Delta BMS and the continuing ALC BMS). He said he did not know whether he would need to engage LES to assist with that work, but thought it was likely that Delta would need to engage LES and wanted to have that option. He gave as two further reasons for seeking the meeting that he did not want the relationship with Mr McEvilly to continue to be hostile given that Mr McEvilly had helped to get his first job; and also wanted to make it clear to Mr McEvilly that he rejected any suggestion that the NGA was his site or that Delta should make way for LES. To the extent that this evidence relies upon the version of the account that Mr Davis gave of the 9 October 2019 telephone conversation that I have rejected, this account cannot be accepted either. The balance of his evidence is intended to depose to his state of mind, in support of his account of the conversation set out below. 245 Mr Davis also sets out what he says he did not intend in seeking the meeting, which anticipates the next conflict as to what was actually said at that 18 December 2019 meeting, and what his intentions were in saying what he did. It will be more useful to address that in the context of the competing accounts of the meeting conversation itself, not least because it is not coherent, in considering what findings should be made about what was said in the 17 December 2019 telephone conversation, to take into account assertions as to what Mr Davis did not intend in seeking the meeting. In short, a negative assertion of an uncommunicated state of mind is of little assistance in determining positively what was most likely to have been said. 246 Mr Davis's recollection of the 17 December 2019 telephone conversation in his affidavit is as follows at [126]: I recall the conversation on 17 December 2019 was short and to the following effect: [Mr Davis]: Hi Tony, have you got some time to catch up in the next couple of days for a coffee? [Mr McEvilly]: Yes Tim that sounds good. [Mr Davis]: Great, okay. Does 10 am tomorrow work for you? [Mr McEvilly]: Yes, I can make that work. [Mr Davis]: Alright, well where are you going to be tomorrow morning? [Mr McEvilly]: I'll be at Queanbeyan tomorrow morning. [Mr Davis]: I'll be in the city so why don't we meet somewhere in the middle? I know this coffee shop called Tulips Cafe in Pialligo near the airport. I could meet you there at 10? [Mr McEvilly]: Okay mate, I'll see you there. 247 The key component of the evidence of Mr Davis' cross-examination in relation to the 17 December 2019 conversation is better reproduced than summarised: Now, when you telephone tony on 16 or 17 December, it was only the second time you had spoken by phone in years?---Yes. But on your account in paragraph 126 of your affidavit, you did not, in the course of that phone call, give Tony any explanation for the meeting?---Would you - would - would you like me to look at that? … Do you see paragraph 126?---I do. That's your account before this court as to your conversation with Tony?---It is. And do you see reading that, you don't give Tony, in your account, any reason for the meeting?---No. And nowhere else in your affidavit do you give an account of ever having met Tony for a coffee before?---I don't - I don't think so. And it's just not credible, is it, that there would be no discussion in this unusual phone call as to the purpose of wanting to catch up?---I'm sorry. Can you repeat the question? Yes. It's not believable, is it, that this conversation would occur without any discussion between you and Tony as to why you wanted to meet up?---I disagree. Because in circumstances where this is only the second phone call that you had had with Tony in years, even on your account, he would be, I would suggest, pretty interested to know why you were calling?---I would say the subject of the meeting is was more or less agreed on 9 March - 9 October, sorry. He would want to know, I suggest, what it is that you wanted to discuss particularly in the busy period before Christmas?---You would have to ask Tony. And the true position, I want to suggest to you, is that during the call, what you said was that you would like to get together with Tony to talk about the upcoming BMS upgrade tender at the NGA; that's what you said, isn't it?---That's incorrect. And you said that because you knew that by saying that, it would pique Tony's interest and he would want to meet with you?---That's incorrect. 248 It is clear from both Mr Davis' affidavit, and from the above exchange, that pivotal to the account that Mr Davis gives of the 17 December 2019 telephone conversation is his version of the 9 October 2019 telephone conversation, which has already been rejected. It is that rejected conversation that grounds the respondents' submission that there was no need for Mr Davis to tell Mr McEvilly what the meeting would be about, because it had been foreshadowed over two months earlier, in the 9 October 2019 telephone conversation. Without that evidence being accepted, the argument that there was no need for Mr Davis to tell Mr McEvilly what the meeting would be about falls away. This also supports Mr McEvilly's evidence that the call was unexpected. I therefore accept that Mr McEvilly knew that the meeting had been called by Mr Davis to discuss the BMS upgrade tender because he was told that during the telephone conversation the previous day, 17 December 2019. 249 There is no evidence that there was any reason for Mr McEvilly to expect the call, or its purpose, other than the account that Mr Davis gave that I have rejected. I find that from Mr McEvilly's perspective, the BMS upgrade tender was the only reason why the meeting had been sought by Mr Davis, and that Mr McEvilly was not aware of what was to be discussed in that regard, and had no reason to think that anything improper was involved. However, Mr McEvilly had ample reason to be willing to talk to Mr Davis about the BMS upgrade because of the concern that he expressed in his 9 October 2019 email to Mr Mandy about the opportunity to compete for that contract, and his concern underpinning that email (which was not stated in that email) that he did not want the situation in relation to the service and maintenance contract to be repeated. 250 The ACCC urges the acceptance of Mr McEvilly's version of the 17 December 2019 telephone conversation, and the rejection of Mr Davis' version because: (a) Mr McEvilly's account is credible because Mr Davis' reference to the BMS upgrade tender was certain to pique his interest, cause him to want to know what Mr Davis knew, and explain why he would attend the meeting even though the call was unexpected; (b) it was credible that Mr McEvilly would want to learn what was going on, and he did not think that there was anything illegal or improper in meeting because nothing had been said at that point; (c) by contrast, a number of aspects of Mr Davis's account make it unbelievable; (i) first, on Mr Davis' account, he provides no reason for the meeting and Mr McEvilly does not ask for one, which might be unremarkable if the two men caught up often, but they were not friends and were not in the practice of catching up socially or even for a coffee; (ii) secondly, even on Mr Davis' account, this was only the second time he had spoken to Mr McEvilly by telephone for years; (d) it was therefore not plausible that Mr McEvilly would agree to meet Mr Davis for a coffee on short notice without any explanation as to the purpose of the meeting. 251 The respondents' argument in response is sparse. They submit that nothing turns on the contest as to whether or not Mr Davis mentioned the BMS upgrade tender during the telephone conversation, despite Mr Davis having been quite emphatic that this had not been mentioned by him. The respondents contend that it is significant that on Mr McEvilly's account he was happy to catch up with Mr Davis even after being told about the subject of the meeting, and had said that after the BMS upgrade tender was mentioned he immediately agreed to meet, a submission which curiously seems to invite acceptance of Mr McEvilly's version of the telephone conversation. That is said to be because Mr McEvilly did not see any problem with discussing that tender with Mr Davis. Further, the respondents submit, Mr Davis did not need to identify a reason for meeting, because he had already told Mr McEvilly that he would arrange to catch up for a coffee in the telephone conversation on 9 October 2019 (again, I note that this version of that conversation has been rejected). 252 I am unable to accept the respondents' submission. The question of whether a reason was given by Mr Davis for the meeting taking place, as well as what reason, if any, was given, is significant. The respondents fail to grapple with the cogent points advanced by the ACCC as to why Mr McEvilly's account should be accepted over that of Mr Davis. It is in substance common ground that the 9 October 2019 conversation had not been friendly because Mr McEvilly was not happy with the advantage he perceived Delta having obtained via being invited to carry out maintenance work on the Honeywell BMS. It simply makes no sense for Mr McEvilly to say that a meeting over a coffee would sound good in the absence of a good reason for them to meet, especially in the absence of any habit, pattern or practice of having done so, and my rejection of Mr Davis' version of the 9 October telephone conversation. It is in substance common ground that the 9 October 2019 conversation had not been friendly. 253 I find Mr McEvilly's account of the 17 December 2019 telephone conversation more credible than the version advanced by Mr Davis, much better aligning with the logic and sequence of events. I am comfortably satisfied that the version given by Mr McEvilly should be accepted, and the version given by Mr Davis should be rejected. It follows that I am unable to accept the benign reasons Mr Davis gave for making the call and suggesting the meeting.

Whether, by the time of the meeting on 18 December 2019 between Mr Davis and Mr McEvilly, Mr Davis considered it necessary or desirable to engage with LES in relation to the BMS upgrade

What Mr Davis' purposes were in organising the 18 December 2019 meeting 254 It is convenient to deal with these two issues together, because the question of whether Mr Davis considered it necessary or desirable to engage with LES in relation to the BMS upgrade, which only the respondents contend needs to be resolved, may, if capable of being conclusively determined, be seen to be at least related to his actual purpose or purposes in organising the 18 December 2019 meeting, a question that it is agreed must be determined. 255 Understandably, the respondents would want there to be a focus on Mr Davis not just having a stance in favour of engaging with LES in relation to the BMS upgrade, but also as to this being something that was operative in what he said and did at the 18 December 2019 meeting. That is at the core of his benign explanation for arranging that meeting, both as to what he said, and as to what meaning should be given to what he said, including by inference. His version of events, if accepted, or perhaps more accurately, if not excluded by the ACCC as being sufficiently likely to stand in the way of an adverse finding on the balance of probabilities, is effectively relied upon by the respondents to preclude the adverse findings necessary for any conclusion of contravention. 256 The ACCC's express case is that Mr Davis had no plausible legitimate purpose for arranging the 18 December 2019 meeting, relying upon the following observation made by Beach J in Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222; [2017] ATPR 42-540 at [478] as to inferential fact-finding of the existence of a proscribed arrangement or understanding: … an inference that an arrangement or understanding existed may be drawn from circumstantial evidence that the conduct of the parties exhibits "a concurrence of time, character, direction and result" (R v Associated Northern Collieries (1911) 14 CLR 387 at 400). Where competitors meet without any apparent legitimate purpose, then this may assist in proving the existence of an arrangement or understanding. Further, the presence of parallel conduct may be evidence of an arrangement or understanding, but it is not sufficient in and of itself to reach a conclusion one way or the other. Further, economically irrational behaviour can be indicative of the presence of a cartel. Further, the existence of a motive is a matter that can be taken into account in assessing whether an arrangement or understanding was entered into by parties. 257 The ACCC point to the opportunity given to Mr Davis in cross-examination, by non-leading questions, to identify all the reasons he had for arranging the 18 December 2019 meeting, identifying them in summary as being, as noted above at [178]: (a) to "clear the air" following the telephone conversation that he had with Mr McEvilly on 9 October 2019, in which he characterised Mr McEvilly as being angry; (b) to tell Mr McEvilly that the NGA was not his site, as he asserted Mr McEvilly had said was the case during the 9 October 2019 telephone conversation; (c) to discuss interfacing requirements between the ALC BMS (maintained by LES) and a Delta BMS at the NGA. 258 The ACCC challenges these reasons, and as part of that, aspects of the evidence given in cross-examination in support of each of them, in order to support the ultimate submission that, in keeping with Mr McEvilly's account of the 9 October telephone conversation, and the 18 December 2019 meeting, Mr Davis' evidence as to his purpose in seeking to organise the meeting should not be accepted, flowing into a submission that his account of the 18 December 2019 meeting itself should not be accepted. 259 The respondents suggest that to approach Mr Davis' evidence by reference to these three reasons in turn is to treat them in isolation, rather than to consider his evidence on this topic as a whole, describing the challenge to that evidence as "highly attenuated" and largely limited to pointing to logical flaws. This is sought to be met by the respondents characterising Mr Davis' evidence as reflecting conflicting objectives, being on the one hand to clear the air and thereby improve the prospect of being able to enter into some kind of integration or interface subcontract with LES, but on the other hand to reject the proposition that the NGA was LES' "turf". The respondents submit that the cross-examination ignored those conflicting objectives and sought to address them as if they could be considered in isolation. 260 I am unable to agree with the limitation that the respondents seek to impose upon the cross-examination, evidentiary or submission approach taken by the ACCC, and therefore upon my evaluation of that evidence. I do not accept that the ACCC are in some way disentitled to challenge separately each of the three main purposes of seeking the 18 December 2019 meeting advanced by Mr Davis, or that doing so was in some way weak or ineffective. The ACCC was entitled to seek to discredit each reason, and to rely on the collective effect that this suggested impeachment has on his evidence in relation to the 17 December 2019 telephone conversation, and on his credit more generally, including when it comes to assessing the competing versions of what was said at the 18 December 2019 meeting. 261 In relation to the 17 December 2019 telephone conversation, the collective effect of the purposes Mr Davis advanced might be greater than the sum of the constituent parts, but each part was able to be individually challenged. None of this detracts from the need for the final resting place of the evidence to meet the necessary thresholds to make good the case that the ACCC brings, but the first task is to find that factual resting place. Evidence does not have to be supported or impeached in any particular fashion. 262 The ACCC specifically submits that the Court can and should reject the evidence of Mr Davis, and can do so without taking the further step of finding him to have deliberately lied in the witness box. While expressly not conceding that such a finding is not open, the ACCC submits that the Court would abstain from taking that additional step, in accordance with Smith per Deane J at 271-2. 263 Dealing first with the "clear the air" purpose advanced by Mr Davis, the ACCC argues that this explanation is inconsistent with his s 155 examination, during which he had said, in answer to a question as to what "air" was there to clear at that point in time: Well I know Tony would be as I said disappointed, angry that we had won this contract which he, my perception would've been, would've been working on for a long period of time. 264 In his evidence in cross-examination, Mr Davis accepted this was not accurate because in that examination he had not mentioned the 9 October 2019 telephone conversation, such that there was no conversation referred to giving rise to a need to "clear the air". Rather, on the account given by Mr Davis at his s 155 examination, Mr Davis had not spoken to Mr McEvilly at that stage, who therefore would not have known about potentially missing out on the Honeywell service and maintenance contract. On Mr Davis' version, the only basis for annoyance on the part of Mr McEvilly would have been the bare fact of competition. 265 Mr Davis accepted that his explanation had changed, and that the clearing of the air purpose for the conversation now related to the heated telephone conversation on 9 October 2019. The ACCC submits that: (a) Mr Davis changing his account on something as fundamental as the reason originally advanced by him for calling the 18 December 2019 meeting is of itself a strong reason to reject that later explanation as any part of the true reason for doing so; (b) acceptance of Mr Davis' revised explanation for calling the meeting depends upon his account of the 9 October 2019 telephone conversation being accepted, which it should not be, a submission that has already been accepted for the reasons set out above; (c) Mr Davis' revised explanation for calling the 18 December 2019 meeting is logically irreconcilable with his own account of what was said at that meeting. On Mr Davis' account, when he spoke to Mr McEvilly on 9 October 2019, Mr McEvilly was angry at Delta competing at the NGA, but if that was so and Mr Davis was trying to "clear the air" at the 18 December 2019 meeting, he would not have boasted that Delta was going to win the BMS upgrade tender because that would be provocative and sure to antagonise Mr McEvilly. It was conceded by Mr Davis in cross-examination that this would be a foolish thing to do if he were aiming to clear the air, yet on his own account that is precisely what he did. 266 The respondents accept that if the only purpose for arranging the meeting was to clear the air, then it would not make sense for Mr Davis to raise the possibility of winning further work at the NGA, but his evidence was also to the effect that he wished to put Mr McEvilly in his place, and that this was entirely consistent with raising the topic of Delta winning more work at the NGA, even if it might have upset Mr McEvilly. They submit that raising the possibility of Delta winning further work, and saying this to Mr McEvilly, was also consistent with Mr Davis' confidence that Delta was going to win the BMS upgrade tender regardless of LES' bid. 267 The respondents do not sufficiently engage with the arguments advanced by the ACCC against the "clear the air" explanation for Mr Davis organising the 18 December 2019 meeting. The evidence highlighted by the ACCC makes it reasonably clear that Mr Davis originally gave an entirely different reason for why he wished to clear the air in his s 155 examination. The revised explanation depends upon his account of the 9 October 2019 telephone conversation being accepted, because without it, there was nothing more than the bare fact of competition to give rise to clear the air about anything. Yet Mr Davis's account of that prior conversation does not itself make sense, for the reasons given above for accepting the ACCC's submissions on that topic. It follows that the purpose of clearing the air given by Mr Davis as a reason for organising the 18 December 2019 meeting cannot be accepted by reason of the force of the first two arguments relied upon by the ACCC. 268 Acceptance of the logic of the ACCC's third argument over the contrary argument advanced by the respondents is an additional reason for not accepting that Mr Davis did in fact have a desire to clear the air as a reason for arranging the 18 December 2019 meeting. The respondents' argument to the contrary is really addressing the next reason given for organising the 18 December 2019 meeting, being to put Mr McEvilly in his place, rather than the clearing the air argument. 269 The ACCC's argument for rejecting Mr Davis' second asserted purpose for arranging the 18 December 2019 meeting, namely to tell Mr McEvilly that the NGA was not his (that is, LES') site, is that this is implausible because: (a) this was not mentioned by Mr Davis in his s 155 examination; (b) it again requires acceptance of Mr Davis' account of the 9 October 2019 telephone conversation; and (c) whatever the position back in October 2019: (i) it would have been clear to Mr McEvilly by December 2019 that he/LES did not have exclusive BMS-related rights at the NGA given that he knew that Delta had secured the service and maintenance contract; (ii) Mr McEvilly would have been aware that Delta had been on site for that purpose since October 2019; (iii) Mr Davis accepted in cross-examination that in the period between the 9 October 2019 telephone conversation and setting up and attending the 18 December 2019 meeting, Mr McEvilly had not created any difficulties for Delta at the NGA, such that it is implausible that a meeting would be set up on short notice, just before Christmas for something that, even on Mr Davis' account, was not an issue. 270 The respondents' argument to the contrary, namely that this was consistent with getting more work from the NGA, suffers from the logical defect that this was a meeting with Mr McEvilly, not with the NGA, and putting Mr McEvilly in his place is inherently inconsistent with seeking to line up a beneficial arrangement of some kind with Mr McEvilly to more readily overcome any integration problems that might arise in the future. I am not satisfied that there was any real basis for the purported need to put Mr McEvilly in his place, especially as I accept Mr McEvilly's denial that he said that the NGA was his site in the 9 October 2019 telephone conversation, such that this was most unlikely to have been any reason at all, minor or major, for Mr Davis to organise the 18 December 2019 meeting. 271 As to the third purpose that Mr Davis advances for organising the 18 December 2019 meeting, being to discuss interfacing requirements between the LES-maintained ALC BMS and a Delta BMS at the NGA, the ACCC points to the following reasons why this is implausible: (a) again, it was not a reason identified by Mr Davis at his s 155 examination; (b) Mr McEvilly's evidence was that there was no such discussion, being evidence that should be accepted and preferred to that of Mr Davis; (c) Mr Davis accepted in cross-examination that he had, by September and October 2019, already appreciated there might possibly be integration difficulties in the future, but did not attempt to contact Mr McEvilly on this topic prior to 17 December 2019, as confirmed by Mr Nugraha in cross-examination; (d) nor did Mr Davis explain why this had suddenly become urgent in December 2019, despite maintaining in cross-examination that there was an imperative for this to be discussed; (e) it would have required "remarkable foresight", as Mr McEvilly offered in cross-examination, for Mr Davis to know that any subcontracting arrangement might be required at all for the BMS upgrade, especially as the tender had not been released by 18 December 2019. As Mr McEvilly agreed in cross-examination, while it could be assumed that the NGA would want seamless integration, and the extent to which any such integration was needed might or might not be minimal, the details of any problems there might be in that regard were not known in December 2019; (f) Mr Davis' evidence in cross-examination made it clear that this was not information he needed to obtain from Mr McEvilly: … In your affidavit, you suggested at various points before 2 December it crossed your mind that if - if Delta won the work to replace the Honeywell BMS, it might need to engage in some integration or interface works with the ALC BMS?---Yes. And - but you didn't know prior to 2 December what that work might be?---That's correct. And what I want to suggest to you is that from 2 December, because there was going to be a formal tender process, you knew that there would be a process for resolving any uncertainty you had, as to the extent to which integration or interface works would be required?---Yes. And so those - any question about the extent to which integration or interface work might be required was something that you expected would be resolved as part of that formal tender process?---Yes. And that of course would be information - clarifying information - that you would expect to obtain from Manteena, or the gallery, as part of that tender process?---Yes. And it was not information you needed to try to obtain from Mr McEvilly directly?---No. (g) it can be inferred from the cross-examination evidence of Mr McEvilly and of Mr Mitton that some kind of joint venture or subcontracting arrangement between Delta and LES was likely to be unnecessary, Mr McEvilly explaining in cross-examination that even if the two systems were side by side, the integration or interface would be very minimal; and Mr Mitton confirming the substance of what he had said in his second affidavit at [7], namely that BMS companies were unlikely to form a joint venture for a project like the BMS upgrade and it would not have been necessary for the successful tenderer to engage LES to provide any integration services; (h) Mr Nugraha accepted in cross-examination that it only made sense to start discussions about integration after a successful tenderer had been announced; there would be no reason to do it beforehand; that it would not be sensible even to commence discussions until Delta had won the tender and Delta ran into unanticipated difficulties in implementing the upgrade and there was a problem; and, from LES's perspective, there would be no commercial reason or incentive to enter into any arrangement with Delta unless and until Delta won the tender. 272 The respondents accept that as at the time of the 18 December 2019 meeting, it was impossible to know whether or not it was necessary for Delta to engage LES, acknowledging as obvious the point that Mr Mitton made that before the tender was issued, nobody could have known what the interface or integration requirements were. However, they submit that it still made sense for Mr Davis to approach Mr McEvilly for this reason. They argue that given that: (a) it was common ground that it was relatively rare for two BMSs at a single site needing to integrate or interface as there was usually only one BMS for a building; (b) the Delta BMS had never before integrated or interfaced with the LES BMS; (c) a building operator such as the NGA will want a seamless integration or interface; and (d) there was a possibility of difficulties in that regard, there was a legitimate commercial reason for Mr Davis to engage with Mr McEvilly in December 2019, especially following their terse exchange in the 9 October 2019 telephone conversation. The respondents argue that even if it was not strictly necessary for Delta to engage with LES, it was plain that it may have permitted Delta to comply with the tender requirements more cheaply and effectively. 273 The respondents also rely upon emails that were at the time supportive of a view being held by Mr Davis and Mr Nugraha that it may have been necessary or at least desirable to engage with LES. In particular, an example is given of Delta's minor works manager, Mr Weston, asking Mr Nugraha whether Delta had the ability to program LES hardware as part of the installation of humidity sensors and being told by Mr Nugraha that he thought Mr Weston would have to liaise with Mr McEvilly. This is said to show that, even for a relatively minor exercise, Mr Nugraha thought that it was not simply desirable, but necessary, to engage with LES. The respondents also submit that little weight should be given to the evidence from Mr McEvilly and Mr Hart downplaying the need for engagement for the purposes of integration or an interface because Mr McEvilly had used such engagement in the past, and Mr Hart had no experience in this area. 274 The problem with the respondents' submissions on this integration/interface reason for Mr Davis arranging the 18 December 2019 meeting with Mr McEvilly is that the immediate question for determination is not whether or not Mr Davis's account might, in the abstract, be one that should be accepted as something he might have been thinking about, but rather whether this benign reason that he gave for organising the 18 December 2019 meeting can be accepted, even below the overall threshold of the balance of probabilities as an evidence issue. This determination must take into account the particular circumstances between Mr Davis and Mr McEvilly at the time and the stage that had been reached in relation to the BMS upgrade contract process. As such, the respondents' submissions fail to grapple with the real substance of the arguments advanced by the ACCC. 275 The question is not whether there might have been a reason for Mr Davis, as a representative of Delta, to have raised the question of integration or an interface with Mr McEvilly as a representative of LES if the opportunity happened to arise, but rather whether this was a credible reason for specifically arranging the 18 December 2019 meeting, between the two persons in charge of the two companies. This was not a case of dealing with a minor repair issue, or mere future possibilities, but rather advanced as a substantive reason, among other reasons already discussed, for organising this meeting, to be assessed in the context of the particular history between the two men, and also having regard to what was happening at that time in the tender process. The assessment is required to be carried out in context and not in the abstract. 276 There was no compelling reason, commercial or otherwise, for Mr Davis to organise a meeting at a coffee shop, on short notice, in December 2019 with Mr McEvilly, a man with whom he had no history of personal interaction, to discuss integration or an interface between a possible future Delta BMS at the NGA and the LES ALC BMS, when no tender had even been released, let alone steps taken to finding a suitable tenderer. I am unable to accept that this was a genuine reason for organising the 18 December 2019 meeting. 277 It follows that I reject each of the reasons Mr Davis gave for organising the 18 December 2019 meeting. And I accept the contrary arguments advanced by the ACCC as summarised above. As a result, there is no evidence of Mr Davis giving any legitimate reason for organising that meeting. This does not mean that I can determine from this the true purpose of that meeting, that being a matter best determined by reference to what took place at that meeting, and in particular, what was said. But I do not accept that there is evidence that I can accept of any exculpatory purpose on the part of Mr Davis. 278 Specifically, on the balance of probabilities, I do not accept that Mr Davis genuinely considered it necessary or desirable to engage with LES in relation to the BMS upgrade to a degree that made it a credible purpose, or part of the purposes, of arranging the 18 December 2019 meeting, and accordingly the purpose was something different. In light of the conclusions I reach below both as to Mr Davis' state of mind about the expectations that he had at the time of that meeting, and as to what transpired at that meeting, the conclusion I reach, on the balance of probabilities as this is an issue going to the heart of the case, and being mindful of the quality of the evidence required to meet such a serious conclusion, is that the real purpose of Mr Davis organising the meeting was to endeavour to rig any tender bid process between the two likely tenderers, Delta and LES. I next turn to that state of mind and what took place at the 18 December 2019 meeting.

Whether, by the time of the meeting on 18 December 2019 between Mr Davis and Mr McEvilly, it was likely that the BMS upgrade would be put out to competitive tender, or that more than two parties would be invited to bid

Whether by the time of the meeting on 18 December 2019 between Mr Davis and Mr McEvilly, Delta and Mr Davis expected that the BMS upgrade would be put out to competitive tender, or that more than two parties would be invited to bid. 279 Both of these issues relate to the question of whether the BMS upgrade would be put out to competitive tender, or that more than two parties would be invited to bid (that is, parties other than LES and Delta) at the time of the 18 December 2019 meeting. Only the respondents contend that I am required to resolve the first of these issues, which focuses on the objective likelihood of the BMS upgrade being put out to competitive tender, or that more than two parties were being invited to bid, as at the time of that meeting. The ACCC contends this objective likelihood does not arise as something requiring resolution in the sense of its capability to be determinative in any way, because what matters is Mr Davis' subjective state of mind, not the objective state of affairs. I accept generally that this is so, because an objective assessment of a likelihood of there being more than just Delta and LES as the bidders can only have a material bearing if Mr Davis was aware of that, which is the substance of the second issue. 280 Even so, the objective position, and Mr Davis' subjective understanding are not entirely unrelated. If, but only if, Mr Davis were aware of an objective likelihood of there being additional bidders, that would tend to support an inference that he had a corresponding subjective expectation that this would occur. The ACCC therefore contends that the first of these issues should be resolved in its favour, making its case somewhat stronger. 281 Both sides agree that the second of these issues is required to be resolved, which focuses on the subjective expectations of Mr Davis and thus Delta as to the BMS upgrade being put out to competitive tender, or that more than two parties would be invited to bid, as at the time of the 18 December 2019 meeting. 282 The ACCC's case, as put in closing oral submissions, is that the united force of the circumstantial evidence points in one direction, being that Mr Davis organised the 18 December 2019 meeting because he believed at that time that Delta was in a two-horse race with LES to win the BMS upgrade and wanted to enter into a bid rigging arrangement with Mr McEvilly to ensure that Delta won that tender. The respondents point to evidence supporting a contrary conclusion. 283 The starting point in the evidence is the email from Mr Mandy to Mr Xirakis on the morning of 10 October 2019, forwarding the email from the previous day from Mr McEvilly, considered in some detail above at [182], resulting in the following conclusions: (a) Mr Mandy's express preference was that LES be given an opportunity to compete with Delta for the Honeywell service and maintenance contract and for the BMS upgrade contract; and (b) Mr Mandy's email is objective evidence that the NGA was at that time considering the option of a closed tender process to replace the Honeywell BMS, which would involve only two contractors, instead of a fully competitive tender, which ultimately took place in 2020. 284 The history revealed by the evidence, as considered in more detail below, is that the situation in terms of what the NGA was proposing to do in relation to the contract for the BMS upgrade contract had a degree of fluidity during the second half of 2019, going into 2020. The evidence discloses that Delta's position weakened over time, from the possibility of no tender at all with Delta being made the contractor, to there being a closed tender with Delta, LES and Schneider as tenderers, to there being a closed tender with only Delta and LES as the tenderers, and culminating in an open competitive tender process in 2020 for which both Delta and LES were unsuccessful tenderers. 285 It needs to be kept steadily in mind that this is not a bid rigging case in the sense of there being any allegation that the tender process ever ended up being rigged, let alone rigged in Delta's favour. The substance of the ACCC's case is that this was an outcome that Mr Davis (and thus Delta) sought to achieve, failing in fact to do so. If that case succeeds, it is no more than speculation as to whether the attempt could ever have succeeded had Mr McEvilly's stance (on the ACCC's case) been different. 286 In keeping with the evolving objective state of affairs, at one point, including in mid-September 2019, Mr Davis (and thus Delta) had some grounds for at least hoping that they might secure the contract without a tender process. Whether that hope was ever objectively realistic does not need to be determined, noting that there is an unknown impact on the process of the complaint that Mr McEvilly made about the approach he said was made by Mr Davis, in the sense of what might have happened with the tender process had that complaint not been made. 287 There was then a point when it might have been three bidders contemplated: Schneider, Delta and LES. On 2 December 2019, Mr Davis had been told that there would only be two bidders: Delta and LES. But that is not what ultimately took place. A critical question is whether, as at the time of the 18 December 2019 meeting, Mr Davis expected that it would no longer be a two-horse race. The substance of the respondents' case appears to be that Mr Nugraha's evidence that Mr Sitauti told him that there would only be two tenderers, Delta and LES, and that this was conveyed to Mr Davis by Mr Nugraha, does not support the conclusion that the tender would be so limited. The substance of the ACCC's case is that not only was that sound evidence of the objective position but that there is ample evidence, taken as a whole, that Mr Davis subjectively believed that to be so, and indeed was trying the obtain the substance of the position as at 13 September 2019 of there being, in truth, only Delta really submitting a tender. 288 There is in evidence a number of WhatsApp text communications between Mr Nugraha and Mr Davis, noting that the screenshots of each text show two blue ticks below them, indicating the texts were read by Mr Davis. Each text has direct relevance to the state of play as summarised in the preceding paragraph: (a) on 25 October 2019, Mr Nugraha sent two consecutive texts to Mr Davis, both at 9.38 am: Schneider rang NGA requesting tender docs for BMS upgrade, after hearing Honeywell is out the door. Tava [Mr Sitauti] told me just then (b) on 8 November 2019, there was the following text exchange between 1.56 pm and 2.45 pm: Mr Nugraha: Little bird told me Nathan Brownell [from Schneider] had meeting with NGA Mr Davis: No stress. We will get the job. Mr Nugraha: No worries. (c) on 2 December 2019, Mr Nugraha sent four consecutive texts to Mr Davis between 4.42 pm and 4.44 pm: Tava [Mr Sitauti] just rang. Mark and Nick wanted to take NGA project to cutover to tender Initially they wanted Schneider, ALC [that is, LES] and us. But now only us and Tony [McEvilly]. Tava [Mr Sitauti] asked if we could send some documents that would highlight our differences to ALC [LES]. As he wants us on board. (d) on 10 December 2019, Mr Nugraha sent two consecutive texts to Mr Davis, both at 8.55 am: I'm meeting Tava [Mr Sitauti] this Thursday 10.00 AM at our office to discuss upgrade spec he's going to have to write for NGA Will include you in the meeting invite 289 As described at [124]-[127] above, between the texts above of 25 October 2019 and 8 November 2019: (a) On 29 October 2019, a meeting took place at Manteena's premises between Mr Mitton and other representatives of Manteena, representatives of the NGA, including Mr Xirakis, and certain other contractors. During that meeting the NGA BMS upgrade tender was discussed. The minutes for that meeting at item 6.10 record that Delta and LES (referred to as "Web Control", the product name of the software used in the ALC BMS that LES installs) were "proposed as likely contractors". Thus, the reference in the Monday, 25 October 2019 text to Schneider ringing the NGA and requesting the tender documents for the BMS upgrade had not, by the time of the one-hour meeting starting at 8.30 am the following Tuesday, 29 October 2019, been manifested by Schneider being added to the list of proposed tenderers. However, that took place by the next day. (b) On 30 October 2019, an email was sent by the chair of the meeting to Mr Mitton, copied to Mr Jason Bills at Manteena, and to Mr Xirakis and Ms Dagseven at the NGA, expressly naming Steensen Varming as consultants. Mr Mitton's evidence about the email was that the NGA was seeking a closed tender process whereby only specific tenderers would be invited to apply, rather than the tender being publically advertised, that is, as an open tender (which can also be described as a competitive tender), and that the NGA was indicating by that time that it considered the possible options for BMS providers for the tender were Delta, LES and Schneider Electric. 290 The objective evidence about what took place and what was communicated by Mr Sitauti indicates that he had a good and well-informed source, most likely at the NGA itself, or perhaps instead obtained information indirectly from someone else at either Steensen Varming or Manteena. This includes: (a) Mr Sitauti knowing about Schneider having sought the tender documents before they had been brought into existence, and before the meeting took place; (b) by the time of the meeting, Schneider not having been added as one of the prospective closed or limited tenderers; (c) by the time the email was sent the next day Schneider having been added. 291 On any view, Mr Sitauti was apparently well-informed. As is revealed below, while Mr Davis agreed in cross-examination that Mr Sitauti was a credible and reliable source, he endeavoured to give evidence that he did not believe a key aspect of what he had conveyed via Mr Nugraha which was adverse to his case. Mr Davis' evidence in this regard was not credible. 292 The respondents suggest in closing written submissions that the basis for the view held by Mr Sitauti as conveyed to Mr Nugraha and passed on to Mr Davis in the 25 October 2019 text above is not clear, referring to Mr Sitauti being employed by Steensen Varming and in that capacity engaged for the specific purpose of drafting the technical specifications to be used in the tender for the BMS upgrade. I do not accept this submission insofar as it suggests that the information being conveyed was somehow unreliable by reason of uncertainty as to how precisely Mr Sitauti came to have this information. Mr Sitauti was necessarily dealing with the NGA, his employer, Steensen Varming, having been retained as a consultant on the BMS upgrade tender process, and he was plainly enough conveying something that he had been told. He was someone Mr Davis regarded as credible and reliable, including in the course of his cross-examination set out below. It was a factual state of affairs, rather than anything to do with Mr Sitauti's technical expertise. The work that Mr Sitauti had been doing, for which Mr Nugraha had been assisting (apparently covertly from the NGA's perspective), with input from Mr Davis, had been directed to slanting the tender towards Delta. All of those circumstances were consistent with the two-horse race referred to in the 25 October 2019 text. 293 What is critical is how Mr Davis viewed that information, not just by way of bland assertion that there was always going to be a competitive tender, contrary to the meeting on 29 October 2019, the minutes of that meeting, and the email sent following that meeting the next day, but by way of an assessment of what he actually said, did and, it may be inferred, actually believed at the time of the 18 December 2019 meeting. That is the best means of testing the respondents' assertion that Mr Davis was "plainly right" to assert, as he attempted to do in cross-examination, that the information from Mr Sitauti that there would only be two tenderers was not reliable. This in turn will largely determine whether the respondents have a sound basis for asserting that there were always going to be five tenderers and that it was not plausible to suggest otherwise. 294 The cross-examination of Mr Davis on this topic is somewhat lengthy and detailed, but it is better to reproduce it than to attempt to summarise it and lose some of its force and effect. Excluding only some of the asides or questions that were not answered and had to be, for example, asked in a different way, the transcript records the following (remembering that the references to "Tava" are to Mr Sitauti, who was helping Mr Nugraha to slant the BMS upgrade tender specifications to favour Delta, with Mr Davis's active input and support): You accept that you told Tony at this meeting that it would be just Delta and LES bidding?---I did. And if I can show you where you deal with that in your 155 transcript, if you turn to page 95, please? … So that's what you said to Tony [Mr McEvilly]: I thought it's just our two companies would be bidding. ?---Yes. And then at - and then if you turn, please, to page 98 at line 4, the cross-examiner says: And, in fact, I think you said before that your belief was the only two people that would be tendering for the upgrade would be yourself and Tony's company? And you say: Yes. ?---That's correct. And you don't qualify that answer in any way, do you?---I don't. And this notion that it would only be two tenderers bidding and that they would be Tony and Delta is consistent with what Tava had told you on 2 December through Mr Nugraha?---Yes. And it's obvious, isn't it, that Tava's communication to you on 2 December was the source of this information?---Yes. And you say you don't - as - I think you agreed with me this morning, you certainly knew at this point that Tava was working on the tender specifications so it would likely be out in the new year; correct?---Yes. And you say in your affidavit that when you agreed in your 155 transcript that you believed that there would only be Delta and LES bidding, you now say that was a mistake?---Correct. But having seen the text from Mr Nugraha on 2 December, and having accepted a moment ago that Tava is the source of this information, it's obvious, isn't it, that that's where this information that you relayed to Tony at the 18 December meeting came from?---Sorry, can you repeat that? Yes. Having now looked at Hendra's [Mr Nugraha] 2 December text, it's obvious, isn't it, that what you told the ACCC in December 2020 was not a mistake, because you did believe that only two competitors would be bidding, being LES and Delta?---I - I'm - I'm sorry. I - I - I - I don't understand the question. Okay. I will take it in steps. Tava had told you through Mr Nugraha on 2 December that there would only be two companies bidding for the tender; correct?---That's correct. And it was LES and Delta?---Correct. And you accept that that is the source of the information that you related to Tony at this meeting?---Yes. And it was your belief at that time that that information was true?---No. It was, wasn't it, because as we've now discussed a few times, you regarded Tava as a credible source?---Yes. He was reliable?---Yes. And you, in October, changed your priorities to get that contract signed as quickly as possible because of what he told you about Schneider?---I don't know I changed priorities, but I - I wanted to sign the contract, yes. And what I want to suggest to you is you trusted what Tava told you and you relied on it?---Yes. And you believed it?---No. Well, you say you trusted Tava - what - you trusted what Tava told you and you relied on it, but now you say you don't believe it. And what I want to suggest to you is that's inconsistent?---Well, I disagree. And whether you believed it or not, the information that Tava conveyed via Hendra's 2 December text was your best source of information as to who would be invited to tender at this time?---I'm sorry. Can - can you repeat that? Yes. The information that Tava conveyed through Hendra's 2 December text was your best source of information as to who would be invited to tender at this time?---I think the word "best source" is - I - I'm - I - I'm not quite sure your definition of what you mean there. Can you sort of - - - Did you have multiple sources of information as to who would be invited to tender at this time?---No. No. You only had one, didn't you?---Well, other than my own opinion. You had Tava; correct?---Tava, yes. Yes. And Tava, therefore, was your best source of information, I suggest?---Yes. And if I can then show you page 91 of the transcript - the 155 transcript, I should say - at line 13. At line 13, you were asked whether you and Tony discussed anything more about the upgrade contract. And you said this at line 15: I suggested to Tony that, potentially, there might be a way that I could find a way to compensate him for money that he may have lost on the back of the contract. You see that?---Yes. … Now - so you're clearly talking there about money that he would have lost on the back of the upgrade contract, aren't you?---No. Well, just - what you say is - I suggested to Tony that potentially there might be a way that you could compensate him for money that he would have lost on the back of the contract, and so that's the - you see in the question before that the question is: So when I say the contract, I mean the upgrade contract. … In line 13, you see the question starts: Did you discuss anything more about that contract. ?---Yes. And the cross-examiner clarifies which contract he's talking about. He says: So when I say that contract, I mean the upgrade contract. ?---Yes. And the answer you give in 15 is in relation to the upgrade contract?---Yes. And what you're saying there is that you were looking to find a way to compensate Tony for money that Tony would have lost on the back of the upgrade contract?---No. Well, you obviously are, I suggest?---No. 295 I am unable to accept the denials that are in bold, nor that Mr Davis was mistaken when he agreed in his s 155 examination that he believed that only Delta and LES would be bidding. First, the contrary conclusion would entail finding that Mr Davis deliberately lied to Mr McEvilly about what he believed was taking place. It is not apparent what he or Delta stood to gain by such a lie. Secondly and in any event, even if there is some credible explanation for that, the propositions put in cross-examination and denied are plainly both logical and well supported by the evidence and established circumstance by which the questions were framed, most particularly the s 155 examination transcript evidence. The account that Mr Davis gave at his s 155 examination that he believed only Delta and LES would be bidding for the BMS upgrade contract must be accepted and preferred over his much more recent recantation of having that belief at that time. 296 Those conclusions are buttressed by the following evidence and cross-examination as to an alternative version that Mr Davis now puts forward about what he was referring to in offering, in effect, to compensate LES for a loss of profit margin on a contract. At his s 155 examination, he accepted that he was referring to LES missing out on a profit margin on the BMS upgrade contract; but in his affidavit he deposed to having referred to LES missing out on a profit margin on the Honeywell BMS service and maintenance contract. This alternative account was revealed in cross-examination as not being remotely credible. 297 In cross-examination, Mr Davis accepted that the loss of profit margin if LES did not get the BMS upgrade contract would mean that any compensation for that would have to be substantial, but denied, most unconvincingly, that when he said in his s 155 examination: Well, I said words to the effect that perhaps I could add some margin onto my price in relation to the BMS upgrade that he may have otherwise now not got. and Well, if he's not going to win the job, he's going to miss out on margin, and I suggested that maybe that margin that he's going to lose I could add to my price. that he was referring to the margin that LES was going to miss out on by losing the BMS upgrade contract. 298 In his affidavit at [146], Mr Davis gave a subtly tweaked, but significantly different, account of what he had said to Mr McEvilly at the 18 December 2019 meeting, namely: Maybe I can do something to pay you the margin you might have lost by us getting the service contract. This was plainly enough a reference to the Honeywell BMS service and maintenance contract. 299 Mr Davis was convincingly cross-examined on this, accepting that the Honeywell BMS service and maintenance contract was uncommercial, which was a concession that was effectively impossible to avoid in light of his evidence that this was only a contract of value because of the better position it would put Delta in for obtaining the BMS upgrade contract. However, Mr Davis implausibly resisted the conclusion that he could not have been referring to that contract because there was no profit margin for LES to have missed out on, so as to be compensable. Perhaps most tellingly, it was put to Mr Davis that in the portion of the s 155 examination reproduced above, he was not referring to the maintenance contract as he used future tense by referring to a margin LES was going to lose, noting most importantly that LES had already lost the service and maintenance contract at this point. This logic means that this account of what Mr Davis deposed to saying to Mr McEvilly about margin compensation being directed to the Honeywell BMS service and maintenance contract cannot be accepted. Based on context and logic, it is readily apparent Mr Davis was referring only to the BMS upgrade contract. 300 The respondents point to contrary evidence, dealing directly only with what is said to be evidence that the BMS upgrade contract was always going to tender, rather than grappling with the evidence as to Mr Davis' subjective expectation, relying upon little more in that regard than his recantation of in fact having any such expectation as he had relayed in his s 155 examination. The problem with this approach, as already noted, is that the objective situation can only be of real probative force in relation to that subjective expectation if Mr Davis was aware of it, such that it contradicts the direct evidence just referred to as to that expectation. The respondents seem to argue to the contrary upon the primary basis that the notion that only LES and Delta would ever have been asked to bid for the BMS upgrade contract was inherently implausible; and secondly by endeavouring to discount the evidence of Mr Nugraha and rely upon the evidence of what are said to be more commercially oriented witnesses, including Mr Davis himself. 301 The first hurdle that the respondents face is the 9 October 2019 email from Mr McEvilly that Mr Mandy, the Head of Building Services at the NGA, forwarded to Mr Xirakis at 7.54 am on 10 October 2019, in which he indicated a preference to give LES an opportunity to take on the Honeywell BMS service and maintenance contract and then, as needed, involve both LES and Delta to provide pricing for the replacement of the Honeywell BMS or "go to the market". Mr Mandy, variously described as the Head of Building Services at the NGA in records of the NGA, the Head of the Maintenance Division at the NGA (by Mr McEvilly in his affidavit at [60]), and later the contact person at the NGA in addendum 2 for the tender for the BMS upgrade, and therefore a senior officer at the NGA, was plainly enough contemplating the options of either a limited or open tender for the BMS upgrade, which contradicts the respondents' submission that a limited tender was inherently fanciful. 302 The respondents submit that at its highest, the 9 October 2019 email from Mr Mandy suggests that it may have been contemplated that certain stages of the "cutover", essentially confined to work concerning the temporary exhibition gallery (TEG), would be limited to Delta and LES. In line with my reasoning below, I reject this submission. 303 There was only ever one contract to replace the Honeywell BMS, albeit comprising various parts. What may be readily seen to matter for the integrity of government procurement processes is a sufficiently competitive process, not necessarily an open tender. If that was not so, it is inherently unlikely that Mr Mandy would have raised a limited tender with just Delta and LES as a serious possibility. It is not to the point that this did not ultimately transpire, given that this was evidently being canvassed as a serious possibility within senior ranks at the NGA. I therefore reject the respondents' submission that the evidence establishes that the BMS upgrade tender could never have progressed on a limited basis, with only LES and Delta being invited to tender, rather than always having to involve either an open tender or more than two tenderers. The evidence simply does not support a limited tender being a fanciful proposition as at the time of the 18 December 2019 meeting, let alone an outcome that Mr Davis subjectively did not expect would take place, as he indicated to the contrary in his s 155 examination. 304 The respondents attack the ACCC's reliance on Mr Nugraha's evidence as part of its case that Mr Davis held a subjective expectation of a two-horse race upon the dual basis that he was likely referring to only part of the BMS upgrade relating only to the temporary exhibition gallery, not the entire contract, and that he lacked commercial expertise. However, that attack is somewhat misconceived and in any event does not take matters very far in light of the foregoing. 305 The respondents' reliance on Mr Nugraha referring in cross-examination only to the temporary exhibition gallery, not the entire contract, is, upon closer examination, built on a particular reading of that evidence to the effect that his answers should not be taken literally. The suggestion seems to be that there was in contemplation some kind of split in the BMS upgrade, with the temporary exhibition gallery being separate from, rather than a part of, the entire BMS upgrade contract. If that is what is being suggested, there does not seem to be any sound foundation for it. 306 Mr Nugraha was cross-examined on the draft of the email to Mr Sitauti that he had sent to Mr Davis on 19 September 2019, which was, with that input, sent to Mr Sitauti to facilitate the slanting of the BMS upgrade tender specification in Delta's favour. The relevant parts of that draft email are reproduced above at [160]. It is convenient to reproduce again the relevant passages, with different emphasis added: From both Steve and my point of view, we both believe the Temporary Exhibition Gallery (TEG) plantroom should be our first one to cutover as it addresses a) current Manteena's TEF dehumidifier project, b) establishes Delta's presences on-site and c) the current exhibition (Contemporary Worlds: lndonesia) is due to finish on 27/10/2019 and this would give us enough time to prepare the contract, documentation, programming, graphics, procurement etc. Also before our first cutover, we need to establish the enteliWEB server first to ensure visibility is maintained at all times. 307 This is clearly enough referring to a single contract to replace the Honeywell BMS, to be performed in stages, with the first to change over from the old system to the new (that is, cutover), being the temporary exhibition gallery, rather than two separate contracts, with Mr Nugraha proposing that this process would commence with the first "cutover" in about six weeks. That is inherently inconsistent with any tender process, let alone a competitive tender process. 308 The respondents contend that when Mr Nugraha was cross-examined on the part of the email that refers to "prepare the contract, documentation, programming, graphics, procurement etc", his evidence was that he was referring to proposal documentation rather than the contract itself, confined to the temporary exhibition gallery part of the project. That is undoubtedly correct but really goes nowhere, or at least not very far at all, on the question of a tender process involving additional tenderers to Delta and LES. At this stage in September 2019, Mr Davis and Mr Nugraha both (perhaps somewhat optimistically) assumed, or at least hoped, that Delta alone would be awarded the work of replacing the Honeywell BMS with the Delta BMS: see [163(b)] above. That assumption was dispelled by the time of the conversation between Mr Nugraha and Mr Sitauti, of which Mr Davis was advised by text by Mr Nugraha on 2 December 2019. Mr Sitauti told Mr Nugraha about a tender process involving just Delta and LES, forming the basis for that from Mr Nugraha to Mr Davis to that effect on that date: see [164] above. 309 Further, the ACCC submits that Mr Davis' evidence in cross-examination regarding Mr Nugraha's draft email of 19 September 2019 was implausible. The suggested implausibility is said to have arisen because Mr Davis said he shared Mr Nugraha's view that the BMS upgrade was not going out to tender, but he later resiled from that evidence. The respondents submit he did no such thing as the initial agreement only related to the upgrade works at the TEG. That is, Mr Davis did not expect a tender for the works at the TEG. I reject the respondents' characterisation of Mr Davis' evidence: (a) not least because I have rejected the submission that there was ever going to be a split in the BMS upgrade contract, with the temporary exhibition gallery being separate from, rather than a part of, the entire BMS upgrade contract; and (b) also due to the fact that Mr Davis as Mr Nugraha's superior did not correct Mr Nugraha's proposal by suggesting that the work of replacing the Honywell BMS could not commence in six weeks was unrealistic, if not wholly fanciful. 310 The ACCC submits, and I agree, that it is apparent from this circumstance that as of 19 September 2019, Mr Davis shared Mr Nugraha's assumption, or at least hope, that there would not be a formal competitive tender for replacing the Honeywell BMS. 311 A further part of Mr Nugraha's evidence in cross-examination was the following question and answer: In any event, in September and October 2019, what you were expecting would occur was that Delta would be asked by Manteena or the gallery directly to quote for the replacement of the Honeywell BMS and that Delta would not have to compete in a formal competitive tender for that work?---Yes. 312 The respondents submit that it is unclear by this evidence whether this referred to the pricing of the temporary exhibition gallery, or the BMS upgrade as a whole, characterising this as being inconsistent with Mr Nugraha's WhatsApp text to Mr Davis on 25 October 2019, reproduced above at [288(a)] along with other texts: Schneider rang NGA requesting tender docs for BMS upgrade, after hearing Honeywell is out the door. 313 Two points may be made about this submission. First, the period being referred to in the question and answer relied upon is the point in time when both Mr Davis and Mr Nugraha were at least optimistically hopeful of there being no tender process at all. Secondly, the beginning of the end of that hope seems to have taken place with Schneider requesting tender documents, before a tender process itself of some kind had been decided upon. The question and thus answer is only technically inconsistent in that context if "in September and October 2019" is read as meaning, and being understood as meaning, "in September and all of October 2019", rather than its more obvious meaning of referring to an expectation that existed in that period, but not necessarily from the beginning of September to the end of October. 314 It follows that the respondents' analysis of Mr Nugraha's evidence in cross-examination does not afford them the assistance that is asserted to be derived from it. 315 The respondents' argument also points to the size of the contract as finally tendered for, and to assert that a contract of this value at a prominent public institution such as the NGA was never going to be limited to only two tenderers; and that in the real world, any organisation that had the capacity to meet the contract requirements was going to be invited to submit a tender response. The answer to this is that whether or not that is correct, being a set of assertions based on some kind of common sense reasoning rather than evidence, that was not what Mr Davis told Mr McEvilly, nor, what I conclude he believed at the time of the 18 December meeting. 316 It is also inconsistent with the events around 13 September 2019, when Mr Davis did not know if a competitive tender would be mandatory, per his affidavit at [58]. As I have found, Mr Davis at least thought it was possible at that time that there would be no tender process, even if he thought that was likely, and his evidence was that he was very confident at that time of getting the BMS upgrade work, which I have found was not a confidence shown to be held in relation to a competitive tender process. Entrepreneurial businessmen are not to be assumed to have the highly risk averse instincts of careful lawyers, or the prudential instincts of an archetypal public sector preference for accountability over efficiency. They take risks, take advantage of circumstances and seize opportunities. It is also not consistent with the objective documentary evidence at the time, as referred to in some detail in these reasons. 317 It is also important to have regard to the email sent by Mr Nugraha on 3 December 2019, the day after his WhatsApp text to Mr Davis advising of a limited tender involving just Delta and LES. This email and events that flowed on from it works to provide some additional context to Mr Davis' beliefs at the time. That email contained design language that was written by Mr Nugraha and approved by Mr Davis to help to prevent LES and only LES from winning the tender, if adopted by Mr Sitauti in drafting the design specifications in a way that slanted them in favour of Delta. There was no mention or consideration in that email of any other BMS providers. To the contrary, the opening sentence of the email is: As discussed this morning, below are some of the key advantages we have over Automated Logic System [that is, LES]: 318 This was clearly a ramping up of Delta's efforts to secure the BMS upgrade contract, with not just Mr Davis' knowledge, but with his active input. Mr Davis had been successful in obtaining the Honeywell BMS service and maintenance contract and this was the next phase for when that BMS was replaced. As the ACCC correctly point out in their closing written submissions: (a) Mr Nugraha conceded that the specification language that he proposed and Mr Davis approved with modifications, if it was adopted in the tender specification, would have the effect of preventing LES from winning the tender, remembering that it was essentially a negative assessment of the ALC BMS; (b) Mr Nugraha said that he proposed that language, as approved with some modification by Mr Davis, because he was concerned that Delta might lose the tender to LES; (c) Mr Nugraha accepted that LES stood "a very good chance of winning the tender"; (d) on 12 December 2019, Mr Davis and Mr Nugraha met with Mr Sitauti at Delta's offices, with the intention being to discuss the way in which the BMS upgrade tender specification could be drafted in a manner that favoured Delta over LES - that issue was not ultimately discussed because Mr Sitauti had to leave. 319 The 12 December 2019 meeting between Mr Davis, Mr Nugraha and Mr Sitauti, which was just under a week before the 18 December 2019 meeting between Mr Davis and Mr McEvilly, in also somewhat inconsistent with Mr Davis' evidence in cross-examination that he did not particularly trust Mr Sitauti's advice with regards to Delta and LES being the only two tenderers by that stage. 320 These targeted acts against LES, in combination with the 18 December 2019 meeting between Mr Davis and Mr McEvilly suggests a degree of concern, if not desperation, on Mr Davis' part that Delta was getting outplayed by LES given that they had won a BMS tender of a similar value at the NGA. The objective evidence is inconsistent with Mr Davis believing that it was likely that there were going to be tenderers other than Delta and LES by the time of the 18 December 2019 meeting. 321 Moreover, as the ACCC also point out, a month after the 18 December 2019 meeting, on 21 January 2020, Mr Sitauti told Mr Nugraha that Steensen Varming was rewriting the technical specification for the BMS upgrade to advantage Delta. Mr Nugraha properly conceded that it would necessarily follow that the document was being drafted in a way that would disadvantage LES. On 23 January 2020, Mr Nugraha redrafted part of the NGA's client brief for the BMS upgrade. Mr Nugraha added comments to the document that would allow the specification to be drafted in a way that would favour Delta and disadvantage LES. 322 Finally, and for completeness, the respondents point to and rely upon the following evidence. First, prior to the lengthy cross-examination reproduced above, which addressed what Mr Davis had said in the course of his s 155 examination, it was put to him several times that the approach by Schneider to the NGA to obtain tender documents before any such documents existed, conveyed to him by Mr Nugraha in the 25 October 2019 WhatsApp text, reproduced above at [312], that this increased the risk of the BMS upgrade being put out to a full competitive tender. He responded that the NGA was always going to be put out for a full competitive tender. That evidence was comprehensively discredited by the later cross-examination reproduced at length above. It therefore cannot be accepted as reflecting Mr Davis' genuine state of mind at the time of the 18 December 2019 meeting. 323 Secondly, Mr Mitton deposed to telling Mr McEvilly in late November 2019 that the BMS upgrade was to be the subject of a tender process, an assertion that Mr McEvilly denies. I have already indicated that I prefer and accept the evidence of Mr McEvilly in that regard, because of Mr Mitton's unreliability as to timing. The same conclusion applies to Mr Mitton's evidence of being told this by Mr Xirakis. Nor does the NGA stance assist, having identified Delta, LES and Schneider as options for a tender by 30 October 2019, because the evidence is that by 2 December 2019, per the text from Mr Nugraha to Mr Davis on that date, the NGA no longer wanted Schneider to tender, and only wanted Delta and LES. Nor does the involvement of Manteena assist, as they would have been involved whether any tender was involved, a limited tender, or an open competitive tender. 324 Reliance by the respondents on the ultimate outcome of a competitive tender involving more than two tenderers, what was said about that in the 2020 tender documentation, and what happened in relation to the National Library are similarly of no real assistance, especially in the context of the evidence already discussed. 325 The most fundamental defect in the respondents' argument is that it fails to engage with the substance of Mr Davis's evidence in cross-examination, especially as to what he said in his s 155 examination. 326 Sifting and weighing all the evidence, I am satisfied on the balance of probabilities that, at the time of the 18 December 2019 meeting, Mr Davis did not subjectively expect that there was going to be a competitive tender for the BMS upgrade, or a tender that would involve more than two parties, that is, anyone other than Delta and LES. 327 Additionally, and to the extent it matters, I am unable to be satisfied that the evidence establishes that, as at the time of the meeting between Mr Davis and Mr McEvilly on 18 December 2019, it was objectively likely that the BMS upgrade would be put out to competitive tender, or that more than two parties would be invited to bid. The minute of the meeting on 29 October 2019 records only LES and Delta as proposed contractors. A less formal email the next day, 30 October 2019, suggests that Schneider had been added as a third proposed tenderer, but the obviously well-informed Mr Sitauti had indicated by 2 December 2019 that this was only an initial conclusion, and had not been maintained. That was consistent with Mr Davis's evidence at his s 155 examination. Therefore, in addition to my finding above that Mr Davis' expectation that there was not going to be a competitive tender or a tender with more than two parties being invited to bid, I find that his expectation aligned with the objective likelihood at the time of the 18 December 2019 meeting. It is not to the point that this was later changed to a competitive tender, or at least one with more than two parties invited to bid, for reasons that may have included Mr McEvilly's subsequent complaint about Mr Davis' behaviour at that meeting.

What was said during the 18 December 2019 meeting between Mr Davis and Mr McEvilly by each of those men, and what, if any, implied representations were made by Mr Davis 328 It is common ground that what is found by the Court to have been said by each of Mr McEvilly and Mr Davis at the meeting over coffee on 18 December 2019 is of critical importance to this case. The two men agree that the meeting was short, taking no more than 15-20 minutes. Mr Davis records more in the way of pleasantries than Mr McEvilly, but it is common ground that the meeting was not hostile. Neither provides an extensive, let alone exhaustive account of what was said during the meeting; but each gives an account of the critical part of the conversation which is also quite short. This was the only time the two men spoke about the BMS upgrade tender, and they did not speak again. 329 On the ACCC case, based on the acceptance of Mr McEvilly's account and rejection of Mr Davis' account, this was when Delta, via Mr Davis (but not Mr Davis himself), attempted to make an arrangement or arrive at an understanding with LES containing a cartel provision in relation to the BMS upgrade tender for the NGA; and when each of Mr Davis, and Delta via Mr Davis, attempted to induce such an arrangement or understanding. On the respondents' case, the account given by Mr McEvilly should not be accepted, but rather that Mr Davis' account should be preferred; and in the alternative, even if Mr McEvilly's account was accepted, they contend that evidence simply did not go far enough to constitute either alleged attempt. 330 The respondents further contend that in order for the ACCC to succeed, a finding had to be made that Mr Davis lied in his evidence. I do not accept that contention as such a finding is not necessary, and in absence of necessity should not be made. However, the two accounts are fundamentally different on the critical aspects of the discussion pertaining to the BMS upgrade tender. For the ACCC to succeed, Mr McEvilly's account had to be accepted and preferred over that of Mr Davis.

Mr McEvilly's affidavit evidence in chief 331 The portions of Mr Davis's affidavit dealing with the 18 December 2019 meeting are as follows (emphasis added in bold to the critical part of the conversation deposed to, quotation marks removed, and the names of the two men replacing "Me" and "Tim"): [45] At about 10 am on Wednesday, 18 December 2019, I met with Tim [Mr Davis] at the Tulips cafe in Pialligo (Tulips Meeting). The meeting lasted for approximately 15 to 20 minutes. When I arrived, I saw Tim was already there and had a table in the cafe. Tim greeted me and we said words to the following effect: Mr McEvilly: Hello. Mr Davis: Hello, how are you? Would you like a coffee? Mr McEvilly: Yes thanks. [46] Tim then went to the counter to order me a coffee. After he returned, Tim and I had a conversation in words to the following effect: Mr Davis: Look mate, I know you've had a long association with the gallery. To appease you, I would like to offer you a payment so that you are not wasting your time. The tender is going to be released early in the New Year. There will only be two tenderers and I am confident to win even from second place. Mr McEvilly: Who do you know at the gallery? Mr Davis: You know I can't tell you that. Mr McEvilly: Look Tim, thanks for the offer but, if we get the opportunity to tender for this project, we will do our best to put forward a competitive bid in an attempt to win it. I won't be doing anything else. [47] As we were getting up and walking out the door, I recall Tim and I exchanged words to the following effect: Mr Davis: I may give you a call when the tender comes out, depending on the format. Mr McEvilly: Look okay mate whatever. 332 Mr McEvilly then deposed in his first affidavit about the conversation that: (a) the information that Mr Davis provided about the tender, especially its timing, and there being only two tenderers, was not known to him and was not publically available - he inferred that Mr Davis had received that information from someone with the NGA; (b) he understood the reference to two tenderers to mean that only Delta and LES would be tendering because Mr Davis clearly assumed Delta would be tendering and expected LES to be the other tenderer as he wanted to meet, noting that if there were to be only two tenderers they were the most likely as each was working on one of the existing BMSs at the NGA; (c) he understood the reference by Mr Davis to being confident of winning even from second place to mean that he was confident of winning regardless of the terms of LES' bid and even if its price or terms were not the most favourable to the NGA, and that LES would lose even if its price or terms were better; (d) he took Mr Davis saying "[t]o appease you, I would like to offer you a payment so that you are not wasting your time" to be him saying that he wanted to pay money to LES to lose the tender, that Mr Davis did not elaborate on how specifically LES would lose the tender, but understood that he wanted LES to cooperate by either not submitting a tender or submitting a cover price that would be provided somewhere above Delta's price to provide a suitable margin and justify the contract being awarded to Delta; (e) he could not think of any other reason for Mr Davis to offer him money, never before having been offered money by a competitor to avoid wasting time on a tender or to appease him in connection with an upcoming tender; (f) during the meeting, Mr Davis did not mention the amount of money he was offering to pay, nor did he suggest any joint tender or subcontracting arrangement; (g) he found the idea of a subcontracting arrangement to be strange because it had not been done before and because of the reference to only two tenderers; (h) due to differences in proprietary systems, Delta employees would need to become more familiar with the ALC BMS; (i) Mr McEvilly credibly deposed to always using a subcontractor that was not a full service BMS provider, and to also not wanting to allow Delta personnel the opportunity to become more familiar with the ALC BMS; (j) when he responded to the offer by saying they would put forward a competitive bid, Mr Davis did not say anything to suggest that he had been misunderstood or say anything further to explain what he meant in offering to make a payment in connection with the tender. 333 Mr McEvilly returned to his office after the meeting and told his wife about it because it concerned him as he thought it was a form of bribery or potentially unlawful conduct and he was concerned about the relationship Mr Davis had with someone at the NGA providing him with information about the tender. 334 Consistently with his account of the conversation with Mr Davis and his understanding of what had been said, Mr McEvilly deposed that he said to his wife: I just came back from the meeting with Tim. He knew about the BMS upgrade tender. He's offered me bloody money. I assume this is for me to step away from the tender. He was pretty confident to win regardless. I think someone inside the Gallery is assisting him.

Mr Davis' affidavit evidence in chief 335 The relevant portions of Mr Davis' affidavit dealing with the 18 December 2019 meeting, excluding pleasantries, is as follows (two key critical paragraphs bolded; names of the two men replacing "Me" and "Tony"): [137] ... I disagree with Tony that the conversation Tony and I had about the NGA is accurately summarised in paragraph [46] of his first affidavit. Tony and I said words to the following effect: Mr Davis: Mate, I want to clear the air about the NGA maintenance contract, I could tell you were upset when you called me in October. Mr McEvilly: What gives me the shits is that I didn't even know Delta had been asked to price the contract, and after all these years I would have thought Mark would have given me a heads up. Mr Davis: I can't explain that mate. We were asked to price it, and we did. Mr McEvilly: I just don't understand why Mark wouldn't have told me another contractor was being asked to do work at the gallery. Mr Davis: Raise it with him, Tony. I have no idea. Mr McEvilly: I probably will. [138] When Tony referred to 'Mark' in the above conversation I understood him to be referring to Mark Mandy. [139] We then had a discussion to the following effect: Mr Davis: And look, the maintenance contract is only for 12 months because they are going to upgrade the Honeywell system in the next year anyway. I think the tender is coming out in February. Mr McEvilly: I'm not surprised. The Honeywell system has been there for decades. It was only a matter of time. The gallery told me years ago that they were thinking of upgrading the Honeywell BMS. [140] [reproduced and addressed below] [141] Tony and I then exchanged words to the effect of: Mr Davis: Given we've just picked up the service contract, I reckon we'll win the upgrade tender. We've already started to look at what needs to be done for the upgrade work. I reckon it will come down to us two pricing it and it is going to be hard for us to lose. Mr McEvilly: I'm pretty sure Peter will be pricing it too. Mr Davis: Yeah, it wouldn't surprise me. [142]-[145] [reproduced and addressed below] [146] The conversation between Tony and I then continued with words to the following effect: Mr Davis: I reckon we are going to need to integrate to the ALC System in the extension and I think it is going to be tricky. I might need to subcontract you to help us with the integration and maybe I can do something to pay you the margin you might have lost by us getting the service contract. Mr McEvilly: What are you thinking? Mr Davis: I might be able to add some additional margin to my price and write you an order for a few more dollars. Mr McEvilly: I'd have to have a think about it. Mr Davis: Alright, well I'll give you a call when the tender comes out. [147] Tony and I stood up at about the same time and we walked towards the exit near our table, which led to the courtyard and play area. Words were then exchanged between Tony and I to the following effect: Mr McEvilly: Who do you know in the Gallery? Mr Davis: I can't tell you that. Mr McEvilly: Yeah, okay. See you later. Mr Davis: Bye mate. 336 Mr Davis then said at [148] that he had left the meeting feeling that he had achieved both of his objectives of "clearing the air and also making clear to Tony that the NGA was not 'his site' ". However, for the reasons given in some detail above at [254]-[278], I am unable to accept that either of those two objectives were in fact a purpose for arranging the meeting. 337 Mr Davis also provided an explanation for aspects of his version of the conversation, the key portions of which are addressed below.

Key similarities in the affidavit evidence in chief of Mr McEvilly and of Mr Davis as to the 18 December 2019 meeting 338 Before turning to the key differences in the two accounts of the conversation at the 18 December 2019 meeting, and the evidence in cross-examination on those differences, it is convenient first to consider the written versions to identify their key points of similarity. There is substantial similarity between three important aspects of Mr McEvilly's account at [46] and aspects of Mr Davis's account at [139], [141] and [147]. 339 Dealing with those three aspects in turn, the first aspect relates to the part where Mr McEvilly deposes at [46] to Mr Davis saying words to the effect "[t]he tender is going to be released early in the New Year". Mr Davis deposes at [139] to saying words to the effect "I think that the tender is coming out in February", immediately after saying words to the effect "… the maintenance contract is only for 12 months because they are going to upgrade the Honeywell system in the next year anyway". Mr Davis also deposes at [140] as follows: When I said words to the effect of "I think the tender is coming out in February", I did not actually know that. I recall thinking that, if the Honeywell Service and Maintenance Contract was due to expire on 25 November 2020, then if the BMS Upgrade Tender came out in February 2020 it would have been possible for Delta to complete the BMS Upgrade Tender work before the Honeywell Service and Maintenance Contract expired. Other than my rough estimation, I had no other reason to believe that the BMS Upgrade Tender would be coming out in February 2020. 340 While there is nothing inherently implausible about the explanation Mr Davis gives for him forming a view, or making a prediction, as to the likely timing of the issuing of the BMS upgrade tender, it is objectively likely to be an incomplete account of his thought processes at that time. This is of concern when it comes to an assessment of his reliability and therefore credibility. That is because Mr Davis, in relation to his explanation of what he said and why he said it, ignores the five consecutive WhatsApp texts sent to him by Mr Nugraha just over two weeks beforehand, on 2 December 2019. He also ignores what took place the next day, 3 December 2019, addressed in more detail below. The key point is not that Mr Davis' account of his reasoning process, taken alone and out of context, is not logical or credible so far as it goes, but rather that it is somewhat misleading by at least implicitly suggesting that this was the only information he had about the BMS upgrade, having regard to the additional information that he had been provided by Mr Sitauti via Mr Nugraha, and the provision by email of further information that Mr Sitauti had sought from Mr Nugraha, with his input. 341 It is of value to refer again to that additional information that Mr Davis had at the time of the 18 December 2019 meeting with Mr McEvilly. The five consecutive WhatsApp texts sent to Mr Davis by Mr Nugraha bear repeating, remembering again that "Tava" is a reference to Mr Sitauti, "Mark" is a reference to Mr Mandy, and "Nick" is a reference to Mr Xirakis: [4.42. pm]: Tava just rang. Mark and Nick wanted to take the NGA project cutover to tender [4.42 pm] Initially they wanted Schneider, ALC and us. [4.43 pm] But now only us and Tony. [4.43 pm] Tava asked if we can send some documents that would highlight out differences to ALC. [4.44 pm] As he wants us on board. 342 It is also important to recall the events of the next day, 3 December 2019, being: (a) representatives of Steensen Varming, including Mr Sitauti, attended a stakeholder consultation meeting with Manteena and representatives of the NGA; (b) Mr Sitauti's telephone call to Mr Nugraha after that meeting, asking for dot points of the advantages of the Delta BMS when compared to the ALC BMS at least serviced by LES, even if evidence of its original supply by an LES predecessor was absent; (c) Mr Nugraha relaying that conversation to Mr Davis the next day, and the discussion about the email to be sent in response to Mr Sitauti's request; (d) Mr Nugraha preparing and sending a draft of the email to be sent to Mr Sitauti to Mr Davis; (e) Mr Davis calling Mr Nugraha via telephone to discuss the draft email to Mr Sitauti and offering some suggestions about the draft of that email ; (f) that email being sent by Mr Nugraha to Mr Sitauti. 343 As both men gave evidence as to the effect of what was said in substantially the same terms as to a BMS upgrade tender being issued in the relatively near future, the version to be preferred, as a matter of practicality, turns on whose account beyond that aspect is preferred, and why. The two things that really matter at this point are: (a) that Mr Davis said something about the likely issue of a tender in early 2020, as part of the conversation; and (b) that Mr McEvilly was correct to infer that Mr Davis had some contact within the NGA in at least the sense of inside information, because the evidence demonstrates an indirect contact as to the details of what was going on via what was conveyed to him by Mr Nugraha about what Mr Sitauti had said. 344 Once there was a conversation about the tender, the question to be determined is which version of what else was said of significance is accepted and preferred. Because Mr Davis chose not to depose as to the influence or absence of influence on his thought processes regarding the five WhatsApp texts sent to him by Mr Nugraha on 2 December 2019, or his involvement in the conversations and emails that followed, his account is objectively incomplete and therefore to that extent of doubtful reliability. This contributes to accepting and preferring this aspect of Mr McEvilly's account, noting again that the difference in expression is not, of itself, of any great moment. But it does add some weight to preferring Mr McEvilly's account overall. 345 The second aspect of substantial similarity between the two accounts relates to the part where: (a) Mr McEvilly deposes at [46] to Mr Davis saying, immediately after the first aspect as to the timing of the BMS upgrade tender, words to the effect "[t]here will only be two tenderers and I am confident to win even from second place"; (b) Mr Davis deposes at [141] to saying words to the effect "I reckon it will come down to us two pricing it and it is going to be hard for us to lose", immediately after words to the effect "[g]iven we've just picked up the service contract, I reckon we'll win the upgrade tender. We've already started to look at what needs to be done for the upgrade work." 346 There is no material difference between the two accounts of the effect of what Mr Davis said to Mr McEvilly, namely that there would be two tenderers and him expressing confidence that Delta would win the tender. But again, it is important to note that Mr Davis was not merely conveying some abstract prediction as his affidavit suggests, but again rather was armed with important knowledge: (a) as to what had been conveyed by Mr Sitauti to Mr Nugraha about the NGA's preference by only a relatively short time before the 18 December 2019 meeting for only two tenderers, Delta and LES; (b) that information had been conveyed by email by Mr Nugraha to Mr Sitauti, with his input, about technical advantages that the Delta BMS were said to have over the ALC BMS supplied by LES. For that reason, I accept and prefer this aspect of Mr McEvilly's account, adding some weight to preferring his account overall. 347 Mr Davis' affidavit includes a number of paragraphs after the conversation he deposes to having had with Mr McEvilly at [141]: [142] When I said to Tony words to the effect "hard to lose", this reflected my view that it was highly likely that Delta was going to win the tender. I have read paragraph [46] of Tony's first affidavit and I deny that I used words to the effect that "I am confident to win even from second place". I said words to the effect that it would be "hard to lose", as I was confident Delta would win the tender. [143] When I said words to the effect of "I reckon it will come down to us two pricing it", I did not know this as a fact, but I was hopeful that this would occur. I was happy for Tony to think I knew more than I did. I was happy for him to think I knew a lot about what was going on in the NGA to demonstrate that it was not "his site". [144] During my examination under s 155(1)(c) of the Competition and Consumer Act 2010 (Cth), I said that I suggested to Tony that it would just be our two companies bidding for the BMS upgrade. It was later suggested to me in the examination that I had said it was my belief that there would only be two people tendering for the BMS upgrade. I mistakenly agreed with that question. While I did say words to the effect of "I reckon it will come down to us two pricing it", I did not believe that to be the case. [145] When Tony referred to "Peter", I understood this to mean Peter Hart from Control and Electric. I understood this because the only person I know in Canberra who operate in the BMS space with the name Peter is Peter Hart from Control and Electric. I agreed with Tony that Control and Electric would probably bid too. I also thought that other BMS operators were likely to bid too. 348 In relation to [142], any difference in meaning and impact between: (a) Mr McEvilly's account of him saying "I am confident to win even from second place"; and (b) Mr Davis's account of saying "I reckon it will come down to us two pricing it and it is going to be hard for us to lose", enables it to be concluded with a high degree of certainty that Mr Davis was expressing to Mr McEvilly confidence as to the outcome of the tender in Delta's favour. Importantly, there was objectively a concrete basis for that confidence going beyond what Mr Davis expressly deposed to, most significantly, Mr Sitauti slanting the tender specifications in Delta's favour, with the overt assistance of Mr Nugraha and the background assistance of Mr Davis himself. The substance of this aspect of the ACCC's case is that Mr Davis perceived the tender situation as being a two-horse race, which he considered he was better placed to win, but wanted to turn confidence into certainty and help to ensure Delta's success by attempting to create a situation where there was no race at all. Both accounts are consistent with there being no third tender participant in contemplation by the NGA at that stage. 349 In relation to [143], the reference to inside knowledge was not, as Mr Davis would have it, him only being hopeful and merely seeking to demonstrate that the NGA was not Mr McEvilly's "site". That is because: (a) he knew that Mr Sitauti preferred Delta and was preparing specification documentation which was intended to be slanted in Delta's favour; (b) the evidence reveals a situation consistent with a degree of genuine confidence rather than merely conveying to Mr McEvilly, in the nature of some mere puffery, that he knew more than he really did; (c) the tenor of this part of the conversation, even on Mr Davis's account, is more consistent with the ACCC's case than with him merely letting Mr McEvilly know that the NGA was not his site. 350 I am not satisfied that Mr Davis ever said or suggested anything during the 18 December 2019 meeting to the effect that the NGA was not Mr McEvilly's or LES' site. Accordingly, I prefer this aspect of Mr McEvilly's account and find that Mr Davis said words to the effect "[t]here will only be two tenderers and I am confident to win even from second place", and that this confidence, while perhaps being somewhat overstated, had a real and substantial basis, albeit not disclosed to Mr McEvilly. 351 In relation to [144], by which Mr Davis's seeks to disavow the belief expressed in his s 155 examination that there would, at that stage, be only two tenderers for the BMS upgrade, I accept and prefer that original account, and reject his revisionist evidence before this Court that he did not hold such a belief. This conclusion is supported by the information provided to Mr Davis from Mr Sitauti via Mr Nugraha on 2 December 2019, and also the email sent by Mr Nugraha to Mr Sitauti the next day, 3 December 2019 about the Delta BMS advantages, with Mr Davis' input, which is also important as to his credit and reliability. 352 It follows from the above that, in relation to [145], I am unable to accept that Mr Davis made any reference to Mr Peter Hart from C&E, because this is inconsistent with: (a) the belief that he conveyed at his s 155 examination as to there being only two tenderers; (b) the objective evidence of the minutes of the Manteena/NGA meeting on 29 October 2019 and the email from Mr Kaufman to Mr Mitton (copied to others) about that aspect of that meeting the next day, 30 October 2019, which made no reference to C&E, but does refer to Schneider being considered; (c) the 2 December 2019 texts from Mr Nugraha to Mr Davis, which also make no reference C&E, but do refer to Schneider being considered for a time, and then not being favoured; (d) the request by Mr Sitauti for dot point information about the advantages that the Delta BMS had over the LES ALC BMS, with no reference to C&E, and the information that was provided in the email from Mr Nugraha to Mr Sitauti that was similarly confined. 353 I conclude that Mr Davis had no identified basis for holding any belief that C&E were proposed by the NGA to be part of the limited tender process then in contemplation. What really matters is that part of the discussion about the tender involved a reference by Mr Davis to there being only two tenderers, and him expressing a belief that Delta would win the tender. 354 The third aspect of substantial similarity between the two accounts relates to the part where Mr McEvilly deposes at [46] to him saying words to the effect "[w]ho do you know at the gallery?", and in response Mr Davis saying words to the effect "[y]ou know I can't tell you that". Mr Davis deposes to Mr McEvilly saying the same to him, and only a slightly different version of his response, being words to the effect "I can't tell you that". Once that much is common evidentiary ground, taking into account the finding that I have already made that I do not accept that Mr Davis had a purpose and thus an objective of conveying to Mr McEvilly that the NGA was not his or LES' site, I find that this was said in the context of discussing the tender, not in a different context as deposed to by Mr Davis. I therefore find that Mr Davis was conveying to Mr McEvilly by clear enough implication that part of his reason for expressing confidence in winning the tender was inside knowledge of the tender process. I further note that this confidence was in part reflective of the true position, because two weeks before the meeting, Mr Davis knew from the draft email from Mr Nugraha to Mr Sitauti that he varied and approved being sent, that Mr Sitauti was writing the tender specifications in a way that favoured Delta. 355 Each of the above findings are supportive of Mr McEvilly's account of the conversation and run counter to aspects of Mr Davis' account.

Isolating the key differences in the affidavit evidence in chief of Mr McEvilly and of Mr Davis as to the 18 December meeting 356 The key difference between the evidence in chief affidavit accounts of Mr McEvilly and Mr Davis, reproduced above at [331]-[336], is that: (a) Mr McEvilly deposes to Mr Davis offering a payment so that Mr McEvilly/LES would not be wasting their time, in the context of Mr Davis: (i) advising of the imminent release of the tender and their two companies being the only tenderers; (ii) expressing confidence that Delta would win the tender; and (iii) being asked by Mr McEvilly who he knew at the NGA, which he refused to say, and Mr McEvilly responding by declining the offer and saying that LES would put forward a competitive bid if given the chance, to which Mr Davis did not react or respond; (b) Mr Davis deposes to a conversation not immediately connected to him advising Mr McEvilly of the imminent release of the tender and their two companies being the only tenderers (deposing to that being discussed at a different point in the conversation): (i) expressing confidence that Delta would win the tender, during which he said that Delta was going to need to integrate to the (LES) ALC System in the NGA Extension; (ii) saying that he thought integration was going to be "tricky"; (iii) saying that he might need to subcontract LES to help; and (iv) saying that maybe he could pay the margin that LES might have lost by Delta getting the service contract by adding some additional margin to Delta's price and writing an order for a few more dollars, to which Mr McEvilly responded that he would have to think about it. 357 The resolution of this starkly different account turns on the findings already made about the events leading up to the meeting and the cross-examination of the two men. The substance of the competing arguments is that: (a) the ACCC submits that Mr McEvilly's account should be accepted because: (i) he was credible as to what was and was not said; (ii) he is supported by the events leading up to the meeting (especially the WhatsApp texts sent on 2 December 2019 and the email sent on 3 December 2019); (iii) the meeting took place in the busy last business week of the year for Delta, being a time when Mr Nugraha said only critical meetings would take place; (iv) there is no credible exculpatory explanation from Mr Davis for the meeting taking place; and (v) Mr Davis's contrary account is implausible and inconsistent. (b) the respondents, while adhering to Mr Davis' account of the conversation, rely upon a particular reading of the cross-examination evidence of Mr McEvilly as rendering the substance of his account as being in effect exculpatory, which is understandable given that Mr McEvilly did not resile from the substance of what he deposed to in his affidavit, but did appear to accede to some qualifying propositions that were put to him.

Mr McEvilly's evidence in cross-examination 358 The cross-examination of Mr McEvilly was detailed and systematic, over some 80 pages of transcript over several hours, of which some 17 or so pages focused on the conversation during the 18 December 2019 meeting. The key parts of that aspect of Mr McEvilly's evidence in cross-examination, and the conclusions I reach about it after taking into account competing submissions, are as follows. 359 Mr McEvilly was adamant in cross-examination that there was no discussion about subcontracting or a joint tender, or being paid to help with any integration work or there being a reference even to any lesser supply arrangement, stating that it should have been impossible for Mr Davis to know anything about what may or may not have been integrated at that time. I found those denials credible and coherent, and they were not undermined by the cross-examination questions suggesting that Mr Davis had said this, which Mr McEvilly flatly denied. 360 Mr McEvilly adhered to his account of what Mr Davis had said to him, and repeated the words and substance of it, both as to him not wasting his time and a payment being made. He rejected the suggestion that he had been told anything about a tender for the BMS upgrade by Mr Mitton in November 2019, placing the timing of a conversation with Mr Mitton in January 2020. Mr McEvilly was adamant that there being only two tenderers had only come from Mr Davis. This evidence again was not undermined by further cross-examination. Moreover, I have already found that Mr Mitton was unreliable as to timing of events, such that this affords no basis for doubting Mr McEvilly's evidence in that regard. 361 Mr McEvilly denied having any knowledge or thought that Mr Hart from C&E would be bidding, but agreed that it seemed inconceivable that there would be only two tenderers. However, Mr McEvilly said that Mr Davis knew of this information, describing his immediate response as being to ask who Mr Davis knew at the NGA. He said that Mr Davis did not deny knowing someone, but would not say who it was. The posing of that question, which Mr Davis also deposes to, albeit in a different context, supports the inference that, while Mr McEvilly had thought prior to the meeting that only two tenderers was inconceivable, he understood Mr Davis to be advising to the contrary, in the context of expressing confidence in the outcome of such a process. Mr McEvilly adhered to his affidavit evidence in agreeing in cross-examination that Mr Davis was saying that he would win the tender even if LES offered a better price or better terms. 362 One of the most telling questions and answers in cross-examination followed soon after: The BMS upgrade tender had not been released at this time, had it?---No, it hadn't been - it wasn't released till 24 July the following year. All right. So you could not possibly have understood that Mr Davis was asking you to do something in relation to your price for the BMS upgrade tender, which was going to be released at some point in the future; that's right, isn't it?---No, that's not right. I mean, Mr Davis was basically telling me that he was going to win the contract regardless. He wanted to pay me for not wasting my time. So, in other words, he wanted me just to play along with - you know, with his plan to win the project. 363 Soon after the cross-examination reproduced above, the following questions were asked and answers given: You say that he was asking you to bid at a price that was uncompetitive?---That - that could have been his motive, yes. It could have been, but you have no idea, do you?---No. And he was saying that he was confident he was going to win whether your price was a cover price - whether it was competitive - he was going to win anyway; that's right, isn't it?---That's what he was basically inferring, yes. Yes. He certainly didn't say that he wanted you to bid?---I don't know why he would be saying that. … Mr McEvilly, Mr Davis certainly didn't ask you for any commitment, did he?---No. 364 The above evidence, together with [51]-[52] of Mr McEvilly's affidavit, aligned with the case for the ACCC, subject to the legal arguments still to be addressed. Mr McEvilly's evidence in those paragraphs was: [51] When Tim said, "To appease you, I would like to offer you a payment so that you are not wasting your time", I took him to be saying that he wanted to pay money to LES to lose the tender. Tim did not elaborate on how LES would lose the tender specifically, but I understood him to be suggesting that LES would accept money in exchange for not submitting a competitive bid. I understood Tim's offer of a payment to mean that he wanted LES to cooperate with Delta by either: (a) not submitting a tender for the upgrade of the Honeywell BMS; or (b) submitting a cover price at for the tender so that he could control the price of the job. When I use the term 'cover price', I mean a price that Tim would give to me that was somewhere above Delta's price to provide a suitable margin and to justify the contract being awarded to Delta. [52] I could not then, and cannot now, think of any reason that Tim would have offered me money at the Tulips Meeting other than for the reason stated in paragraph 51. I have never before been offered money by a competitor to avoid "wasting" my time on a tender. Nor had I ever been offered a payment by a competitor to "appease" me in connection with an upcoming tender. 365 The thrust of the respondents' case was that the effect of the above cross-examination evidence, and Mr McEvilly's affidavit evidence at [51]-[52], was weakened or destroyed by reliance upon other questions and answers in cross-examination said to reveal that Mr McEvilly had no idea what Mr Davis might have been suggesting and had simply made assumptions and speculated about what may have been implied. The respondents submit that what Mr Davis was implying "could've been anything", a reference to Mr McEvilly's evidence during cross-examination where he admitted to not knowing what was going to "pan out" from Mr Davis' suggestion. I am unable to accept that this is a tenable, let alone preferable, way in which to comprehend and understand Mr McEvilly's evidence. In context, the reference to "pan out" was a reference to the details of how the proposal advanced by Mr Davis would be implemented. 366 I encountered two distinct difficulties with the respondents' submissions made in reliance upon the cross-examination of Mr McEvilly. The first difficulty was the conflation in some of the questions asked between what was (and was not) overtly said, and the meaning that was conveyed by what was said. The second difficulty is that some of the questions were ambiguous as to what point in time was being referred to, conflating what would have happened had there been no arrangement or understanding as alleged, and what would have happened if the alleged attempt progressed to realisation, with such ambiguity being a problem for the respondents. The confusion on the part of Mr McEvilly as to what he was being asked was quite evident in places. I will illustrate what I mean by those two difficulties when considering the cross-examination specifically relied upon by the respondents and what is submitted in reliance upon it. 367 The respondents submit that the cross-examination of Mr McEvilly made it clear that he did not think any of the outcomes that he deposed to at [51]-[52] of his affidavit had been conveyed, being either LES not submitting a tender, or LES submitting a tender at a cover price which Delta could better. The respondents characterise this as constituting alleged implied offers, not language that the ACCC embraces, nor a language that I consider it necessary or desirable to embrace. 'Implied offers' are used as a way of conceptualising the arguments advanced by the respondents that is not in terms advanced by the ACCC in order to seek to discredit them. For convenience, however, I will use that language in assessing the arguments advanced by the respondents. 368 I pause to observe that what Mr McEvilly deposes to having taken place is the ordinary sense of bid rigging: not running at all, or running tame. In such a situation, even if an agreement or understanding had been reached, as opposed to just being attempted to be induced, the precise mechanism by which it would be given effect would not necessarily have to be decided at that time, and might well be sorted out when the tender documentation had been released. 369 The first so-called implied offer is that LES would not submit a tender for the BMS upgrade. An important observation has to be made at the outset. A distinction must be drawn between what was in contemplation absent any agreement or understanding ultimately being in place and being implemented, and what would happen if this was in place and was implemented. 370 The respondents submit that Mr McEvilly agreed in cross-examination that: (a) he had told the ACCC at a meeting on 5 May 2020 that he did not think that Mr Davis was suggesting that LES would not tender for the project; (b) Mr Davis did not say anything to the contrary at the 18 December 2019 meeting; (c) he had always understood that Mr Davis expected that they would, if invited, put in a tender; and (d) his understanding was that Mr Davis was proceeding upon the basis that LES would tender, all of which is directly contrary to Mr McEvilly's affidavit evidence in chief about the conversation at the 18 December 2019 meeting. 371 I am unable to accept that submission upon giving careful consideration to that evidence and having regard to the difficulties adverted to above. Far from Mr McEvilly departing from his affidavit evidence, properly considered he adhered to it, for the following reasons. 372 As to what Mr McEvilly told the ACCC on 5 May 2020, as recorded in an ACCC file note (rather than any note or statement by Mr McEvilly), I am satisfied the discussion was predicated upon a juxtaposition between what would happen in the absence of any arrangement or understanding, and one being in place. This much is made tolerably clear by carefully reading the questions asked of Mr McEvilly and answers given by him about the ACCC file note (emphasis added), and the further evidence in cross-examination that followed, reproduced below. The first tranche of this evidence was as follows: … as at 5 May 2020, do you agree that you were telling the ACCC that your best recollection was you did not think that Mr Davis was suggesting that you wouldn't tender for the project?---That's correct. Yes. Yes. Well, that being the case, Mr McEvilly, are you able to explain how it is now, in paragraph 51(a) of your affidavit, that you say that's what you understood?---That's - yes, that's what I understood. Yes. Correct. Yes. What you understood is set out in this note; correct?---I don't understand what you're saying, sorry. You just agreed with me that you told the ACCC on 5 May 2020 that your best recollection was that you did not think that Mr Davis was suggesting that you wouldn't tender for the project?---I think it was always considered that we would tender on the project. That's why Tim called the meeting in the first place. And Tim never said anything to the contrary, did he?---That we wouldn't be tendering? Yes?---No. 373 As in substance urged by the ACCC, I interpret this evidence as meaning that when Mr McEvilly was called to the meeting, it was a common understanding between the two men that in the event of a tender for the BMS upgrade, LES (and indeed, Delta) would be submitting bids. That is, this is what was expected to happen in the ordinary course of events, necessarily absent any contrary arrangement or understanding. It was that common understanding that gave rise to Mr Davis calling the meeting in the first place, and it makes sense of Mr McEvilly adhering to [51(a)] of his affidavit, albeit with some confusion as to what was being asked being evident. This is reinforced by the quote of what Mr McEvilly told those present at the 5 May 2020 meeting, recorded in the ACCC file note in evidence: When Tim offered me money, confident that he was going to win the project from second place, it became fairly obvious that he was trying to run the course of the tender and he wanted to have control over the price of the tender at the end of the day. The enticement of payment was for me to play with his game. 374 This did not mean that any fixed way of achieving that control over the outcome of the tender process was being decided or even proposed at that stage. It did not necessarily mean that LES would not submit a tender, that being only one way of rigging a bid, and perhaps not the best way if there were only two tenderers. 375 After an objection to a question that was ruled upon, during which Mr McEvilly left the courtroom, the situation in keeping with the view I have reached was confirmed by the following questions and answers, and the questions and answers reproduced in the next paragraph (emphasis added): I'm asking you about what you understood, and what I'm suggesting is that you did not understand Mr Davis to be suggesting to you that LES should not put in a bid. That's correct, isn't it?---No. I've always understood that Mr Davis expected that we would, if invited to tender, put in a tender. Put in a price. I also assumed from what Mr Davis was saying to me that he possibly expected me to put in a cover price for that tender, which would have been a number dictated to by Mr Davis, but again that was only an assumption. That wasn't anything that Mr Davis had said. Yes. That was just an assumption on your part. Correct?---Correct. You added a further qualification in your answer to there. You said that it was your understanding that there had been no suggestion that LES would not put in a bid if invited to tender?---Correct. Do you recall saying that?---Yes. Mr Davis said to you that he anticipated that there would only be two tenderers. Do you recall saying words to those effect?---No. All that I recall him saying was that he was confident of winning it from second place. So I assumed from that that he inferred there was only going to be two tenderers. Yes. And did you assume - sorry. I withdraw that. Was it your understanding that Mr Davis was proceeding on the basis that the two tenderers would be Delta and LES. Correct?---Again, that was my assumption because we were incumbent with the ALC product in the gallery at the time. Mr Davis was incumbent looking after the Honeywell product at that time. So they would have been the logical two tenderers if that was the case. Yes. Yes. And so it was your understanding that Mr Davis was proceeding on the basis that you would be invited to tender. Correct?---I'm assuming so. Yes. 376 Mr McEvilly was then taken to [51] of his affidavit, asked to read it, and then asked questions and gave answers as follows (emphasis added): So I want to ask you this. Do you agree that the evidence you've just given about your understanding that Mr Davis was not suggesting LES should not bid for the project, assuming LES was invited to tender, is inconsistent with what appears in paragraph 51, subparagraph (a)?---Not necessarily. I mean, I know that Tim offered payment. I know that Tim confirmed that he was confident of winning the tender from second place. I don't know what Tim's plans were moving forward. So he may have expected that either we wouldn't tender or that possibly he would give us a price and we would submit a cover price, or regardless of what our price was, he was confident of winning it still. So I don't know what his plan was. You have no idea what his plan was, do you?---No. I don't. You never - - -?---All I know is what he told me. And he never told you - he never said to you that LES should not bid for the BMS upgrade tender, did he?---No. He didn't say that. No. No?---That was - - - And that was not your understanding either, was it?---Well, I didn't know what to understand other than the fact that he was confident he was going to win regardless. So I don't what plan he had in store for when the tender came out and what he expected we would do to fall in line. So out of the several things that could have happened, all I know is that he was confident that he was going to win it regardless of what panned out at tender time. Do you agree with me that it's pure speculation as to what Mr Davis had in mind on your part?---That's exactly what I said. I don't know what his plan was beyond what he told me that day. Well, he didn't - I withdraw that. You give evidence in your affidavit about your understanding. Correct?---Yes. And that's not what Mr Davis told you, but that is what you say you understood or you assumed based on what he said. Do you agree with that?---Well, assumed would probably be a better word than understand. Yes. Yes?---Because again I could not have understood what Tim's plans were moving forward from that meeting. It was pure speculation on your part?---Pretty much. Yes. Other than that ..... I only knew what he told me. All right. Now, I want to focus on not what he told you, but your understanding, because you have come before this court and you have given evidence about your understanding, and I want to ask you about that?---Yes. Do you understand?---Yes. In paragraph 51(a) you say that your understanding of Tim's offer of a payment which appears in the first few lines at paragraph 51 which you've just read?---Mmm. To mean that LES wanted Delta to cooperate with Delta by: (a) not submitting a tender for the upgrade of the Honeywell BMS?---Poaching - yes. And what I'm suggesting to you is that that evidence is inconsistent with what you've just said about your understanding that Mr Davis was not suggesting?---Again that is my understanding of one of the options that could have panned out. Now, there were several things that Tim may have done or requested we do at tender time. That could have been one them. We may not just have tendered. We may have taken a cover price, we may have just submitted our price as it was and he was still going to be assisted in winning the tender. We didn't know. And you just made a series of assumptions about that, haven't you, Mr McEvilly?---That's all I could have done at that time. 377 It is clear that Mr McEvilly adhered to his affidavit, and did so in a logical and coherent manner. The issue of speculation was directed to what would have happened in the future if he had decided to go along with what Mr Davis was proposing, not speculation as to what Mr Davis meant by what he said. The use of the word "assumption" in context is a reference to what Mr McEvilly drew from the words that were said to him. It is ultimately for the Court to determine what was said, and what it meant.

Mr Davis' evidence in cross-examination 378 I am unable to accept key aspects of the account that Mr Davis gave of the conversation with Mr McEvilly during the course of the 18 December 2019 meeting. The reasons may be shortly stated. 379 The cross-examination of Mr Davis over some 90 pages of transcript over several hours (excluding legal argument), was detailed, forensic and rigorous, concluding with formal Browne v Dunn propositions by putting the key parts of Mr McEvilly's account of the conversation to him, which he denied. Again, the key parts of that cross-examination, and the conclusions I reach about them after taking into account competing submissions, are as follows. 380 I have already found that no part of the purpose for arranging the meeting was to "clear the air" with Mr McEvilly. That conclusion is reinforced by the absence of logic in the actual account that Mr Davis gives. It makes no sense for Mr McEvilly to have said at the meeting that he would probably raise with Mr Mandy why he was not told that Delta had been asked to price the service and maintenance contract for the Honeywell BMS. Apparently unbeknownst to Mr Davis, that very issue had been raised by Mr McEvilly directly with Mr Mandy in his 9 October 2019 email. There was no need, nor any apparent useful purpose, in Mr McEvilly raising it again. I do not need to decide why Mr Davis gave this account of his conversation with Mr McEvilly; it suffices that I do not accept that the part of the conversation deposed to by Mr Davis at [137] took place, and to that extent find that Mr Davis is an unreliable witness. 381 Of greater concern is the benign explanation Mr Davis gives for his version of the conversation relating to offering a financial benefit to LES. He suggested that this was raised in the context of a possible need to integrate a Delta BMS replacing the Honeywell BMS for the Original NGA, with the existing and continuing ALC BMS for the NGA Extension. This account does not survive objective scrutiny. First, it was, on any reasonable view, premature to consider whether there would be any significant enough integration problem to warrant raising it at a coffee shop, let alone the nature and extent of any such problem. Secondly, it was unlikely that any useful purpose would have been achieved in raising this with Mr McEvilly at that time, if at all, or that Mr Davis would genuinely have believed that there was any such useful purpose. It is difficult to accept that the conversation would have remained amicable if this had been raised, given Mr McEvilly's prior adverse reaction to Delta being given what he perceived to be preferential treatment by the NGA, and the at least implied suggestion that this was happening again with sufficient certainty to be talking about subcontracting. It needs to be remembered that Mr McEvilly's objection was not to Delta being given the maintenance contract per se, but to LES not being given an opportunity to compete for the work, including for the BMS upgrade. 382 Thirdly, the reference by Mr Davis to paying Mr McEvilly/LES the margin that might have been lost by Delta getting the service contract was his final and most illogical account of that aspect of what he deposed to saying. His first version, given during the course of his s 155 examination, was said by him in response to questioning about the margin on the BMS upgrade contract (rather than any suggestion of the Honeywell BMS service and maintenance contract). Mr Davis admitted that was what he had said in the s 155 examination, but unconvincingly attempted to resile from that in his evidence in this Court, both in his affidavit, and in his evidence in cross-examination. The s 155 examination account made sense because of there being a profit margin on the upgrade contract, and no profit margin on the service and maintenance contract. That original version was closer to the ACCC's case, which associated the offer of payment with the BMS upgrade tender. 383 In his affidavit, and in cross-examination upon it, Mr Davis deposed to the reference being to the margin LES may have lost by missing out on the service and maintenance contract. That change and thus that evidence was not plausible. The service and maintenance contract was not valuable because of its profit margin, but rather due to its better positioning of Delta for obtaining the BMS upgrade contract, something that both Mr Davis and Mr McEvilly recognised. By contrast, Mr Davis admitted in cross-examination that the margin on the BMS upgrade contract would have been substantial, perhaps in six figures. I am unable to accept that Mr Davis could sensibly have been referring to offering to compensate LES for the loss of margin on the service and maintenance contract. That means that the margin referred to could only have been the margin on the BMS upgrade contract, such that on any view, Mr Davis was offering payment of some kind to Mr McEvilly in relation to the BMS upgrade contract. This conclusion renders the constancy of Mr McEvilly's account even more credible and plausible; and it significantly damages Mr Davis' credit.

Mr McEvilly's account prevails 384 Overall, I consider that Mr McEvilly's evidence in cross-examination was consistent with, and largely reinforced, his affidavit evidence in chief. When combined with the conclusions already reached above about Mr Davis' evidence, and the further conclusions reached below, I am comfortably satisfied that Mr McEvilly's account of the conversation he had with Mr Davis at the 18 December 2019 meeting should be accepted and preferred to that given by Mr Davis. 385 Taking into account the above recounting and assessment of the evidence of Mr McEvilly and Mr Davis about the 18 December 2019 meeting, I clearly prefer and accept the evidence of Mr McEvilly as to what transpired during the critical conversation about the BMS upgrade tender. Part of that turns on the prior rejection of Mr Davis' account of the telephone conversations between him and Mr McEvilly on 9 October 2019 and 17 December 2019, and partly turns on the generally greater credibility of the account given of the conversation itself by Mr McEvilly. I am satisfied that the key conversation was in substance as deposed to by Mr McEvilly at [46] to [47] of his affidavit, reproduced above at [331].

Timing of the 18 December 2019 meeting 386 The respondents suggest that the timing of the 18 December 2019 meeting was not significant. The ACCC in closing oral submissions provide compelling arguments as to why that is not so. As the ACCC correctly points out in substance, the timing relative to other events was significant in ways that supports its case, and detracts from the respondents' case, for the following reasons. 387 One of Mr Davis' key explanations for the meeting was to raise the issue of integration between a new Delta BMS for the Original NGA and the existing and continuing BMS for the NGA Extension. Yet the evidence reveals that while Mr Davis accepted that he anticipated the need for such interfacing in September and October 2019, no prior attempt was made to address this purported issue. This included the period when Delta was pricing the upgrade, when there was at least some prospect of Delta being awarded the contract without any tender process at all. Of significance is that a short time after this period, on 2 December 2019, Mr Nugraha sent the five consecutive WhatsApp texts to Mr Davis, which including conveying the information from Mr Sitauti (consistently with the NGA/Manteena meeting on 29 October 2019 and the email sent about that meeting the next day) that the NGA had considered having a closed tender involving Delta, LES and Schneider, but had then decided to confine it further to just Delta and LES. Fifteen days after receiving the WhatsApp texts, on 17 December 2019, Mr Davis convened the meeting with Mr McEvilly on short notice. In the context of the knowledge of a proposed tender confined to Delta and LES conveyed to Mr Davis, the circumstances logically support, and therefore render more likely, Mr McEvilly's account of the 18 December 2019 conversation, and therefore render even less likely Mr Davis' account of that conversation. 388 A further factor flowing in the same direction is that the meeting was convened in the last business week of the year for Delta, which the evidence discloses was always a busy time. It makes less sense for Mr Davis to convene a meeting at a coffee shop with Mr McEvilly at that time to discuss abstract issues of integration, the need for which would only be properly revealed when the contract specifications were revealed, than to seek to engage in an attempt or attempted inducement of, a bid rigging process, given the expectation by then of a tender being issued early the next year. 389 Finally, I find that the process of Mr Sitauti being provided with information by Mr Nugraha, with input from Mr Davis, as to why the Delta BMS was better than the LES BMS, for use in the drafting of tender specifications, was obviously and self-evidently wholly improper. It can be viewed, on its own, as an improper approach to the tender process, not inherently morally different from bid rigging, as it would have had a unilateral effect in Delta's favour akin to the effect of bid rigging, at least when done in this essentially covert way in the sense of there being no suggestion that the NGA, or even Manteena, knew about it. Mr Davis' troubling evidence in cross-examination was to the effect that there was nothing wrong or improper with this conduct. 390 If it is accepted that Mr Davis genuinely saw nothing wrong with his role and Delta's behaviour via Mr Nugraha in relation to the drafting of the tender specifications, then his moral outlook makes it less likely that he would find a proposal to engage in bid rigging repugnant, which is an important consideration when considering the quality of evidence required to reach the necessary state of satisfaction, as mandated by s 140(2) of the Evidence Act. If instead it is found that Mr Davis was aware of the impropriety of that conduct, then it is even worse. I am prepared to make the lesser finding, and find that this at least was reflective of how driven Mr Davis was to secure the BMS upgrade contract, again tending to favour Mr McEvilly's account of the 18 December 2019 conversation.

Whether or not, at the 18 December 2019 meeting, Mr Davis impliedly offered to make a payment to Mr McEvilly or LES if:

(a) LES agreed not to submit a bid for the BMS upgrade tender; or

(b) LES agreed to submit an uncompetitive bid for the BMS upgrade tender; or

(c) LES agreed to submit a bid for the BMS upgrade tender at a price in excess of Delta's bid or on terms that would otherwise make Delta's bid more likely to be successful than LES' bid. 391 In light of the factual findings I have made, I do not accept that Mr Davis' offer to pay money was for any purpose deposed to by him. His account was inherently implausible and inconsistent with the logic and sequence of events. 392 I am comfortably satisfied, on the balance of probabilities, and having regard to the quality of evidence required to reach such a serious and adverse conclusion as mandated by s 140(2) of the Evidence Act, of the following facts. 393 During the course of the 18 December 2019 meeting, Mr Davis offered to make a payment to Mr McEvilly or to LES, that bare fact not being in dispute, and specifically, Mr Davis said words to the effect: Look mate, I know you've had a long association with the gallery. To appease you, I would like to offer you a payment so that you are not wasting your time. The tender is going to be released early in the New Year. There will only be two tenderers and I am confident to win even from second place. 394 While Mr Davis asserted that he would not use a word like "appease", I note that this was the word that Mr McEvilly attributed to him not just in his affidavit, but also in the email he sent to the ACCC on 25 March 2020, enabling me to have a greater degree of confidence as to the reliability of this evidence. That email was the subject of the cross-examination of Mr McEvilly, and was marked for identification and subsequently tendered, without objection, by the ACCC. 395 It is telling as Mr McEvilly deposes, and I accept that: (a) he responded to this offer by saying words to the effect: Look Tim, thanks for the offer but, if we get the opportunity to tender for this project, we will do our best to put forward a competitive bid in an attempt to win it. I won't be doing anything else. (b) and Mr Davis did not demur from that response, which strongly supports the conclusion that what was being conveyed, and was intended to be conveyed, pertained not just to the BMS upgrade tender, but to departing from a competitive process by rigging that tender. 396 Mr Davis' offer was therefore clearly directed to the BMS upgrade tender, and it is common ground that Mr Davis expected the process to commence by the release of the tender early the next year, 2020. It had nothing to do with the Honeywell BMS service and maintenance contract, an explanation by Mr Davis which simply makes no sense in the context of the evidence about the absence of profitability for that contract. 397 The evidence made it clear that both men were familiar with tendering processes in the BMS industry in Canberra. Absent corruption, of which there was no suggestion, beyond perhaps the conduct of and towards Mr Sitauti, I readily infer it would have been obvious to both Mr Davis and Mr McEvilly that inherent in one tenderer succeeding over a competitor would be that the competitor either did not submit a bid, or submitted a bid that was inferior in some way. This is supported by Mr McEvilly's response, and Mr Davis' lack of a rejoinder, correction or denial, being a circumstance that not only assists at this point of these reasons in understanding the substance of what was said, but also supports an inference as to a corresponding intention, a topic I address separately below, based on the reasoning of Beach J in Olex, reproduced above at [256]. 398 In the context and way the offer was made by Mr Davis, and rejected by Mr McEvilly without rejoinder, correction or denial, casting what was proposed in terms that are readily comprehensible to both Mr Davis and Mr McEvilly, it was both: (a) an attempt to make an arrangement or arrive at an understanding between Delta and LES to rig the bid for the BMS upgrade tender; and (b) an attempt by Mr Davis, and through him Delta, to induce such an arrangement or understanding to rig the bid for the BMS upgrade tender, so as at least to increase materially the chances that Delta would win the tender. 399 The precise ways in which the bid could have been rigged, while not expressly stated, were limited. I readily infer that this would be known to both men given their commercial and tender experience, such that it did not need to be, nor would it be likely to have been, spelt out at that stage. It was a quintessentially tacit offer of the kind to be expected if advanced by one seasoned commercial operator to a like competitor. 400 In keeping with Mr McEvilly's comprehension of what was being proposed, the ways in which the proposed arrangement or understanding would be given effect would be LES agreeing not to submit a bid, LES agreeing to submit a bid that was uncompetitive, LES agreeing to submit a bid at a price in excess of Delta's bid, or otherwise on terms that would otherwise make Delta's bid more likely to be successful than LES' bid. 401 Put another way, in all the circumstances and on all the evidence considered as a whole, and taking into account the experience and background of both men, the clear implication in Mr Davis making the offer in the context of the meeting that I am satisfied was called by him to discuss the BMS upgrade, was that in one way or another, Mr Davis was proposing that LES not be a genuine competitor in the BMS upgrade tender.

Whether, at the 18 December 2019 meeting, Mr Davis:

(a) sought from Mr McEvilly any commitment to act in a particular way, or to maintain a particular state of affairs

(b) proposed that either LES or Delta assume an obligation, or give an assurance that it would act in a particular way 402 Only the respondents contend that I am required to resolve these two issues, while the ACCC contends that because the alleged contraventions are both attempts, there was no need for a commitment to be sought or an obligation to be proposed by Mr Davis at the time of the 18 December 2019 meeting. For the reasons discussed in the legal principles part of this judgment, I am satisfied that the authorities, and especially Egg Corporation when properly understood, not just support, but mandate, that conclusion. 403 The ACCC nonetheless contends that these issues should be resolved in its favour, making its case stronger, and thus, if this were required, it was proven in any event. I consider it prudent to consider whether that is so in the alternative, in case I am wrong in some way about the need for a commitment to be sought, or a proposal made that either Delta or LES assume an obligation or give an assurance to act in a particular way. 404 In keeping with the tenor of the respondents' submissions, beyond asserting that Mr Davis' account should be preferred and addressing the contingency that it was not, the argument on this topic is simply that even on Mr McEvilly's account in his affidavit, said to be supported by his evidence in cross-examination, nothing that Mr Davis said went far enough even to constitute any attempt to enter into an arrangement, reach an understanding, or to induce such an outcome, let alone reach the point of seeking a commitment or the assumption of an obligation. It was an inadequacy of evidence argument. 405 The ACCC puts forward a compelling argument to the contrary. The major thrust of that argument turns on a more detailed consideration of Mr McEvilly's rejection of Mr Davis' offer of payment and the lack of what I have termed as a demurrer to that response, such as by way of a rejoinder, correction or denial. The ACCC points out that not only did Mr McEvilly reject Mr Davis' offer of payment in favour of expressly saying he would be putting forward a competitive bid, but he went a step further by saying that he would not be doing anything else. The ACCC submits that Mr McEvilly's immediate reaction is to understand that this was an offer made upon the contingency of LES doing something other than submitting a competitive bid, in the context of never before having been offered money by a competitor to avoid wasting time on a tender; and that there is a form of corroboration by an acceptance of that understanding by Mr McEvilly in Mr Davis not correcting his response in any way. 406 The next step in the ACCC's argument is that, had Mr McEvilly instead accepted the offer, that would have involved a sufficient degree of commitment and a sufficient assumption of an obligation to constitute the making of an arrangement or the reaching of an understanding. The further substance of the submission as I understand it, is that had Mr McEvilly instead accepted Mr Davis' offer of a payment, and thus of not wasting time on preparing a competitive tender bid, that would have carried with it both the giving of a commitment and the acceptance of a corresponding obligation of at least a moral nature not to compete by one of the available means known to them both. To use the argument advanced by the respondents as to inadequacy, if Mr McEvilly had responded in that way, and had later put in a competitive bid, Mr Davis would have been entitled to have questioned why that was taking place. 407 The ACCC supports this argument by reliance upon the reasoning in the Full Court decision of McPhee. In that case, in the critical conversation, the contravener only overtly asked the competitor to put in a quote, but it was found by the trial judge, and upheld by the Full Court, that what was being asked was to put in a quote that was not competitive. There were further conversations and conduct, but the case turned on what had been asked. The Full Court at [120] rejected the submission that what had occurred at the time of the meeting was too subtle, too tentative or too remote, having regard to what later took place, and upheld the trial judge's observation that all that was needed to complete the arrangement or understanding was acquiescence, with the conduct having advanced well beyond preparation to the stage of persuasion and a positive attempt to induce. The Full Court took into account the reaction of the person to whom the request was made. The ACCC characterises this case as being in the same vein. I agree. I do not accept the respondents' submission that McPhee was an inherently much stronger case, or that this case fell a long way short of what had happened in that case. 408 While the details and precise mechanism would have had to be decided, most likely after the tender had been released, so as to devise the best method by which to make running with a weaker bid or not at all credible, the offer and what came with it was capable of being accepted by Mr McEvilly on the spot. Mr McEvilly's immediate rejection of the offer, expression of an intention to submit a competitive bid, and refusal to countenance doing anything else, together with the absence of any demurrer by Mr Davis, in the context provided by the rest of the evidence, the key aspects of which have been detailed in these reasons, leads to comfortable satisfaction, on the balance of probabilities, that part and parcel of the offer of payment was Mr Davis seeking both a commitment and a corresponding assumption of an obligation to behave in a non-competitive way, sufficient to meet that requirement if it exists. In reaching this conclusion, I find that this serves only to make the ACCC's case stronger, rather than meaning that seeking such a commitment or assumption of an obligation is indispensable to proving an alleged attempt, or attempt to induce.

Whether Mr Davis' conduct at the 18 December 2019 meeting was a step immediately connected to the commission of the alleged contravention of s 45AJ by Delta, or an affirmative and positive act directed towards inducing LES to make the alleged arrangement or to reach the alleged understanding 409 It follows from the conclusions I have reached above that seeking a commitment and an assumption of an obligation, and the capacity for that to be accepted so as to amount to a concluded, although not fully detailed, arrangement or understanding, means that: (a) the content of the offer made; (b) the absence of any demurrer to the content of its rejection; and (c) the history and context of events and the circumstances of the two men, enables me to conclude with comfort that Mr Davis took both the necessary steps immediately connected to the commission of the alleged contravention of s 45AJ by Delta, and an affirmative and positive act directed towards inducing LES to make the alleged arrangement or to reach the alleged understanding. 410 As the ACCC submits, and I accept, it was sufficient that Mr Davis was seeking to initiate discussions with a competitor to enter into an unlawful arrangement or understanding. I am satisfied that the threshold identified by the Full Court in Parkfield Operations from the bottom of p 538 and over to p 539 has been amply met when regard is had to the evidence as whole. As the ACCC point out, had Mr McEvilly been at all receptive to the offer that Mr Davis made, undoubtedly further discussions would have been necessary to finalise the details of the proposed arrangement or understanding. In particular, the precise method of implementing the rigging of the bid would need to be sorted out, but this was necessarily likely to be dependent upon the tender requirements and specifications. However, because of the relatively early stage at which the offer was made by Mr Davis to Mr McEvilly, namely before any tender had been issued, specifics as to any integration needs would have been at best premature and at worst little more than guesswork. That is because the tender specifications necessary to know what was required by the NGA, so as to be able to ascertain what work was needed and its cost, including the need for and nature of the supply of goods and services required from third parties, had not yet been supplied. 411 It is not tenable to suggest that a bid rigging arrangement or understanding cannot be sought at the stage of an attempt, and even entered into, prior to the details being available that are practically necessary for its implementation. To be fair, that is not what the respondents in terms contended, but the case that they advanced as to the insufficiency of the evidence tended to carry this kind of implication, or at least this practical and legal consequence. It would take the requirement beyond the state of being "unparticularised, undeveloped and inchoate" identified by White J, and specifically approved by the Full Court in Egg Corporation.

Whether the common law of attempt, insofar as it is applicable to an allegation of civil attempt under s 76(1)(b) or (d) of the Competition and Consumer Act 2010 (Cth) (CCA), contemplates not only use of the proximity test (conduct that is more than merely preparatory), but also the equivocality test (conduct having no reasonable purpose other than the commission of the alleged contravention) 412 While I have found, in the legal principles part of this judgment, that the equivocality test has no application to attempt in civil proceedings, including civil penalty proceedings, I am satisfied that even if such a test did apply, it would be satisfied. That is so for two inter-related reasons. 413 First, I have rejected Mr Davis' benign explanation for and account of the 18 December 2019 meeting, even allowing for the portions for which there is agreement (preferring and accepting Mr McEvilly's context for those agreed components over those advanced by Mr Davis), which is the only purpose advanced by the respondents, with no other purpose being apparent. 414 Secondly and additionally, once Mr Davis' account is rejected, there is no credible explanation for the meeting taking place at all. The only remaining purpose was, in all the circumstances, and given the history of relations between the two men, nefarious. And I am satisfied that Mr McEvilly had no nefarious purpose in agreeing to meet with Mr Davis. 415 I am satisfied, on the balance of probabilities, that the unequivocal purpose of Mr Davis convening the meeting, and what was said by him, was to attempt, or attempt to induce, the making of an arrangement or reaching of an understanding as alleged by the ACCC, using this reasoning as an evaluative tool as supported by some of the criminal law authorities relied upon by the respondents. If this was a test or standard being applied and was found not to be met, it would, in my view, probably amount to an error by, in substance if not in form, applying the criminal standard of proof, of the kind that the Full Court rejected had been engaged in by White J in Egg Corporation. 416 There is no corresponding error in being satisfied comfortably beyond the minimum threshold for reaching the necessary positive state of satisfaction on the balance of probabilities that each of the two attempts alleged by the ACCC took place. However, because it is beyond question that this is the correct standard, I make it clear and express that I should not and do not make any finding to that effect beyond reasonable doubt.

Whether, at the 18 December 2019 meeting, Mr Davis intended to make an arrangement or arrive at an understanding on behalf of Delta with LES, or to induce LES to make such an arrangement or arrive at such an understanding with Delta, as alleged by the ACCC

If so, whether Mr Davis intended to make the alleged arrangement or understanding with a cartel provision within the meaning of s 45AD of the CCA because the relevant provision:

(a) had the purpose of ensuring that, in the event of a request for bids for the Original NGA BMS upgrade tender:

(i) Delta would bid for the BMS upgrade tender but LES would not, within the meaning of s 45AD(3)(c)(i); and/or

(ii) Delta and LES would both bid for the BMS upgrade tender, but on the basis that Delta's bid was more likely to be successful within the meaning of s 45AD(3)(c)(ii); and/or

(iii) Delta and LES would both bid for the BMS upgrade tender and proceed with their bids, but on the basis that Delta's bid was more likely to be successful within the meaning of s 45AD(3)(c)(iv); and/or

(b) had the purpose of preventing, restricting or limiting the supply or likely supply of services to be provided by LES to the NGA within the meaning of s 45AD(3)(a)(iii) of the CCA; and/or

(c) had the purpose, effect or likely effect of fixing or controlling, or providing for the fixing or controlling, of the price of the BMS services supplied by Delta and/or LES to the NGA within the meaning of s 45AD(2)(c) of the CCA. 417 Taking all the findings about conduct, the remaining question is intention. Most of the work has already been done. Once findings have been made about what was said and what was conveyed, the live question remaining is as to what Mr Davis intended. In that case, any positive conclusion is inferential. Mr Davis' account has been rejected, such that his denials about what he said are no longer in play. 418 The issues as to intention are cast in a way that distinguishes between: (a) the intention to make the alleged arrangement or reach the alleged understanding, or inducing that to occur, being the alleged objectives of the conduct; and (b) the intention as to the content of any such agreement or understanding including a cartel provision, either in the primary and direct sense of bid rigging, or in the alternative indirect sense of controlling supply or price control or fixing. 419 In the circumstances of this case, it was conceptually possible for the ACCC's case to have fallen short on the bid rigging due to an absence of an express statement by Mr Davis as to how that would be carried out. However, once the bid rigging aspect of the conduct is established, the control of supply and the control or fixing of the price flow from the action in taking LES out of the tender process, either at all, or in any practical and competitive sense. 420 Notwithstanding the observations earlier in these reasons about the need for caution in any application of criminal law principles and authority to civil penalty proceedings, the criminal law can sometimes be a valuable source of reasoning. That is especially so in relation to the tribunal of fact. The majority of the High Court observed in Kural v The Queen (1987) 162 CLR 502: (a) at 504: Where the offence charged is the commission of a proscribed act, a guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done. (b) at 505: … the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. 421 When the proven conduct, as found by the tribunal of fact is capable of supporting competing inferences as to the accompanying state of mind, there may be a dilemma in determining, in a civil case, which is more likely. That was the situation faced by White J in the Egg Corporation trial. His Honour was not satisfied that the proscribed intention was more likely than an intention that did not bear that character. That was so despite his Honour rejecting exculpatory accounts given by counsel for the respondents. 422 This case is quite different. Not only has the relevant aspect of Mr Davis' account of the 18 December 2019 conversation been rejected, and Mr McEvilly's contrary account been accepted, but no other benign account has been advanced, much less accepted. 423 I therefore proceed on the process of inference drawing as to intention from the facts with respect to conduct as found earlier in these reasons. Those facts support no reasonable inference other than that Mr Davis intended to make an arrangement or arrive at understanding as alleged by the ACCC, or to induce LES to make such an arrangement or arrive at such an understanding. 424 I further readily infer that Mr Davis' intention amounted to such an arrangement or understanding with a cartel provision within the meaning of s 45AD of the CCA because that cartel provision had the purpose of ensuring that, in the event of a request for bids for the BMS upgrade tender: (a) Delta would bid but LES would not (s 45AD(3)(c)(i)); or (b) Delta and LES would both bid for the BMS upgrade tender, but on the basis that Delta was more likely to be successful (s 45AD(3)(c)(ii)); or (c) Delta and LES would both bid for the BMS upgrade tender and proceed with their bids, but on the basis that Delta's bid was more likely to be successful (s 45AD(3)(c)(iv)). 425 It follows from the inference I draw as to intention concerning the type of cartel provisions proscribed by s 45AD(3)(c)(i), (ii) or (iv), that I also draw an inference as to Mr Davis having the intention for the cartel provisions of the kind proscribed by: (a) s 45AD(3)(a)(iii), namely having the purpose of preventing, restricting or limiting the supply or likely supply of services to be provided by LES to the NGA; or (b) s 45AD(2)(c), namely having the purpose or likely effect of fixing or controlling, or providing for the fixing or controlling, of the price of the BMS services provided by Delta and/or LES to the NGA. 426 It may be observed that each of these alternative intentions do not depend on bid rigging per se. Rather they encompass a different form of cartel conduct associated with or arising out of the tender process. This does not rely upon the greater specificity or granularity required by s 45AD(3)(c)(i), (ii) or (iv). As the ACCC submits, and I accept, on the evidence it is clear that Mr Davis was seeking to make or arrive at, and induce LES to make or arrive at, an arrangement or understanding containing a cartel provision because it: (a) would prevent LES from supplying BMS upgrade services to the NGA; and/or (b) would entail LES agreeing to tender at a "cover price", because tenderers who agree that they will tender at particular prices will also, of necessity, thereby fix, control or maintain prices, as those terms are explained by reference to a range of well-established authorities by Dowsett and Edelman JJ in Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd [2016] FCAFC 42; 244 FCR 190 at [550]-[554], which, as the ACCC points out, is especially so when only two tenderers are involved.

Conclusion 427 I am satisfied that declarations of contravention of the kind sought by the ACCC should be made, and that the matter should proceed to a remedies hearing. The appropriate course now is for the parties to confer and submit two sets of agreed or competing draft orders as to: (a) declarations of contravention; and (b) procedural orders for the conduct of the remedies phase of the proceeding. I certify that the preceding four hundred and twenty-seven (427) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.