The application of the TPA and Competition Codes
194 There is, however, a threshold question in relation to both the application of the TPA, and the application of the Competition Codes.
195 Section 5(1) of the TPA provides:
Parts IV, IVA, Part V (other than Division 1AA), Part VB and Part VC extend to the engaging in conduct outside Australia by bodies corporate incorporated or carrying on business within Australia or by Australian citizens or persons ordinarily resident within Australia.
196 Although s 45 of the TPA is silent upon whether the contravening conduct must occur in Australia, Nexans argued that none of the conduct complained of occurred within Australia and that the TPA does not, notwithstanding s 5(1) of the TPA, extend to Nexans' conduct.
197 Section 8 of the CPRAs provides:
8. Application of Competition Code
(1) The Competition Code of this jurisdiction applies to and in relation to -
(a) persons carrying on business within this jurisdiction;
(b) bodies corporate incorporated or registered under the law of this jurisdiction;
(c) persons ordinarily resident in this jurisdiction; and
(d) persons otherwise connected with this jurisdiction.
(2) Subject to subsection (1), the Competition Code of this jurisdiction extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).
198 Nexans argued that there was no evidence to show it had carried on business within, or was otherwise connected with, any State or the ACT, and thus the Competition Codes, like the TPA, did not apply to any of its conduct.
199 These arguments were not available to Prysmian, which was, at the relevant time and until 20 June 2006, registered as a foreign corporation in Australia. Prysmian comes directly within s 5(1) of the TPA, and s 8(1)(b) of the CPRAs.
200 The sections of the TPA that are said to have been contravened are contained within Part IV of the TPA. The TPA will extend to conduct engaged in outside Australia if the contravenor is a body corporate incorporated in Australia or a body corporate carrying on business in Australia. Nexans is not a body corporate incorporated in Australia. Nexans argued that it was not carrying on business in Australia at the relevant time and, as the conduct complained of occurred outside Australia, the TPA did not extend to that conduct. If all of the impugned conduct occurred outside Australia as contended by Nexans, the applicant needs, in order to engage the extended application of the TPA provided for by s 5(1), to establish that Nexans was carrying on business in Australia. If the applicant has established that, the application of the Competition Codes will also be invoked: s 8(1)(a) of the CPRAs.
201 The question whether Nexans was carrying on business in Australia must be addressed by reference to the date or dates upon which it is claimed the contraventions occurred: Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 at [57].
202 The expression "carrying on business" is not defined in the TPA, although the word "business" is defined in s 4 to include a business not carried on for profit. "Carrying on business" suggests more than one business act is necessary.
203 In Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 8-9, Mason J said of the expression "carrying on the business of grazing":
It denotes grazing activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis.
204 The applicant alleges that the A/R Cartel was made or arrived at as a result of an arrangement or understanding between Nexans, Prysmian, Viscas and Sumitomo some time before October 2001: paragraph 16 of the statement of claim. The A/R Cartel Agreement did not on the applicant's case have any effect in Australia at the time it was made or arrived at.
205 The conduct of which complaint is made arose out of Snowy Hydro issuing an invitation to tender for "Contract no. 90061 for spare 330kV Cable and Accessories", on or about 12 September 2003: paragraph 25 of the statement of claim. The closing date was 10 October 2003.
206 The particular conduct complained of followed Snowy Hydro's invitation to tender and occurred on or about 8 October 2003.
207 The time then for determining whether Nexans was carrying on business in Australia is September/October 2003.
208 The applicant submitted that Nexans carried on business in Australia within the meaning of s 5 of the TPA by Nexans' own provision of services, and also through its subsidiaries including Nexans Australia Pty Ltd ACN 094 715 956 (Nexans Australia). The applicant submitted that Nexans carried on two businesses in Australia: first, an investment business through its wholly owned subsidiary paying it dividends; and secondly, a contracting business because it enters into a contract with its subsidiary in Australia and charges a monthly commission based on turnover.
209 An Australian Securities and Investments Commission (ASIC) company extract for Nexans Australia shows that it is a wholly owned subsidiary of Nexans Participations. The extract that was annexed to Ms Jacquier's first affidavit was a current company search, but her first affidavit referred to it as an historical search. Ms Jacquier addressed that error in her second affidavit, to which was annexed the correct historical ASIC search.
210 An extract from the 2003 annual report of the Nexans group of companies stated that at "the end of financial year 2003, Nexans owned 99.99% of Nexans Participations and 99.99% of Nexans France". The report stated:
Nexans Group has a decentralized management system both in France and abroad. Each entity determines and organizes, in accordance with applicable laws and regulations in force and the conditions specific to its business activity, its working hours, training, salary levels, etc., subject to the control of the Group's management.
This explains why the Group does not currently have any consolidated data at Nexans Group level.
211 Copies of documents filed by Nexans Australia with ASIC pursuant to ASIC Class Order 98/0098, and ss 340 and 341 of the Corporations Act 2001 (Cth), included incorporation documents and resolutions by "directors of a small proprietary company controlled by a foreign company which is not part of a 'large group'".
212 A copy of the 2001 annual report of the Nexans group of companies referred to Nexans' "global presence", including in Australia at "69, Justin Street - Lilyfield NSW 2040 Sidney (sic)". The report stated at page 39:
In addition to its role as the Group's holding company, Nexans also fulfils financing and centralized cash management functions in support of the Group's operations. Nexans has signed a contract with all Group companies covering the sharing of research and development expenses. Pursuant to this contract, Nexans, on behalf of the Group, collects royalty payments from Group companies and redistributes these payments among Group subsidiaries through the implementation of R&D programs of collective importance for the Group.
213 Nexans conceded that the report indicated Nexans was taking and redistributing research and development payments and expenses, but submitted that in collecting royalty payments from group companies and redistributing those payments it was not conducting a business.
214 The 2001 annual report of the Nexans group of companies also referred, at page 91, to the administrative services supplied:
The "General Relations Agreement" concluded with all Nexans Group subsidiaries, and approved by the Board of Directors on March 14, 2001. In respect of this agreement with Nexans Deutschland AG, Mr. Gerard Hauser is a director of both Nexans and Nexans Deutschland AG. These agreements govern the sharing of research and development facilities, the sharing of income issuing from research programs, and the administrative services rendered by Nexans to its subsidiaries.
Pursuant to these agreements, the companies pay to Nexans a percentage of their sales, varying according to the business sector involved, and Nexans contributes to the cost of the research and development programs. Nexans is paid a percentage of the company's sales in consideration of administrative services rendered.
215 The 2002 annual report of the Nexans group of companies stated:
… major orders were placed with Nexans for the supply of special cables: submarine cables for power supply to "Daydream Island" (Australia), and high-voltage underground connection cables for Kuwait, under international calls for tender.
216 The 2002 report also referred to Nexans' "global presence", including in Australia at the same address as the 2001 annual report. The 2002 report stated that "[i]ncome from operations for the year ended December 31, 2002, amounted to 5,045,745 euros, and was derived mainly from services invoiced to Group subsidiaries."
217 A media release obtained from the Nexans' website addressed the Daydream Island project to which the 2002 annual report referred:
Nexans powers-up Daydream Island
Nexans to supply the Famous Holiday Resort with Submarine Energy Cables
Paris, 9th April, 2002 - Nexans, the worldwide leader in the cable industry, has been awarded a contract for the supply of 4,720 metres of 6.35/11kV, 3-core copper conductor, steel wire-armoured submarine energy cable to Daydream Island in Australia.
The contract was awarded to Nexans as part of a major redevelopment of the famous Queensland holiday resort. …
Nexans is one of a select group of companies in the world able to manufacture one continuous length of cable and still meet the time critical deadline set by Daydream Island. The submarine cable, manufactured at the Nexans dedicated MV and HV energy cables facility in Germany, was produced, certified and delivered in only four months. Special containers were built to ship the cable from Germany to Australia in its entirety to ensure the integrity of the cable during transportation.
218 Nexans submitted that the references to "Nexans" were references to the Nexans group, and the media release said nothing about Nexans itself whatsoever, let alone about Nexans carrying on business in Australia.
219 Ms Jacquier deposed that she had been informed by several persons that they had engaged in trade "with Nexans or Nexans Australia within Australia between 2001 and 2006". Gareth Jones of Maser Communications informed Ms Jacquier that that entity held a non-exclusive distribution arrangement with Nexans Australia for low voltage data cables and connectors between 2001 and mid 2004; Steve McAuliffe of Bale Defence Industries informed her that that company had purchased marine cable in Australia from a Nexans entity during the period 2003 to 2006; Elliot Ralph of Cambridge Technologies informed her that that company had purchased a product "Flamex", being a range of low voltage cables used in mass transit applications from Nexans Australia during the period 2001 to 2003. Tony Gangemi of Aero and Military Products Pty Ltd informed her that that company had purchased low voltage navy cable from a Nexans entity located in Germany between 1996 and 2001, and from Nexans Australia from late 2002 to early 2003, and in 2004 entered into an agreement with Nexans Australia to distribute navy products for Nexans Australia.
220 The 2001, 2002, and 2003 Financial Reports of Nexans Australia stated:
… the company is dependent on continued financial support from its ultimate parent company, Nexans SA, or from an alternative source, in order for it to continue to operate as a going concern …
Having considered the financial performance of Nexans Australia Pty Limited and its related entities and the likelihood that financial support will continue to be provided by Nexans SA or its related entities, the directors believe that the company will continue to operate as a going concern.
221 The Financial Report for the year ending 31 December 2003 included:
… in the absence of a firm commitment from Nexans SA to continue to provide financial support there remains significant uncertainty as to whether Nexans Australia Pty Limited will be able to continue as a going concern.
222 The Directors' Reports for the year ended 31 December 2002 and 31 December 2003 stated:
The company is in the business of promoting the awareness of the Nexans brand and generating sales of Nexans product into the [sic] Australia, New Zealand and the Pacific Islands.
…
During the financial year, the Nexans Worldwide group have paid premiums in respect of Directors and Officers Insurance policies, which cover all Directors and Officers of the Group's companies worldwide.
223 Minutes from a meeting of directors held on 22 December 2003 at the office of Nexans Australia stated that the consent of the then director Mr Martin Lynn to act as secretary and director was "subject to Nexans Corporate continuing to support Nexans Australia (even when it is in a negative equity position)." The applicant submitted that the minutes of all meetings of the directors of Nexans Australia that were held between 10 October 2000 to 1 January 2004 do not record any strategic decision-making of the board as to the operations and business of Nexans Australia, because those decisions were made by its parent company, Nexans.
224 A further document was also produced that the applicant submitted showed Nexans Australia incurred commission fees payable to Nexans for research and development and administrative services.
225 In addition to having submitted that Nexans carried on business in Australia directly, the applicant also submitted that Nexans carried on business in Australia through Nexans Participations' subsidiary Nexans Australia. The applicant submitted that Nexans Australia supplied products under the Nexans brand that were manufactured by, and acquired from, other companies within the Nexans group to customers in Australia, and that Nexans Australia was dependent upon Nexans to the extent that it can be said that Nexans Australia was not carrying on its own business, but was carrying on the business of the Nexans group of companies and thus of that group's ultimate parent, Nexans.
226 The applicant submitted that Nexans Australia held itself out to customers in Australia as not being a separate profit centre within the Nexans group. The applicant referred to an email sent on 4 October 2001 from the managing director of Nexans Australia purportedly to a customer, in which the managing director stated:
… one of my main roles is to ensure Nexans marketing and sales channel harmony - in all markets … to ensure the Nexans' messages to local customers are consistent. … Our team is here to assist ALL Nexans customers, regardless of product, market, or sales channel.
227 The applicant also referred to an email from a product manager from Australia and New Zealand, which stated:
Nexans Australia is located in Sydney and Brisbane and represents all the Nexans Factories around the world. … Our role in Australia is to facilitate the various factories activities in Australia. We are not a profit centre but are part of the worldwide Global Export Sales Organisation.
228 The applicant further referred to other companies within the Nexans group, which were wholly owned subsidiaries of Nexans, and which supplied Nexans group products directly to customers in Australia. Communications between Bale Defence Industries Pty Ltd and Nexans Deutschland showed the sale of Nexans cable products in Australia. The applicant referred to the evidence of Nexans' control over Nexans Australia suggested by the documents lodged with ASIC pursuant to the Class Order 98/0098; of royalty fees charged to Nexans Australia for research and development and administrative services based on sales of cables for use in Australia; of the provision of financial support enabling Nexans Australia to trade as a going concern; and of the nature of business conducted by Nexans Australia that included promoting the Nexans brand.
229 Nexans accepted that a foreign entity will be held to be carrying on business in Australia for the purposes of s 5 of the TPA if it can be shown that either the foreign entity carried on business within Australia directly on its own account, or that the business of the foreign entity was carried on in Australia by a subsidiary, but only so long as the subsidiary is carrying on the business on behalf of its parent as an agent of that parent.
230 Nexans addressed all of the documents relied upon by the applicant and contended for different reasons why those documents did not assist the applicant in establishing that Nexans was carrying on business in Australia. For completeness, I will set out Nexans' arguments, some of which were in the written arguments and some of which were put at the hearing.
231 Nexans submitted that the references to "Nexans" in the General Relations Agreement, which was referred to in the 2001 annual report, are ambiguous because they did not distinguish between Nexans and other related entities, and that there is ambiguity as to whether there was one global agreement or a series of bilateral agreements. Nexans submitted that the evidence suggests that there may have only been an agreement with Nexans Deutschland AG, rather than any global agreement with all subsidiaries. The applicant submitted that the critical references plainly refer to the parent company, Nexans. Nexans submitted that the agreement would not make sense if the subsidiaries were acting as agents for Nexans so that Nexans itself was making the sales.
232 In relation to the 2001 annual report, Nexans submitted the report's cover bears the word "Nexans" at the top and "The Group" at the bottom, and thus statements made in the report must be attributed to the Nexans group as a whole. Nexans referred to the annual report references to Nexans having only seven employees out of the Nexans group's 18,000 employees to support its submission that it was unlikely that Nexans was carrying on business in Australia directly. Nexans further submitted that it did not carry on business in the sense that it did not trade or operate at all, but that it only operated some treasury functions for the benefit of its subsidiary companies.
233 Nexans submitted that there was no evidence that Nexans Australia paid Nexans a percentage of sales varying according to the business sector involved, or that Nexans had contributed to the cost of the research and development programs. Nexans submitted that there was no evidence that any administrative services had in fact been rendered by Nexans to Nexans Australia, or that payment had been made for such services.
234 Nexans submitted that the Directors' Reports stated that the Nexans Worldwide group had paid premiums in respect of directors' and officers' insurance policies, and gave no indication or explanation as to the meaning of the term "the Nexans Worldwide Group". Nexans submitted there was no basis for inferring that the entity that made such payments was Nexans.
235 Nexans submitted that the document relied upon by the applicant to show that Nexans Australia incurred commission fees payable to Nexans for research and development, and administrative services, was ambiguous because it referred to "Nexans Corporate" and there was no evidence as to which entity "Nexans Corporate" refers. Nexans submitted that there was no evidence that Nexans carried out any research and development activities at all.
236 Nexans submitted that even if there was any evidence to show that Nexans had entered into the General Relations Agreement with Nexans Australia and services had been provided under that agreement, or that payments had been made in respect of directors' and officers' insurance policies, or that research and development or administrative services had been provided for which commission fees were payable, there was no evidence to show that any conduct had been performed in a continuous and repetitive way over a substantial period of time, to allow for a finding that Nexans was carrying on business in Australia.
237 Nexans submitted in answer to the applicant's submission that Nexans was carrying on business through a subsidiary that there was no evidence that products supplied by Nexans Australia were manufactured or acquired from Nexans, as opposed to any other entities within the Nexans group.
238 Nexans stated there was no information in the documents that Nexans Australia lodged with ASIC that stated Nexans Australia was "controlled by a foreign company", or that stated as to which foreign company exercises control over Nexans Australia, and that there was no reference to that foreign company being Nexans. Nexans submitted that even if an inference could be drawn that it was the controlling company, proof of control was not sufficient to show Nexans Australia carried on the business of Nexans.
239 Nexans submitted that the financial statements of Nexans Australia from 2001 to 2003 did not make it clear whether any support for Nexans Australia would come from Nexans, as opposed to any other related entity of Nexans Australia. Nexans submitted that the fact that Nexans Australia was dependent upon financial support from another entity showed that Nexans Australia was a separate corporate personality. Nexans submitted that the evidence that Nexans had provided loans to Nexans Australia, which showed a rate of interest on the loan of 6.45%, showed that Nexans did not regard Nexans Australia as an extension of itself.
240 Nexans submitted that the minutes of a meeting of directors held on 22 December 2003, which showed that the consent for the then director to act as secretary and director was "subject to Nexans Corporate continuing to support Nexans Australia (even when it is in a negative equity position)", made no reference to Nexans and there is no information to explain to which entity "Nexans Corporate" referred to.
241 Nexans submitted that the minutes of all meetings of the directors of Nexans Australia not recording any strategic decision-making as to the operations and business of Nexans Australia may be regarded as good or bad practice, but the practice did not prove or suggest that it was Nexans who made the strategic decisions for and on behalf of Nexans Australia.
242 Nexans submitted that the email that stated Nexans Australia was not a separate profit centre did not explain what was meant by "profit centre" or the phrase "Global Export Sales Organisation". Nexans also referred to the financial statements of Nexans Australia, which showed Nexans Australia maintained its own profit and loss figures. Nexans submitted that even if Nexans Australia did hold itself out to customers in Australia as not a separate profit centre, that did not show that Nexans Australia's profits were treated as profits of Nexans, or that Nexans Australia was carrying on the business of Nexans.
243 Nexans submitted that the 2002 and 2003 financial statements that stated that Nexans Australia's business was "promoting the awareness of the Nexans brand and generating sales of Nexans product into the [sic] Australia, New Zealand and the Pacific Islands", were irrelevant to the submission that Nexans Australia was carrying on business on behalf of Nexans, as they did not contain a reference to Nexans.
244 Nexans submitted there was no evidence that Nexans Australia promoted, or sold, any products or services of Nexans as opposed to the products or services of another Nexans group entity.
245 Nexans submitted there was not a scintilla of evidence that it had submitted tenders directly, or through its agents, for projects in Queensland. Nexans argued that this was the only allegation on which the applicant sought to advance a case that s 5 of the TPA was satisfied. At the hearing, Nexans submitted that the allegations under s 5 of the TPA were "transparently made for the purpose of fabricating jurisdiction that otherwise did not exist" and that even if it were found that s 8(1)(d) of the CPRAs were satisfied, the Court ought to decline jurisdiction because the federal element was invoked in a colourable manner. Nexans submitted that at best, there was evidence pertaining to a tender for Daydream Island, but no evidence as to which entity submitted that tender, and even then, there was no evidence of more than one tender to so as to constitute the plural "tenders", which is the term used in the particulars of paragraph 48 of the statement of claim.
246 The applicant denied that it had attempted to "fabricate jurisdiction". The applicant referred to an example of an offer, made by Nexans through its German subsidiary, to supply cables to Bale Engineering Co Pty Ltd located in New South Wales. The applicant also submitted it is open to infer that the Daydream Island project was the product of a tender or something very similar to a tender, because it is unlikely that such a large cable project would have been conducted without a competitive tendering process.
247 As I have said, the applicant relied upon two limbs for its proposition that Nexans was carrying on business in Australia. First, by Nexans in its own right, and secondly, through Nexans' subsidiary.
248 The evidence would support a finding, at least to a prima facie level, that Nexans acted as the treasury for its subsidiaries. That appears clear from the 2001 annual report to which I have already referred. That, in my opinion, would constitute the carrying on of a business in Australia insofar as Nexans provided that service to Nexans Participations or, more particularly, to Nexans Australia.
249 The 2001 annual report refers to the General Relations Agreement, which indicates that Nexans' subsidiaries paid a percentage of their turnover for Nexans to provide administrative services.
250 The 2002 annual report would suggest that Nexans was involved in the supply of submarine cables for power supply at Daydream Island, which again indicates it was carrying on business in its own right in Australia.
251 The matters to which Ms Jacquier refers in her affidavit to the number of persons who have dealt with Nexans of Nexans Australia, also indicate that Nexans in its own right, or through a subsidiary, carried on business during that period.
252 The 2001 and 2002 and 2003 Financial Reports of Nexans Australia showed that the company was dependant upon its ultimate parent company "Nexans SA" for it to continue to operate as a going concern. That was confirmed in the Financial Report ending 31 December 2003. Further support for that proposition was contained in the minutes of meeting of the Directors on 22 September 2003.
253 Furthermore, Nexans provided products under the Nexans brand to Nexans Australia. Indeed, Nexans Australia was dependent upon Nexans for the supply of product.
254 The individual criticisms that were made by Nexans of each of the documents do not address the totality of the evidence that Nexans was either carrying on business by itself or through its subsidiary. For example, where Nexans said that the financial statements did not show whether the financial support would come from Nexans or some other related entity, the submission overlooks the reference in the documents to the ultimate parent company.
255 I have already mentioned Murphy J's reasons, none of which I have said prove any fact in issue on these applications, but which show what evidence was before him and for what purpose.
256 The applicant also relied upon the evidence that was before Murphy J including the evidence contained in Mr Roucher's affidavit.
257 As already mentioned, Mr Roucher had claimed that the approximate retail sale for goods sold in Australia under the "NEXANS" mark in 2005 and 2006 was €6.5 million and €7.407 million respectively. Annexed to his affidavit was the Rousseau declaration, which referred to the use of the "NEXANS" mark throughout Australia in 2001. Mr Rousseau's declaration referred to sales for Nexans' products in 2004 and 2005 as €5,624,683 and €9,467,863. Those sales were made by various Nexans subsidiaries described as "Nexans selling unit[s]".
258 The Rousseau declaration and the Roucher affidavit did not refer to 2003, in particular September/October 2003, but it may be inferred, as the applicant argued, that retail goods were sold under the Nexan mark in that year. It is highly unlikely that there were no sales in 2003, having regard to the use of the "NEXANS" mark before 2003, and to the volume of sales in the years after 2003.
259 For all those reasons, in my opinion, the applicant has established that Nexans was carrying on business in Australia both in its own right and through its subsidiaries, at the relevant time. For those reasons, Nexans is within the reach of the TPA: s 5(1). Accordingly, Nexans is within the reach of the Competition Codes: s 8(1)(a) of the CPRAs.
260 The applicant further submitted that it should be found that Nexans was "otherwise connected with" a state or territory for the purposes of the Competition Codes and s 8(1)(d) of the CPRAs, and that the words "otherwise connected" are wider and different from the concept of "carrying on business", which is referred to in s 8(1)(a).
261 If I am wrong about that and Nexans is not carrying on business in Australia, the applicant would rely upon the Competition Codes. In my opinion, this Court would have jurisdiction in relation to a claim under the Competition Codes because, contrary to Nexans' submission that the applicant "fabricated jurisdiction", the claims under the TPA are not colourable. On any understanding, this Court has jurisdiction to entertain the applicant's claims against Prysmian and Viscas under the TPA for cartel conduct. For the applicant to claim relief against what it alleges is the same cartel conduct by Nexans, cannot be described as an attempt to fabricate jurisdiction.
262 If I am wrong about Nexans carrying on business in Australia, this Court has jurisdiction, in its accrued jurisdiction, to decide claims made by the applicant against Nexans under the Competition Codes.
263 Nexans argued that it was not sufficient for the applicant to show that a subsidiary such as Nexans Deutschland supplied products in Australia to establish that Nexans was "otherwise connected with" a state or territory for the purposes of the Competition Codes and s 8(1)(d) of the CPRAs. Nexans relied on Commission of Stamp Duties (New South Wales) v Millar (1932) 48 CLR 618, and that it was Nexans Participations, not Nexans, that owned the shares in Nexans Australia, for its submission that Nexans is not "otherwise connected" with a state or territory of Australia pursuant to s 8(1)(d) of the CPRAs.
264 The expression "otherwise connected" must mean something other than "carrying on business", or being incorporated or registered under the law of the relevant State or Territory, or being ordinarily resident in the state, because all of those expressions are contained in s 8(1)(a), (b) or (c).
265 The test of "otherwise connected" should be applied liberally and a remote or general connection between the conduct complained of and the relevant State or Territory should be sufficient: Pearce v Florenca (1976) 155 CLR 507 at 518; Mobil Oil Australia Pty Limited v The State of Victoria (2002) 211 CLR 1 at [48].
266 I am satisfied that if the evidence upon which I have relied for the finding that Nexans was carrying on business in Australia is insufficient for that finding, then it would be sufficient for a finding that Nexans was "otherwise connected" with the relevant State or Territory.