Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L.

REASONS FOR JUDGMENT Introduction [1] The Parties and the Market [5] The ACCC's Case [13] Witnesses and Evidence [30] Mr Osada and the evidence concerning the A/R Cartel Agreement and the Snowy Hydro Project Agreement [44] The Snowy Hydro Project Tender Process [116] Mr Noonan and the evidence concerning Nexans SA and the Nexans Group of Companies [128] The A/R Cartel Agreement [167] An Arrangement or Understanding [169] A Market in Australia [174] An Exclusionary Provision [176] A Price Fixing Provision [184] The Snowy Hydro Project Agreement [190] An Arrangement or Understanding [191] A Market in Australia [204] An Exclusionary Provision [210] A Price Fixing Provision [211] Conclusions to this Point [212] Attribution of Conduct [215] General Principles [215] Prysmian [230] Nexans SA [235] Conduct Outside Australia [243] General Principles [243] Prysmian [251] Nexans SA [252] Conclusions [288]

Introduction 1 This is an application by the Australian Competition and Consumer Commission ("ACCC") against two overseas companies for relief under the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) and the Competition Codes of the States of Australia and the Australian Capital Territory. The conduct alleged against the two companies may be broadly described as market sharing and price fixing and is alleged to have occurred in September and October 2003. The conduct is alleged to have involved contraventions of s 45(2) of the Trade Practices Act. The two overseas companies are Prysmian Cavi e Sistemi S.r.L (formerly Pirelli Cavi e Sistemi Energia S.p.A.) ("Prysmian") and Nexans SA RCS Paris 393 525 852 ("Nexans SA"). Each of these companies is part of a large group of companies which operate at a global level. In the case of Nexans SA, it is the ultimate holding company of the Nexans Group of companies. Each group is a major supplier in the world of land and submarine energy cables. 2 There was another respondent to the proceeding, Viscas Corporation ("Viscas"). However, the ACCC's claim against that company has been resolved. 3 The ACCC seeks injunctions pursuant to s 80 of the Trade Practices Act and the Competition Codes, declarations pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) and pecuniary penalties pursuant to s 76 of the Trade Practices Act or, in the alternative, the Competition Codes. 4 The anti-competitive conduct provisions of the Trade Practices Act and the Competition Codes are identical. The Competition Codes will only become relevant if the extra-territorial provisions of the Trade Practices Act are not engaged in the case of Nexans SA.

The Parties and the Market 5 The ACCC is a body corporate established under s 6A of the Trade Practices Act. 6 Prysmian has undergone a number of changes of name since it was incorporated as Pirelli Cavi e Sistemi Energia S.p.A under the laws of Italy on 27 November 2001. It is not necessary for me to set out the changes of name in the case of Prysmian. It is sufficient to note that from October 2001 to October 2003 it was known as Pirelli Cavi e Sistemi Energia S.p.A. During that period, it was a majority owned subsidiary of Pirelli S.p.A. until 30 July 2003, and from 31 July 2003 it was a majority owned subsidiary of Pirelli & C. S.p.A. At all material times since its incorporation, Prysmian has been a foreign corporation within s 4 of the Trade Practices Act. 7 Between 10 July 2003 and 20 June 2006, Prysmian was a foreign corporation registered in Australia and under the law of Victoria, and between at least 10 July 2003 and 20 June 2006, the company carried on business in Australia and in a State or Territory of Australia. Since 27 November 2001, Prysmian has had a wholly owned subsidiary in Australia, being Prysmian Power Cables and Systems Australia Pty Ltd which, until 29 September 2005, was named Pirelli Power Cables and Systems Australia Pty Ltd ("Pirelli Australia"). Since 27 November 2001, Prysmian has supplied and offered to supply products, including high voltage and extra high voltage land-based electrical cables and accessories ("land cables") and medium voltage, high voltage and extra high voltage electrical cables and accessories ("submarine cables") to customers in places, including Australia. 8 At all times material to this proceeding, Nexans SA is and has been a body corporate incorporated pursuant to the laws of France and it is and has been a foreign corporation within s 4 of the Trade Practices Act. Nexans SA denies that it carried on business in Australia and in a State or Territory in Australia and it denies that it supplied and offered to supply products, including land cables and submarine cables to customers in places, including Australia. 9 Viscas, which I have already mentioned, is a Japanese company which competes with J-Power Systems Corporation ("JPS") in relation to the supply of high voltage land and submarine cables in various countries, including Australia. Exsym Corporation ("Exsym") is in the same position as Viscas. JPS was incorporated in June 2001 as a joint venture between Sumitomo Electric Industries ("Sumitomo") and Hitachi Cable Limited ("Hitachi"). It is a body corporate incorporated pursuant to the laws of Japan and a foreign corporation within s 4 of the Trade Practices Act. From October 2001, JPS supplied and offered to supply products, including land cables and submarine cables to customers in places, including Australia. 10 In its Further Amended Statement of Claim ("Statement of Claim"), the ACCC pleads that there was a market for land cables in Australia at the relevant time and a market for submarine cables. In the alternative, it pleads that there was a market in Australia for land and submarine cables which it describes as "the Australian cable market". It also pleads that certain parties, including the respondents, were participants in those markets. Prysmian and Nexans SA respond very differently to those pleas. 11 Prysmian admits that at all material times, there has been demand in Australia for land cables from customers, including generators and distributors of electricity, and major construction, mining and development companies and that there are no other products closely substitutable for land cables. Prysmian admits that the demand in Australia has been met by manufacturers and suppliers of land cables, including from at least 2001, Nexans SA, Prysmian, Viscas and JPS, and from at least 2002, Exsym. Prysmian admits that at all material times, there was a market in Australia for the supply of land cables by persons, including from at least October 2001, Nexans, a member of the Pirelli Group of companies (being Prysmian from in or about November 2001), Viscas and JPS, and from in or about April 2002, Exsym. Prysmian makes the same admissions in relation to the same allegations in relation to the market in Australia for submarine cables, save that it alleges that the demand for submarine cables from customers is not limited geographically to Australia or any other region, but is expressed project by project by such customers. However, Prysmian denies the ACCC's alternative allegation of an "Australian cable market". 12 Nexans SA admits that at the relevant time, there was a demand for land cables in Australia, but it pleads that the demand in Australia arose from time to time from customers on a project by project basis from each customer for each relevant project. It admits that there are no other projects closely substitutable for land cables. As to the parties who met the demand in Australia for land cables, it pleads that it did not manufacture or supply any cables of any kind in any place in the world and that it did not meet the demand in Australia for land cables. It admits that at the relevant time there was a market in Australia for the supply of land cables, but denies that it was a participant in that market. Its pleas are to the same effect in relation to the ACCC's allegations that there was a demand in Australia for submarine cables and there was a market in Australia for the supply of submarine cables. Nexans SA denies the ACCC's alternative allegation of an "Australian cable market".

The ACCC's Case 13 The ACCC alleges that as at October 2001, there was an arrangement or understanding between Nexans SA, a member or representative of the Pirelli group of companies, Viscas and Sumitomo which contained a number of provisions. The ACCC described this arrangement or understanding as the A/R Cartel Agreement. I will use that description and refer to the making of the A/R Cartel Agreement. I do this for convenience and it must be borne in mind that the precise allegation is that an arrangement was made or an understanding arrived at. 14 The ACCC alleges that the provisions of the A/R Cartel Agreement were as follows: 16.1. that the cartel members, by their nominated representatives, would meet and communicate as a cartel to co-operate with one another in markets for land cables and submarine cables worldwide, including in the Australian land cable market and the Australian submarine cable market, alternatively the Australian cable market (the A/R Cartel); 16.2. that one group of the A/R Cartel, referred to by the cartel members as the "A Group", consisted of the Japanese companies Viscas and Sumitomo; 16.3. that the other group of the A/R Cartel, referred to by the cartel members as the "R Group", consisted of the European companies, including a member or representative of the Pirelli group of companies and Nexans; 16.4. that a natural person who was the secretary of the A Group, and a natural person who was the secretary of the R Group, would each be the principal point of contact for communications between the A Group and the R Group; 16.5. that the A/R Cartel members would not compete with one another on price in tendering for projects for the supply of land cables or submarine cables, but would reach agreements when particular projects arose as to which of them would be the successful tenderer for the project, referred to as the Allottee; 16.6. that when a member of the A/R Cartel received an initial inquiry, request for budgetary price, or quotation or invitation to tender from a customer for, or otherwise first became aware of, a potential project for the supply of land cables or submarine cables, that member would provide a Notification, by notifying the other members as soon as possible, either directly or through the member's group secretary, of the identity of the customer, the country where the project was located and the basic specifications of the project; 16.7. that if the project was at a preliminary or budgetary price stage only, the A/R Cartel members would agree a minimum price above which they would each submit their budgetary prices if invited to do so by the customer, which minimum price was referred to as the Floor Price; 16.8. that if the project was at a quotation or tender stage, the project would be allocated by the A/R Cartel members agreeing either: 16.8.1. as to a particular Allottee; or 16.8.2. that the project would be allocated to either the A Group or the R Group, which was referred to as giving the project an A Preference or R Preference respectively; 16.9. that allocations to a particular Allottee would occur by the A/R Cartel members reaching agreement as to which of the members who were invited to tender for the project would be the Allottee for that project, taking into account factors including: 16.9.1. whether the project was in a geographic region close to a particular member's production facilities, or otherwise favoured by a member, which was sometimes referred to as a home territory or home market; 16.9.2. whether the project was for a customer with whom a particular member had a strong existing relationship; 16.9.3. whether a member was already associated with the project, by assisting in preparing specifications, or because the project was to connect to or upgrade existing cable supplied by that member; 16.9.4. capacity and workloads of particular members; 16.9.5. requests by particular members to be allocated the project, which were referred to as Preferences; 16.10. if a project was given an A Preference or R Preference, the members of the A Group or the R Group respectively would then agree between themselves as to which of them would be the Allottee; 16.11. the A/R Cartel members would communicate in relation to prices for the project, to ensure the Allottee submitted the lowest price of the members tendering, with the intended consequence that the Allottee would be the successful tenderer for the project; 16.12. the Allottee would notify the other A/R Cartel members, either directly or via the secretaries, of the prices at or above which they should submit their tenders for the project, so as to ensure the Allottee's price was the lowest of the members tendering, which notification was referred to as the Price Guidance for the project; 16.13. the A/R Cartel members who were not the Allottee for the project either: 16.13.1. would not submit a bid for the project; or 16.13.2. would submit a bid in accordance with the Price Guidance provided to them; with the intended consequence that the Allottee would be the successful tenderer for the project; 16.14. that if agreement could not be reached as to the Allottee, or whether a project should be allocated to A Group or R Group, the project could be expressly agreed to be a "Free Fight", which meant that any member could tender for the project at their own price without consulting further with the other members. 15 The ACCC alleges that from approximately October 2001 and following the formation of JPS, that company was a cartel member, a member of the A Group, and a party to the A/R Cartel Agreement. It took the place of Sumitomo, and Sumitomo was no longer a cartel member. The ACCC alleges that from approximately November 2001, Prysmian (following its formation on 27 November 2001), became a member of the cartel, a party to the A/R Cartel Agreement as the representative of the Pirelli Group of companies, and a member of the R Group. 16 The ACCC alleges that from at least October 2001, the A/R Cartel members communicated by their individual representatives as follows. The representatives of Nexans SA were Mr Jeanmarie Jay and Mr Alain Romand. The representatives of the Pirelli Group of companies (being Prysmian from in or about November 2001) were Mr Gianfranco Acquaotta, Mr Federico Corbellini, Mr Alan Jones and Mr Robert Comber. The representative of Viscas was Mr Tsubaki. The representatives of JPS were Mr Joji Yamaguchi and Mr Takeo Osada. The ACCC alleges that from at least October 2001, Mr Jay was the secretary of the R Group and Mr Yamaguchi was the secretary of the A Group assisted by Mr Osada. The ACCC alleges that Exsym became a member of the cartel in April 2002 as a member of the A Group and that its representative for the purposes of communications within the cartel was Mr Toshihisa Inoue. 17 The ACCC alleges that the purpose or effect or likely effect of the A/R Cartel Agreement was to fix, control or maintain prices for land cables and submarine cables and, therefore, to substantially lessen competition within s 45(2)(a)(ii) and s 45A(1) of the Trade Practices Act and Competition Codes. In addition, the ACCC alleges that the A/R Cartel Agreement contained an exclusionary provision within s 45(2)(a)(i) and s 4D because it had the purpose of preventing, restricting or limiting the supply of land cables and submarine cables. 18 At the times relevant to this proceeding, ss 45 and 45A of the Trade Practices Act provided: 45 Contracts, arrangements or understandings that restrict dealings or affect competition … (2) A corporation shall not: (a) make a contract or arrangement, or arrive at an understanding, if: (i) the proposed contract, arrangement or understanding contains an exclusionary provision; or (ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or (b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision: (i) is an exclusionary provision; or (ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition. (3) For the purposes of this section and section 45A, competition, in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a corporation that is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a corporation, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services. … 45A Contracts, arrangements or understandings in relation to prices (1) Without limiting the generality of section 45, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition if the provision has the purpose, or has or is likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired or to be supplied or acquired by the parties to the contract, arrangement or understanding or the proposed parties to the proposed contract, arrangement or understanding, or by any of them, or by any bodies corporate that are related to any of them, in competition with each other. … 19 Section 4D contained a definition of an exclusionary provision and, at the relevant times, it was in the following terms: 4D Exclusionary provisions (1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if: (a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and (b) the provision has the purpose of preventing, restricting or limiting: (i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or (ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions; by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate. (2) A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if, the first‑mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates. At the relevant times, s 4 contained a non-exhaustive definition of "competition" and market was defined (unless a contrary intention appeared) in s 4E as a market in Australia. 20 The ACCC does not seek relief in relation to the making of the A/R Cartel Agreement. However, it claims that Prysmian and Nexans gave effect to the A/R Cartel Agreement in contravention of s 45(2)(b) of the Trade Practices Act and, to succeed, it must show that the agreement fell within the terms of the subsection. The definition section in the Trade Practices Act (s 4) provided that the concept of "give effect to" included doing an act or thing in pursuance of or in accordance with or enforce or purport to enforce. 21 The ACCC alleges that on 24 September 2003, the A Group members and the R Group members arrived at an arrangement or understanding which it describes as the Snowy Hydro Project Agreement. Again, for convenience, I will use that description. The Snowy Hydro Project Agreement related to the Snowy Hydro Project which the ACCC alleges was as follows. Snowy Hydro Limited was the owner and operator of the Snowy Mountains Scheme, an integrated water supply and hydro-electric power business located principally in Victoria and New South Wales. In or about September 2003, Snowy Hydro required land cables and accessories for use in the Snowy Mountains Scheme. Snowy Hydro Limited issued an invitation to tender for a contract described as "Contract no. 90061 for spare 330kV Cable and Accessories" which tender process closed on 10 October 2003. The ACCC refers to this as the Snowy Hydro Project and, again, for convenience, I will use that description. 22 The ACCC alleges that Snowy Hydro Limited issued the invitation to tender for the Snowy Hydro Project to the following companies: (1) Prysmian; (2) JPS; (3) Mitsui & Co (Australia) Ltd ("Mitsui Australia"), which was a subsidiary of Mitsui & Co Ltd ("Mitsui"). Mitsui is a construction company incorporated in Japan; and (4) Midland Metals Overseas Pte Ltd, which is a company incorporated in Singapore. 23 The ACCC alleges that the circumstances leading to the Snowy Hydro Project Agreement were that on 12 September 2003, Mr Osada of JPS notified Prysmian, Exsym, Nexans and Viscas by email of the receipt of the invitation to tender. It alleges that that notification to these companies was given pursuant to the provisions of the A/R Cartel Agreement as was the notification Exsym sent JPS on 16 September 2003 that it had also received the invitation to tender. The ACCC alleges that in his email, Mr Osada, on behalf of the A Group, made a request that the Snowy Hydro Project be allocated to the A Group as an A preference. 24 The ACCC alleges that the Snowy Hydro Project Agreement was made on 24 September 2003 and it alleges that it contained the following provisions: 34.1. the Snowy Hydro Project would be allocated to a member of the R Group as an R Preference; 34.2 pursuant to the provisions of the A/R Cartel Agreement: 34.2.1. the R Group would be entitled to nominate the Allottee; 34.2.2. the R Group would notify the A Group of the Price Guidance, being the price at or above which a member of the A Group who was tendering for the Snowy Hydro Project should submit its tender, so as to ensure the R Group Allottee was the tenderer with the lowest price of the members tendering for the project; 34.2.3. the A Group representative would communicate the Price Guidance to the A Group members, if they were not already copied in to the original communication from the R Group representative concerning the Price Guidance; 34.2.4. any A Group members submitting tenders for the project would tender in accordance with the notified Price Guidance for the project. Particulars The agreement that the R Group would be the allocated group was confirmed by an email from Takeo Osada dated 24 September 2003, 5.44am, as secretary and representative of the A Group, addressed to Jay, as secretary and representative of the R Group, and also sent to Corbellini, Comber, Yamaguchi, Watanabe, Tsubaki and Inoue. 25 The ACCC alleges that between 24 September 2003 and 3 October 2003, the members of the R Group reached agreement that Prysmian would be the allottee for the Snowy Hydro Project. 26 The ACCC alleges against Prysmian and Nexans that the Snowy Hydro Project Agreement contravened s 45(2)(a) of the Trade Practices Act because it fixed, controlled or maintained prices and thereby substantially lessened competition and was an exclusionary provision because it prevented, restricted or limited the supply of land cables. 27 The ACCC alleges against Prysmian and Nexans that their conduct in relation to the Snowy Hydro Project amounted to a giving effect to of the A/R Cartel Agreement. 28 As I understand the authorities, the same conduct may amount to making an arrangement or arriving at an understanding that contravenes s 45(2)(a) of the Trade Practices Act and giving effect to a prior arrangement or understanding in contravention of s 45(2)(b) of the Trade Practices Act, although ultimately, there may be only one penalty. As I said in Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304 ("Yazaki") at [50], there is nothing conceptually wrong in having a general arrangement or understanding followed by a specific arrangement or understanding in a particular case (see also Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd and Others (No 3) [2007] FCA 1617; (2007) 244 ALR 673 per Heerey J at [41]-[47]; Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd and Others (No 6) [2010] FCA 704; (2010) 270 ALR 504 ("ACCC v April International Marketing Services Australia") at 529 [92] per Bennett J). 29 The ACCC makes further allegations against Prysmian. It alleges that Prysmian gave effect to the Snowy Hydro Project Agreement and the A/R Cartel Agreement by submitting a Price Guidance to other members of the A/R Cartel on 3 October 2003 and by its agent, Pirelli Australia, lodging a tender for the Snowy Hydro Project with Snowy Hydro Limited on or about 8 October 2003.

Witnesses and Evidence 30 There were a number of significant pre-trial interlocutory disputes between the parties. It is not necessary for me to mention all of these disputes. However, the following rulings should be noted. 31 In Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 4) [2012] FCA 1323; (2012) 298 ALR 251 Lander J dismissed applications to set aside service of the originating application and statement of claim outside the jurisdiction. His Honour's reasons set out in detail the ACCC's case as it was then pleaded, and addressed a number of the issues which were raised at the trial before me. 32 In Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 8) [2014] FCA 376, I rejected the ACCC's application against Prysmian for an order for further and better discovery. It is not necessary for me to discuss in detail my reasons for rejecting the application. It is sufficient to say that I rejected the suggestion that in terms of the obligation to make discovery, one could treat as one a holding company and its subsidiary or all the companies in a particular business unit of a group of companies. 33 In Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 11) [2015] FCA 876, I dismissed an application made by the ACCC during the trial for Nexans SA to make further and better discovery of documents within its control Again, I do not need to discuss in detail my reasons for rejecting the application. It is sufficient to say that, although I was satisfied "there are documents which are relevant to whether Mr Jay and Mr Romand engaged in the conduct alleged in the Statement of Claim, or at least there are reasonable grounds for being fairly certain that there are such documents which have not been discovered by Nexans SA", I was not satisfied to the required degree that they were within the control of Nexans SA. 34 The ACCC does not suggest that I can draw adverse inferences against the respondents from their failure to make proper discovery. However, it does submit that there are other relevant documents which are not before me, particularly in the case of Nexans SA, and that I should take that into account and not entertain a submission that there are no other documents as distinct from a submission that there are no other documents before me. 35 One of the important issues in this case is whether certain individuals from the Prysmian Group of companies were acting for Prysmian and whether certain individuals from the Nexans Group of companies were acting for Nexans SA. In order to assist it to prove its case in this respect, the ACCC made an application for leave to interrogate both companies shortly before trial. I granted leave to interrogate (Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia S.R.L. (No 9) [2015] FCA 623). The ACCC tendered the answers to interrogatories from each of the respondents as part of its case. 36 The ACCC's main witness was Mr Takeo Osada who worked for JPS between 2001 and February 2006. Between 2001 and sometime in 2004 or 2005, he had a sales and marketing role with the title of Specialist, and from 2004 or 2005 until 2006 he was Group Manager with responsibilities for export worldwide, including Australia. In both those roles, Mr Osada's position in relation to cables covered the export of high voltage land cables and medium and high voltage submarine cables. I do not need to detail the other positions Mr Osada held with either Sumitomo or JPS at times other than those I have identified. It is sufficient to say that he commenced employment with Sumitomo in 1983 and that at the time of the trial, he was employed by Sumitomo in the position of "General Manager in the Social Infrastructure Sales and Marketing Unit". As I have said, in 2001 Sumitomo and Hitachi Cable Ltd established JPS as a joint venture vehicle and its business was the manufacture and supply of electric power cables and accessories, including high voltage and extra high voltage land cables and submarine cables. 37 Mr Osada gave evidence and produced documents which the ACCC contended established the A/R Cartel Agreement and the Snowy Hydro Project Agreement. Certain aspects of his evidence were criticised by Prysmian and Nexans SA. For reasons I will give, I reject those criticisms. I find that Mr Osada was generally a satisfactory witness. There are certain matters about which Mr Osada was not able to give direct evidence and, with respect to those matters, the ACCC's case depends on the drawing of inferences. 38 The ACCC arranged for a number of documents to be translated from Japanese to English. Ms Melinda Hollingsworth and Ms Megan Shimoji carried out those translations. Their respective affidavits were tendered (with some paragraphs not pressed) and they were not required for cross-examination. The ACCC also tendered a number of documents. 39 Prysmian tendered a number of documents, but it did not call any witnesses. 40 Nexans SA called Mr Patrick Noonan as a witness. Mr Noonan is Senior Corporate Vice President, General Counsel, Secretary General and Secretary of the Board of Nexans, a société anonyme, RCS Paris 393 525 852. Mr Noonan did not have any involvement in the conduct alleged by the ACCC to be anti-competitive conduct. Mr Noonan's evidence was directed towards the activities of Nexans SA and its board and employees and the activities of companies in the Nexans Group of companies, including Nexans France, Nexans Participations and Nexans Australia Pty Limited ("Nexans Australia"), and their employees. He gave evidence about the position of Mr Romand and of Mr Jay within the Nexans Group of companies. He gave evidence about a body or group within the Nexans Group of companies known as the Global Export Sales Organisation or GESO. Nexans SA also tendered a number of documents. 41 Mr Noonan was cautious to the point of being guarded about a number of matters which I will identify later in these reasons. I have concluded that he did not have any detailed knowledge of the GESO or its operations and, on this topic, I think the information in the documents is more reliable. Subject to these matters, I find that Mr Noonan was generally a satisfactory witness. 42 The ACCC carries the onus of proof and the standard of proof is on the balance of probabilities. That remains the position throughout the case regardless of the nature of the allegations (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others [1992] HCA 66; (1992) 110 ALR 449 at 449-450). However, the conduct alleged against Prysmian and Nexans SA is such that, if proved, may lead to the imposition of pecuniary penalties under s 76 of the Trade Practices Act. Pecuniary penalties clearly have a punitive aspect and that is a matter I must take into account in determining whether I am satisfied that the allegations have been proved (Evidence Act 1995 (Cth) s 140; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J (as his Honour then was)). 43 The ACCC asked me to draw inferences adverse to Prysmian and Nexans SA from the failure of each of these companies to call witnesses that each of them might reasonably be expected to have called. In its written outline of closing submissions, the ACCC identified persons who could have been called, but were not, particularly in the case of Nexans SA (paragraph 31). For their part, Prysmian and Nexans SA identified certain persons whom they contended the ACCC could and should have called. The general principles where a party, without sufficient explanation of his or her absence, does not call a witness they might reasonably be expected to call and that person might be presumed to be able to put the true complexion on the facts are as follows. First, the evidence given on the other side might be more readily accepted because it has not been contradicted. Secondly, an inference in favour of the other party might be more readily drawn in the absence of the witness and it is open to conclude that the person not called would not have assisted in throwing doubt on the inference (Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J). A party's failure to call a person cannot be used to fill evidentiary gaps in the other party's case (Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2013] FCA 909; (2013) 310 ALR 165 at [2960]). In the case of Nexans SA, the ACCC asked Mr Noonan about the whereabouts and availability of a number of persons. It did not have a similar opportunity in the case of Prysmian because it did not call any witnesses. Nevertheless, the onus was on Prysmian to explain the absence of relevant witnesses from the witness box and it did not discharge that onus (Heydon J, Cross on Evidence, 10th ed, LexisNexis Butterworths, Australia, 2015). For the most part where I have drawn inferences in favour of the ACCC's case, I have been able to do so without any particular reliance on the failure of the respondents to call evidence. In those areas where I have not drawn inferences in favour of the ACCC's case, and the most notable of these are the relationship between the Executive Committee and the GESO (at [166]) and Nexans SA's action in relation to the Snowy Hydro Project (at [202]), I consider that there are evidentiary gaps which cannot be overcome by the application of the above principles.

Mr Osada and the evidence concerning the A/R Cartel Agreement and the Snowy Hydro Project Agreement 44 Mr Osada's evidence-in-chief was directed to three main topics, being the operations of the A/R Cartel Agreement, the making of the Snowy Hydro Project Agreement, and three other projects in Australia in which the participants in the A/R Cartel Agreement were involved. 45 In his position at JPS of Specialist between 2001 and 2004 or 2005, Mr Osada reported to one of two group managers and those group managers, in turn, reported to the general manager of JPS who, at the relevant times, was a Mr Joji Yamaguchi. Mr Osada said that he was responsible for a specific geographic sales area which did not include Australia and that he did not have direct contact or dealings with customers in Australia. He said that after he became Group Manager at JPS in 2004 or 2005, he was directly involved in dealing with customers in Australia and that, from time to time, he travelled to Australia. 46 After Mr Osada had taken up his position with JPS in 2001, he began assisting Mr Yamaguchi with certain arrangements which JPS had with its competitors. Between 2001 and 2004, Mr Osada, on behalf of JPS, communicated with major competitors of JPS about the supply of high voltage (and in the case of land cables extra high voltage) land and submarine cables in various countries, including Australia (but not including the United States of America). 47 The competitors with whom Mr Osada communicated with were as follows: (1) two Japanese companies, being Viscas and Exsym; and (2) two European companies, being Prysmian (previously known as Pirelli) and Nexans. 48 Viscas, Prysmian and Nexans supplied both land and submarine cables. Exsym supplied mainly land cables and not submarine cables. Mr Osada referred to these companies, including JPS, as the "participants" and he referred to JPS, Viscas and Exsym as the Japanese participants, and Nexans and Prysmian as the European participants. 49 Before proceeding further, the following matter should be noted. I think that it was established in the cross-examination of Mr Osada that he acted as Mr Yamaguchi's assistant, rather than independently. In other words, he was acting under Mr Yamaguchi's direction. Ultimately, I do not think that it makes a great deal of difference in terms of the effect of Mr Osada's evidence. 50 Mr Osada's understanding of the participants and their representatives was as follows: (1) Viscas: Mr Tsubaki and Mr Morita; (2) Exsym: Mr Toshihisa Inoue, Mr Nakamura and Mr Nakajima; (3) Prysmian: Mr Gianfranco Acquaotta, Mr Federico Corbellini, Mr Alan Jones and Mr Richard Comber; and (4) Nexans: Mr Jeanmarie Jay and Mr Alain Romand. 51 The representatives of the participants communicated with each other mainly by email, but on occasions they communicated by telephone or facsimile. The representatives of the participants also met in person from time to time, perhaps once every three to five months. 52 A person wishing to purchase a high voltage land cable or submarine cable might want a budgetary price or a quotation or might issue an invitation for a manufacturer or supplier to tender for the project. Where that occurred in the case of one of the participants, then the practice was that that participant would notify the other participants of the project. Mr Osada was involved in this process and he produced, as an example, the notification that he gave to the participants in relation to the Snowy Hydro Project on 12 September 2003. The email was as follows: From: Takeo Osada ˂osada.takeo@jpowers.co.jp˃ Sent: Friday, September 12, 2003 7:39 AM (GMT) To: Jeanmarie.Jay@nexans.com; watanabe.yasutoshi@jpowers.co.jp; yamaguchi.joji@jpowers.co.jp; federico.corbellini@pirelli.com; e-tsubaki@viscas-j.co.jp; Toshihisa_Inoue@exsym.co.jp; robert.comber@pirelli.com Subject: Inquiry Notification, Australia Dear Mr. Jay: Inquiry Notification Country; Australia Project Name; Contract No. 90061 Customer; Snowy Hydro Bid date; Oct. 10, 2003 Voltage; 330kV Insulation; Fluid filled Quantity; 525 meters plus 555 meters option A is interested and would like to ask preference. Best regards T.Osada for J. Yamaguchi osada.takeo@jpowers.co.jp 53 As can be seen, with this particular notification was a request for an A preference. 54 Mr Osada said that he was the Japanese "window" for communications with the European participants. Mr Jay was the European "window". 55 Mr Osada described how the arrangement or understanding between the participants worked in practice in paragraphs 17-30 inclusive of his affidavit. He described the steps in the process, including the following: receipt of an inquiry as to a project; a request from the A Group or the R Group for preference; agreement at the Group level as to which group would receive preference; agreement within the Group as to who would be the allottee; factors taken into account in deciding who would be the allottee; notification of prices, and the scope of projects covered by the agreement. The respondents objected to this evidence on the ground that it could not be admitted because it was irrelevant (s 56(2) of the Evidence Act) and that it infringed the opinion rule (s 76(1) of the Evidence Act). In addition, the respondents submitted that it should not be admitted because the probative value of the evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to them, the evidence was misleading or confusing or would cause or result in undue waste of time (s 135 of the Evidence Act). I ruled that the evidence should be admitted and I said that I would give my reasons for that ruling in my reasons on the substantive application. 56 The evidence was plainly relevant because it went to the existence of the A/R Cartel Agreement. As I understood it, the gravamen of the respondents' objection was that the statements by Mr Osada were expressions of opinion and were rendered inadmissible by the opinion rule. The statements were inferences from observed and communicable data (Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352 ("Lithgow City Council v Jackson") at [27] per French CJ, Heydon and Bell JJ). I accept that Mr Osada's evidence in paragraphs 17-30 is expressed in very general terms and I think that it does contain a number of conclusions which are properly characterised as opinions. However, I considered that the evidence was admissible because it fell within the terms of s 78 of the Evidence Act. I accept that Mr Osada, albeit Mr Yamaguchi's assistant, was the Japanese "window" for or in relation to the arrangement or understanding, and I accept that he had sufficient knowledge of the events about which he was to give evidence. The evidence fell within the terms of s 78 of the Evidence Act because the facts that form the basis of the opinion were so numerous and evanescent that they could not be held in the memory and detailed to the Court as they appeared to Mr Osada at the time (Lithgow City Council v Jackson at [46] per French CJ, Heydon and Bell JJ; Australian Competition and Consumer Commission v Air New Zealand Ltd and Another (2012) 207 FCR 448 at [71] and [72] per Perram J). I considered whether the evidence should be excluded by reference to one of the grounds in s 135 of the Evidence Act. I considered that the evidence was clear and, therefore, it should not be excluded on the basis that it was misleading or confusing. Nor did I think that the evidence would cause or result in undue waste of time. Although the evidence is very general, I considered that it had substantial probative value, particularly when the contemporaneous documentation was taken into account. I did not consider that the probative value of the evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the respondents. 57 Mr Osada's evidence was that when an inquiry in relation to a project was received, the following steps were taken. The first step involved the participants agreeing as to which of them would be allocated the project out of the group of participants who had been asked by a potential purchaser to quote or lodge a tender in relation to the project. This could involve agreement at two levels. The Japanese participants were referred to as the "A" Group and the European participants were referred to as the "R" Group. The A Group may ask the R Group for preference or vice versa. In the email dated 12 September 2003 (at [52]), the A Group asks for preference. If the Groups agreed as to which of them should have preference, then the companies within the particular group (i.e., the A Group or the R Group) would decide as between themselves which of them was to be given preference. In determining which participant would be the allottee in relation to a particular project, the following matters would be taken into account: (1) whether a participant had been involved in assisting the company to put together the tender specifications at the pre-bid stage; (2) whether a participant had a long relationship with the particular company; (3) whether the project was a replacement or upgrade of work previously done by a participant; and (4) work levels of the participants. 58 The decision-making usually occurred by an exchange of emails, sometimes telephone calls and, on occasions, meetings in person. Sometimes the Japanese participants met before communicating with the European participants. 59 If the participants could not agree about the allottee of a project, then they could agree a minimum price above which all of them would quote or agree that they could quote as they saw fit. Projects for which participants could set their own prices were referred to in communications between participants as "FF" or "fighting free" or "friendly free". 60 The second step, once the allottee had been identified, was that that company would notify a price to the other participants. This was the price below which the notified party should not tender so as to ensure that the allottee secured the project. It could be a notification from group to group or from the allottee to other participants. The communication was referred to by the participants as a Price Guidance. It is important to note, having regard to one of the arguments advanced by the respondents, that Mr Osada said that not all participants submitted prices for a project and that the usual course was that it would only be those participants invited by the customer to do so who would submit a tender or price. 61 Mr Osada's understanding was that the agreement between participants covered all projects for land cables above 220kV and all projects for submarine cables, although it was the case that some projects for land cables below 220kV were discussed and that the participants would try to make an arrangement if they thought they could. 62 A record in the form of a table was kept of the projects which were allocated and Mr Osada referred to this record or table as a Position Sheet. The practice was that initially the Position Sheet was prepared by the European "window" who sent it to Mr Osada from time to time and before and after meetings. At meetings, Mr Osada saw that other participants had copies of the Position Sheets and at times, the European "window" distributed the Position Sheets when the participants met in person. The European "window" updated the Position Sheets after meetings to record what had been agreed. 63 Mr Osada produced a number of emails passing between mainly Mr Jay at the email address Jeanmarie.jay@nexans.com and himself dealing with the updating of the Position Sheets between November 2001 and March 2004. I do not need to deal with those emails in detail. It is sufficient to say that they show requests for current or amended Position Sheets before or after A/R meetings (which Mr Osada identified as meetings of the participants) and included responses from Mr Jay, including a response to which he attached a "tentative draft" and advice that he would bring paper copies to the meeting. There is a statement in an email in December 2001 to the effect that the position for R was totally unacceptable. There is also an email dated 20 February 2002 from Mr Jay to Mr Osada where Mr Jay seems to be discussing the possibility of involving another party in the A/R Cartel activities. 64 Mr Osada also produced emails which passed between participants in the A/R meetings, including emails which passed between Mr Acquaotta of Pirelli Cavi e Sistemi Energia S.p.A. and Mr Osada about A/R meetings in early 2002. 65 Mr Osada also produced a copy of a Position Sheet showing the information prepared by the European "window" and further information which he, Mr Osada, added. The Position Sheet contains various columns with headings, and the European "window" prepared the table up to the column headed "RA Totals" which showed the value in millions of US dollars of the projects allocated to the European participants. On 16 December 2002, Mr Osada added to the Position Sheet his own notes concerning the projects which were relevant to the Japanese participants. His reason for doing that was to compare the position among the Japanese participants and to record when they each received inquiries or were allocated projects or both. The Position Sheet as amended by Mr Osada was distributed by him to the Japanese participants. 66 Mr Osada produced the following additional Position Sheets: (1) 17 November 2003 which includes a reference to the Snowy Hydro Project; (2) 9 January 2004 (including his amendments) which includes a reference to the Snowy Hydro Project; and (3) 26 March 2004 which includes a reference to the Snowy Hydro Project. 67 Quite apart from the Position Sheets, Mr Osada kept his own table of all cable projects in which JPS had an interest. The projects included, but were not restricted to, the projects which were the subject of an allocation between the participants. For the Snowy Hydro Project, the table shows a reference number of L3, the country as Australia, the customer as Snowy Hydro, the project as Contract No 90061, the voltage as 330, the quantity as 0.5 km, the type as fluid filled, and the due date as 10 October 2003. The comments Mr Osada made in the table were as follows: Reported and asked for A - Pref (JP 030912 [i.e., 12 September 2003]). Agreed on R-Pref. (030924 [i.e., 24 September 2003). Guidance received (031006 [i.e., 6 October 2003]). 68 Mr Osada, who said that the participants met at three to five monthly intervals, produced the notes he kept of the meetings which were held on 14 November 2002 and 27 November 2003 respectively. 69 The attendees at the first meeting were recorded in the notes by their initials and an abbreviation for the company name. I am satisfied that at the meeting on 14 November 2002, there were the following attendees: (1) Nexans: Mr Romand and Mr Jay; (2) Pirelli: Mr Jones and Mr Corbellini; (3) Viscas: Mr Tsubaki and Mr Morita; (4) JPS: Mr Yamaguchi and Mr Osada; and (5) Exsym: Mr Toshihisa Inoue; Mr Nakamura and Mr Nakajima The notes record details of various projects around the world. 70 At the meeting on 27 November 2003, the attendees were Mr Romand, Mr Jay, Mr Corbellini, Mr Tsubaki, Mr Inoue, Mr Yamaguchi and Mr Osada. Again, these notes record details of various projects around the world. 71 Mr Osada said, and I accept, that at some of the meetings he attended, the participants discussed submarine and land cables in Australia. He said, and I accept, that the meetings usually occupied most of a day and that they were arranged particularly for the purposes of the arrangements between the participants and, so far as he could recall, were not held in conjunction with conferences or meetings arranged for other purposes. 72 In Mr Osada's notes of the meeting held on 27 November 2003, the following note appears under the heading "3. Current": "Australia, Snowy Hydro stop, 0.3M RP". 73 I accept Mr Osada's explanation of this note. The note related to a current project which was a project which was the subject of discussion or arrangements between the participants, but which had not yet been awarded to a particular supplier by a customer. The "0.3M" is a reference to a project value of US$300,000 and the "RP" is a reference to the fact that the allottee was Prysmian of the R Group of participants (i.e., the European participants). Mr Osada could not recall the meaning of the word "stop". 74 It is convenient to record at this stage that I received into evidence notes of meetings held in Zurich on 18 February 1999, London on 26 July 1999 and Kuala Lumpur on 19 October 1999. These notes were produced by Sumitomo Electrical Industries Ltd which owned half of the shares in JPS between July 2001 and 31 March 2014 and was an applicant for immunity. I admitted the documents into evidence because I was satisfied that they had come from the business records of Sumitomo Electrical Industries Ltd. 75 I am satisfied that there was a meeting in Zurich and that representatives of Alcatel (Mr Romand), Pirelli (Mr Tessari) referred to as "R", and Sumitomo (Mr Yamaguchi) and other parties referred to as "A" attended. Later in these reasons, I will identify the relationship between the Nexans Group of companies and Alcatel and Mr Tessari's involvement in the Pirelli Group of companies. I am satisfied that at the meeting in Zurich, a Position Sheet was discussed. 76 I am satisfied that there was a meeting in London and that Mr Romand, Mr Tessari, Mr Yamaguchi and others attended and that there was reference to "A" and "R". There is a reference in the notes to R agreeing that "[i]n principle, below 220kV is free" and "A/R have a routine and regular meeting to exchange the situation". There is reference to "A/R" agreeing to the next meeting being held in Kuala Lumpur on 19 October 1999. In addition, the following appears in the notes: R proposed that A should nominate authorised A-cordinator to avoid mis. communication because the last Egypt Tender (Composit one) had been Free due to the time limit and both cordinators' absence. A noted but partially". 77 I am satisfied that there was a meeting in Kuala Lumpur on 19 October 1999 and that Mr Romand, Mr Jay, Mr Tessari, Mr Yamaguchi and others attended the meeting. There is reference in the notes to "A coordinator" and "R strongly requested A to nominate A coordinator to avoid misunderstanding/miscommunication between A and R". There is a reference to a Position Sheet and the allocation of two projects in Dubai and one in Kuwait which "A/R finally decided … would be free ...". 78 The notes of these meetings support the conclusion that in 1999, there was an arrangement or understanding similar to that described by Mr Osada and referred to as the A/R Cartel Agreement between Sumitomo, Alcatel, a Pirelli company and others. 79 I turn now to Mr Osada's evidence about the Snowy Hydro Project. Mr Osada's notification of the project by email to the other participants is set out above (at [52]). Mr Osada's email asks for an "A" preference. Mr Osada said that he could not recall discussing the matter with Viscas and Exsym, but thinks that he would have done so before asking for an "A" preference. He said that he would not have asked for such a preference from the European participants without discussions with Viscas and Exsym having occurred. 80 Mr Osada received an email from Mr Inoue of Exsym on 16 September 2003 and in that email, Mr Inoue advised that Exsym had also received notice of the project. Mr Inoue's email is in the following terms: From: Inoue Toshihisa ˂Toshihisa_Inoue@exsym.co.jp˃ Sent: Tuesday, September 16, 2003 4.11 AM (GMT) To: Takeo Osada ˂osada.takeo@jpowers.co.jp˃ Subject: Re: Inquiry Notification, Australia Dear Mr. Osada Received same inquiry as reported below which is repalcement [sic] of BICC/Pirelli circuit installed in 1961 and 1959 respectively. Thanks and best regards EXM/T. Inoue ******************************************** EXSYM Corporation T. Inoue 1-8-10, Azabudai, Minato-ku, Tokyo 106-0041, Japan Tel: +81-3-4523-5030; Fax: +81-3-4523-5070 E-mail: Toshihisa_Inoue@exsym.co.jp ********************************************* The reference to the "same inquiry as reported below" is a reference to Mr Osada's email of 12 September 2003. 81 Mr Inoue's email refers to the project as one involving the replacement of a "BICC/Pirelli circuit" and Mr Osada said, and I accept, that that would be a factor favouring allocation of the project to Prysmian. 82 Mr Osada received an email from Mr Tsubaki of Viscas dated 18 September 2003 which dealt with another project in Australia. However, it is convenient to refer to it at this point because it identifies the context in which Mr Tsubaki sent an email dated 22 September 2003. I will refer to this project as the Energex 110kV project. The email of 18 September 2003 was as follows: From: Eiji Tsubaki ˂e-tsubaki@viscas-j.co.jp˃ To: YAMAGUCHI(JPS) ˂yamaguchi.joji@jpowers.co.jp˃; WATANABE(JPS) ˂watanabe.yasutoshi@jpowers.co.jp˃; OSADA(JPS) ˂osada.takeo@jpowers.co.jp˃ Cc: MORITA˂t-morita@viscas-j.co.jp˃ Sent: Thursday, September 18, 2003 11:42 AM Subject: Inq. Not./Australia 110kV Oil-filled Cable Dear Mr. Osada, Please be notified that VC received following inq.; Country … Australia Customer … ENERGEX Tender No. CJ57 Tender C/D … Oct. 8, 2003 Cable … 110kV AL-Oil Filled Cable 1Cx300mm2 … 1,680m Best regards, VC/E. Tsubaki 83 On 22 September 2003, Mr Osada received a second email from Mr Tsubaki of Viscas which read as follows: From: Eiji Tsubaki ˂e-tsubaki@viscas-j.co.jp˃ Sent: Monday, September 22, 2003 6.17 AM (GMT) To: YAMAGUCHI(JPS) ˂yamaguchi.joji@jpowers.co.jp˃; WATANABE(JPS) ˂watanabe.yasutoshi@jpowers.co.jp˃; OSADA(JPS) ˂osada.takeo@jpowers.co.jp˃ Cc: MORITA(???????) ˂t-morita@viscas-j.co.jp˃ Subject: Fw: Inq. Not./Australia 110kV Oil-filled Cable Dear Mr. Osada, I think that as yet the inquiry report below hasn't been reported to R yet. Please check. In OF cases even if less than 220kV reporting is required isn't it? Can {you/they} back away from this for A instead of 330kV? Tsubaki The "inquiry report below" was a reference to the email dated 18 September 2003. 84 Mr Osada's translation of this email differed from Ms Shimoji's translation. He said that it read as follows: Dear Mr Osada, I believe that the inquiry below has not been reported to R. Please confirm. In the case of OF, is a report necessary even when it is less than 220kV? Can we have an A-preference for this instead of the 330kV one? However, none of the parties suggested that anything turned on the difference in translations. 85 Mr Osada did not have an independent recollection of this email, but he was able to say that the Snowy Hydro Project was the only 330kV cable project which he had recorded in his notes as being on foot in Australia at the time. He understood Mr Tsubaki of Viscas to be asking whether the A Group could have preference for the Energex 110kV project rather than the Snowy Hydro Project. 86 Mr Osada sent an email to the other participants in relation to the Snowy Hydro Project on 24 September 2003. It read as follows: From: Takeo Osada ˂osada.takeo@jpowers.co.jp˃ Sent: Wednesday, September 24, 2003 5:44 Am (GMT) To: Jeanmarie.Jay@nexans.com; watanabe.yasutoshi@jpowers.co.jp; yamaguchi.joji@jpowers.co.jp; federico.corbellini@pirelli.com; e-tsubaki@viscas-j.co.jp; Toshihisa_Inoue@exsym.co.jp; robert.comber@pirelli.com Subject: Aus. Snowy Hydro Dear Mr. Jay: We agree on R-Pref. Please send guidance by September 30. Best regards Inquiry Notification Country; Australia Project Name; Contract No. 90061 Customer; Snowy Hydro Bid date; Oct. 10, 2003 Voltage; 330kV Insulation; Fluid filled Quantity; 525 meters plus 555 meters option T. Osada for J. Yamaguchi osada.takeo@jpowers.co.jp 87 Mr Osada said that he could not have advised Mr Jay that the Japanese participants agreed on an "R-Pref." (i.e., an R preference) without the European participants requesting such a preference (although he does not have a record of such a request) and without the Japanese participants having discussed the request and agreed to it. 88 Mr Osada's email dated 24 September 2003 asks for guidance by 30 September 2003. On 3 October 2003, Mr Comber of Pirelli sent the guidance by email and it was in the following terms: From: Comber Robert, IT ˂robert.comber@pirelli.com˃ Sent: Friday, October 3, 2003 12:19 PM ( GMT) To: Takeo Osada ˂osada.takeo@jpowers.co.jp˃; Jeanmarie.Jay@nexans.com; watanabe.yasutoshi@jpowers.co.jp; yamaguchi.joji@jpowers.co.jp; Corbellini Federico, IT ˂federico.corbellini@pirelli.com˃ e-tsubaki@viscas-j.co.jp; Toshihisa_Inoue@exsym.co.jp Subject: Re: Aus. Snowy Hydro Dear Mr. Osada, I apologize for rather late reply. Hereunder you will find DDP prices in AUS Doll (inclusive of your commission and GST): -cable: 510/m -Outdoor termination: 121,000. -Oil imm termination: 101,500. -Joint: 60,400 Thanks. Best regards, Robert L.P. Comber HV Systems Ph 0039-02-64422936 Fax 0039-02-64422682 Mr Osada said, and I accept, that "oil imm" refers to "oil immersed termination" which is a reference to the particular type of end to the cables. I will refer to Mr Comber's email as the Price Guidance. 89 Mr Osada said that when JPS prepared its own tender for the Snowy Hydro Project, he would then have notified the person in JPS responsible for the Australian market of the pricing level that it was agreed that JPS would tender at. He does not have a record of that communication in relation to the Snowy Hydro Project. I think that the evidence of Mr Osada is admissible based, as it is, on his practice. Mr Osada said that for some projects in Australia, JPS manufactured cable for supply by Mitsui & Co, Japan, or Mitsui's Australian subsidiary, to the customer in Australia. Prior to the formation of JPS, there had been a similar relationship between Sumitomo and Mitsui in Australia, and Mitsui was frequently the representative of Sumitomo for land cable projects in Australia. After the formation of JPS, this relationship continued between JPS and Mitsui. JPS had a similar relationship with Marubeni Metals in relation to submarine cable projects. Mr Osada said that neither Mitsui nor Marubeni Metals were involved in the arrangements between the participants. 90 Mr Osada produced an email from Mr Hideki Matsuura of JPS to Mitsui & Co, Japan, dated 8 October 2003. Mr Matsuura was a member of the sales staff of JPS who reported to a group manager and whose role included preparing quotations for JPS projects. The email was to Mitsui Japan and attached documents for "Snowy Hydra [sic]/Australia". It referred to a price or total amount of "about A$690K". 91 I turn now to Mr Osada's evidence about other projects in Australia in which the participants in the A/R Cartel Agreement were involved. There were three such projects. The evidence of the other projects was tendered by the ACCC as evidence of the existence of the A/R Cartel Agreement not of other contraventions. The respondents submitted that the evidence can only be evidence of Mr Osada's understanding of the identity of the participants and this was accepted by the ACCC. Nexans SA submitted that the evidence of the other projects could not be used as evidence of it carrying on business in Australia because it had not been pleaded. 92 The first project is the Energex 110kV project. I have already referred to two emails from Mr Tsubaki of Viscas (at [82] and [83]). Mr Osada advised the European participants of this project by email dated 22 September 2003. The email was in the following terms: From: Takeo Osada ˂osada.takeo@jpowers.co.jp˃ Sent: Monday, September 22, 2003 6:58 AM (GMT) To: Jeanmarie.Jay@nexans.com; watanabe.yasutoshi@jpowers.co.jp; yamaguchi.joji@jpowers.co.jp; federico.corbellini@pirelli.com; e-tsubaki@viscas-j.co.jp; Toshihisa_Inoue@exsym.co.jp; Subject: Inq. Not./Australia 110kV Oil-filled Cable Dear Mr. Jay, Inquiry Notification Country … Australia Customer … ENERGEX Tender No. CJ57 Tender C/D … Oct. 8, 2003 Cable … 110kV AL-Oil Filled Cable iCx300mm2 … 1,680m Best regards, T. Osada for J. Yamaguchi osada.takeo@jpowers.co.jp 93 By email dated 23 September 2003, Mr Inoue of Exsym advised Mr Osada that Exsym had had the same inquiry. Mr Tsubaki of Viscas wrote to Mr Osada and others with respect to this project by email dated 7 October 2003 in the following terms: From: Eiji Tsubaki ˂e-tsubaki@viscas-j.co.jp˃ Sent: Tuesday, October 7, 2003 1:27 AM(GMT) To: YAMAGUCHI(JPS) ˂yamaguchi.joji@jpowers.co.jp˃; WATANABE(JPS) ˂watanabe.yasutoshi@jpowers.co.jp˃; OSADA (JPS) ˂osada.takeo@jpowers.co.jp˃ Cc: MORITA ˂t-morita@viscas-j.co.jp˃ Subject: Fw: Inq. Not./Australia 110kV Oil-filled Cable Dear Mr. Osada, Please send the following message to R. QUOTE: As there has been no response from any of you for the below-mentioned case, this sould [sic] be treated as FF. Please confirm. Best regards, UNQUOTE: VC/E Tsubaki As Mr Osada explained, "FF" means "fighting free" or "friendly free" and that means that the project is not subject to the arrangement as to prices and that those participants submitting tenders or quotes in response to an approach from the customer could submit such prices as they wished. 94 Mr Osada wrote to Mr Jay and the other participants with respect to this project by email dated 7 October 2003 in the following terms: From: Takeo Osada ˂osada.takeo@jpowers.co.jp˃ Sent: Tuesday, October 7, 2003 2:45 AM (GMT) To: Jeanmarie.Jay@nexans.com; watanabe.yasutoshi@jpowers.co.jp; yamaguchi.joji@jpowers.co.jp; federico.corbellini@pirelli.com; e-tsubaki@viscas-j.co.jp; Toshihisa_Inoue@exsym.co.jp; robert.comber@pirelli.com Subject: Inq. Not./Australia 110kV Oil-filled Cable Dear Mr. Jay: As there has been no response from any of you for the below-mentioned case, this sould [sic] be treated as FF. Please confirm. Best regards, T. Osada for J. Yamaguchi osada.takeo@jpowers.co.jp 95 Mr Osada could not recall whether JPS or the other participants submitted competitive tenders for this project and nor could he remember the outcome of the project. 96 The second project involved two small projects for the supply of cable joints to Energy Australia in April 2003. I will refer to this as the Energy Australia Cable Joint Project. Mr Osada gave notice of this project to Mr Jay and the other participants by email dated 1 April 2003 which was in the following terms: From: Takeo Osada ˂osada.takeo@jpowers.co.jp˃ Sent: Tuesday, April 1, 2003 4:03 AM (GMT) To: Jeanmarie.Jay@nexans.com; watanabe.yasutoshi@jpowers.co.jp; yamaguchi.joji@jpowers.co.jp; federico.corbellini@pirelli.com; e-tsubaki@viscas-j.co.jp; Toshihisa_Inoue@exsym.co.jp; robert.comber@pireli.com Subject: Inqiry [sic] Notification (Cable Joints) Dear Mr. Jay: Inqiry [sic] Notification (Cable Joints) End User: Energy Australia Products: 12 x Transition Joints to connect existing BICC FF Cable and new OLEX XLPE. Please advise your comments The same customer also requested us to quote 6 x 132kV Trnsition [sic] Joints (existing Sumitomo's FF and new OLEX XLP). We would like you to cover if you are asked for quotation. T. Osada for J. Yamaguchi osada.takeo@jpowers.co.jp 97 Mr Osada said that Pirelli was the most likely allottee for that part of the project which involved the supply of 12 transition joints because the project involved an existing BICC cable (Pirelli had taken over their existing cable plants) and that JPS had requested preference for that part of the project which involved the supply of six transition joints because it involved an existing Sumitomo cable. 98 Mr Comber of Pirelli wrote to Mr Osada and others by email dated 1 April 2003 in the following terms: From: Comber Robert, IT ˂robert.comber@pirelli.com˃ Sent: Tuesday, April 1, 2003 8:24 AM (GMT) To: Takeo Osada ˂osada.takeo@jpowers.co.jp˃ Jeanmarie.Jay@nexans.com; watanabe.yasutoshi@jpowers.co.jp; yamaguchi.joji@jpowers.co.jp; Corbellini Federico, IT ˂federico.corbellini@pirelli.com˃; e-tsubaki@viscas-j.co.jp; Toshihisa_Inoue@exsym.co.jp Subject: RE: Inqiry [sic] Notification (Cable Joints) Dear Mr. Osada, Thanks for your mail. We confirm having the first enquiry calling for 12 trans joints. We will provide you with our relevant offer. We do not have the second enquiry for the time being, but would appreciate receiving your offer anyway. I believe we should possibly coordinate in order not to submit conflicting offers. Kindly comment. Thanks. Best regards, Robert L.P. Comber HV Systems Ph.0039-02-64422936 Fax 0039-02-64422682 E-mail: robert.comber@pirelli.com 99 Mr Comber wrote again on 3 April 2003 in the following terms: From: Comber Robert, IT ˂robert.comber@pirelli.com˃ Sent: Thursday, April 3, 2003 11:46 AM (GMT) To: osada.takeo@jpowers.co.jp Cc: Corbellini Federico, IT ˂federico.corbellini@pirelli.com˃; jeanmarie.jay@nexans.com Subject: FW: Inqiry [sic] Notification (Cable Joints) Dear Mr Osada, Following my email of Tue, please be advised we have quoted the 12 trans joints at a CFR price of 16,500 €. We would appreciate A adding a 6-7% commission. Thank you. Best regards, Robert L.P. Comber HV Systems Ph.0039-02-64422936 Fax 0039-02-64422682 E-mail: robert.comber@pirelli.com Of particular note in this email, is Mr Comber's request that A add a 6-7% "commission". 100 Mr Osada passed on Mr Comber's email of 3 April 2003 to the Japanese participants on that day. 101 On 29 April 2003, Mr Comber advised Mr Osada and others that Pirelli had lost against CCC "who quoted substantially lower". CCC was a manufacturer of accessories for power cables and was based in Europe. On the following day, Mr Osada passed that information on to the Japanese participants. 102 The third project involved the supply of 900 metres of fluid-filled cable for Energy Australia. I will refer to this project as the Energy Australia 900 metres fluid-filled cable project. Mr Osada sent a notification in relation to the project in the following terms: From: Takeo Osada ˂osada.takeo@jpowers.co.jp˃ Sent: Wednesday, October 8, 2003 5:57 AM (GMT) To: Jeanmarie.Jay@nexans.com; watanabe.yasutoshi@jpowers.co.jp; yamaguchi.joji@jpowers.co.jp; federico.corbellini@pirelli.com; e-tsubaki@viscas-j.co.jp; Toshihisa_Inoue@exsym.co.jp; robert.comber@pireli.com Subject: Inquiry Notification (Australia) Dear Mr. Jay: Inquiry Notification Country; Australia Project Name; Green Square Customer; Energy Australia Bid date; Budgetary Voltage; 132kV Insulation; FF Quantity; 900m Diversion work for old Sumi line. Request A-pref when out. If anyone is asked for budgetary price, please ask for guidance. Best regards, T.Osada for J. Yamaguchi osada.takeo@jpowers.co.jp 103 The project related to an "old Sumi line" (i.e., Sumitomo line) and, therefore, the most likely allottee was JPS. Mr Osada believes that he would have discussed the fact that it should be a JPS project with the other Japanese participants. 104 Mr Osada agreed in cross-examination that as a result of arrangements made with the ACCC, he had been interviewed about the matters in his affidavit in September 2009 and that he affirmed his affidavit in October 2014. He agreed that he was required to cooperate under a grant of conditional immunity. He agreed that he was aware that the immunity of his employer was in part conditional on his cooperation with the ACCC and that his own immunity was conditional on his cooperation. It seems that the ACCC also made arrangements to interview Mr Yamaguchi. 105 Mr Osada agreed in cross-examination that another person had drafted his affidavit, although he could not identify that person. He agreed that he could not be sure that some of the words in his affidavit were his words. He said that he had no idea what a "loose agreement" was which was a term he had used in his affidavit. 106 Mr Osada agreed in cross-examination that it was Mr Yamaguchi who coordinated the matters which he addressed in his affidavit and that he was Mr Yamaguchi's assistant. Basically he acted on Mr Yamaguchi's instructions and he had no authority to commit JPS to any particular course of action. When he referred in his affidavit to the fact that "we reached agreement" he was referring to Mr Yamaguchi reaching agreement. 107 In cross-examination, Mr Osada was shown the business cards of Mr Romand and Mr Jay which refer to them being from Nexans France and he agreed that he understood them to be from Nexans France. 108 Mr Osada agreed that the arrangement between the participants came to an end in about the middle of 2004. He agreed that Mr Yamaguchi was the coordinator and that he, Mr Osada, attended to the daily emails and the exchange of information by telephone. Mr Osada agreed that, in relation to a particular project, there was no commitment by a participant until there was some agreement or arrangement between participants. Mr Osada apparently agreed with the proposition that if a particular participant was not invited to tender on a particular project, then "this company has nothing to do with the project". I will need to come back and carefully consider the effect of this evidence. 109 Mr Osada agreed that he did not have any involvement in the Snowy Hydro Project. The parties who were invited to tender for the project were Mitsui & Co (Australia) Ltd, JPS, Pirelli and Midland Metals. 110 Prysmian submitted the ACCC had chosen not to call Mr Yamaguchi who was the coordinator of the arrangements even though it appears that it interviewed him. Mr Osada basically did as Mr Yamaguchi instructed and he did not have authority to commit JPS to arrangements. It submitted that Mr Osada had no direct contact or dealings with customers in Australia between 2001 and 2004 or 2005, and he did not have any involvement in the Snowy Hydro Project. It submitted that Mr Osada's affidavit and annexures was prepared by the ACCC and Mr Osada did not have reference to other documents in checking it. Nexans SA added to these submissions the fact that Mr Osada was not interviewed until 2009 and not asked to affirm his affidavit until 2014. 111 Prysmian also submitted that Mr Osada's recollection was deficient bearing in mind that the ACCC's case is that on 24 September 2003, the A Group members and the R Group members made an arrangement or arrived at an understanding that the Snowy Hydro Project would be allocated to a member of the R Group as an R Group preference. Mr Osada had no recollection or record of the R Group communicating and asking for an R Group preference. Mr Osada had no recollection of discussing the Snowy Hydro Project with the Japanese companies (i.e., Viscas and Exsym), although by reference to his practice, he thinks that that must have happened. He assumed the Japanese companies had agreed. He agreed that he would not have been the one to reach agreement with the Japanese companies. The other important point made by Prysmian in relation to Mr Osada's evidence is that (as I have already said) he agreed that if a company was not invited to tender, then it had "nothing to do with the project". Viscas and Exsym were not invited to tender for the Snowy Hydro Project. 112 Nexans SA was more critical of Mr Osada's evidence describing his evidence-in-chief as "plainly unreliable, indeed misleading, in fundamental respects". 113 In addition to a number of submissions similar to those made by Prysmian, Nexans SA made the following criticisms of Mr Osada's evidence. First, it submitted a number of expressions used by Mr Osada in the affidavit were expressions he had no real knowledge or understanding of, for example, "loose agreement", "arrangement" and he could not be sure whether the words "there were also other communications between the representatives about the participants' competitive behaviour" were his words. Secondly, it submitted that Mr Osada failed to mention the involvement (albeit lesser) of other companies. I record at this stage that I reject that criticism. The evidence suggested (and it went no further than that) that there might have been other companies interested in joining the A/R Cartel Agreement or companies which might have had a more limited involvement in the arrangement or understanding. Mr Osada did not mention that in his affidavit, but I do not think he is to be criticised for that. It is not as if the evidence establishes that there was a regular and major participant he neglected to mention. Thirdly, Nexans SA submitted that Mr Osada provided no explanation of the various Position Sheets. That is true, but of no particular significance if the substance of his evidence is accepted. Fourthly, Nexans SA submitted that, in light of the matters it identified, Mr Osada's evidence about how the A/R Cartel Agreement worked in practice must be qualified by the preceding matters. I am not sure what it means by that submission. I think Mr Osada was able to give the evidence he did. He was involved in the arrangement and the contemporaneous documentation supports his evidence. 114 In the result, I think Nexans SA's major points were similar to those of Prysmian, that is to say, that Mr Osada had no recollection or record of the R Group requesting an R preference in relation to the Snowy Hydro Project and he had no recollection of discussing an R preference with the Japanese companies and, in any event, he did not have the authority to agree an R preference with the Japanese companies. The other point is that Nexans relies heavily on Mr Osada's evidence that a company not invited to tender (such as Nexans SA in the case of the Snowy Hydro Project) "has nothing to do with the project". Nexans SA also relies on Mr Osada's evidence that he understood Mr Romand and Mr Jay to be from Nexans France. 115 I accept Mr Osada's evidence as far as it goes. As I have said, I think that he was generally a satisfactory witness and his evidence is supported by contemporaneous documentation. I say "as far as it goes" because a number of factual matters remain to be considered. For example, there are issues as to whether Prysmian and Nexans SA were parties to the A/R Cartel Agreement and whether it involved the necessary degree of commitment to be an arrangement or understanding within the Trade Practices Act. Similar issues arise in relation to the Snowy Hydro Project Agreement, particularly in light of Nexans SA's submission that there is no evidence that it had anything to do with that agreement. The ACCC's case involved me inferring in relation to the Snowy Hydro Project that the A Group agreed to seek an A preference, that the R Group sought an R preference, and that the A Group agreed to an R preference. I will return to these issues.

The Snowy Hydro Project Tender Process 116 The evidence concerning the Snowy Hydro Project Tender Process was contained in documents tendered by the ACCC. There was something of a history to the process which I will identify. Before doing that, I will identify the equipment which was the subject of the process. It was a 330kV paper insulated, aluminium sheaved, PVC finished oil-filled cable 525 metres in length (with an option for 555 metres); a 330kV outdoor cable termination, including accessories; a 330kV transformer termination, including accessories, and 330kV straight through joint each with three separate ferrules to cater for the jointing of three combinations of new and existing cables or, in the alternative, 330kV straight through joint each with one ferrule which can be matched by the Principal to cater for the jointing of three combinations of new and existing cables. 117 A number of documents (mainly in the form of emails) were admitted into evidence which established that Mr Ed Chenery, Project Manager of Snowy Hydro Limited, was corresponding with Mr Butt about a leak in a BICC cable in 2002 and the first half of 2003. Prysmian's answers to interrogatories establish that Mr Butt was employed by Pirelli General plc between October 2001 and October 2003 inclusive and on secondment to Pirelli Cables Systems Pte Ltd. Mr Butt held the position of "HV Systems Area Manager (Asia-Pacific Area)". He was responsible for sales activities for HV systems in the Asia Pacific area and he reported to Mr Hans Neiman. It is not necessary to refer to the details of the correspondence. On 16 May 2003, Pirelli Australia provided a quotation for spare 330kV cables and cable accessories to Snowy Hydro Limited. The quotation was for the following prices, (exclusive of GST): (1) 330kV oil filled cable (525m) $213,675 (1A) 330kV oil filled cable (555m) $225,885 (2) Outdoor termination $97,996 (3) Transformer termination $82,466 (4) Straight through joint 3 separate ferrules No offer (4A) Straight through joint 1 ferrule $94,248

On 24 June 2003, Mr Chenery advised Mr Mills and Mr Butt that, although he had recommended to his superior that Snowy Hydro Limited purchase the cable and accessories from Prysmian, Mr Chenery's superior had told him that because of the relatively large cost of the work, there had to be a public tender. Mr Mills was employed by Pirelli Australia in a position called "Channel Manager". 118 Snowy Hydro Limited decided to issue invitations to those tenderers which it selected. On 12 September 2003, Mr Chenery instructed Ms Joanne Donnelly, Engineering and Projects, of Snow Hydro Limited, to send invitations to tender to the following: (1) Mitsui Ron Burns Mitsui & Co (Australia) Limited (2) Japan Power Systems Mr Jinno Atsuhide and Mr Mashio Shoji (3) Pirelli Ian Butt Area Manager Asia Pacific - HV Systems Pirelli Cable Systems Pty Ltd - Singapore; and Michael Mills - Regional Manager Utilities - New South Wales (4) Midland Metals Mr Jacques De Vries Midland Metals Overseas Pte Ltd 119 Pirelli Australia lodged a tender for the Snowy Hydro Project by a document dated 8 October 2003. It is not entirely clear when it was lodged, but in any event, it was accepted as a valid tender. The formal quotation was for a lump sum figure of $793,392. However, this was a mistake and would have been clearly known to be such by all those associated with the tender process. The tender indicated that the quoted price for 330kV cable 525 metres in length was $237,300, and the quoted price for the same cable 550 metres in length was $250,860. The quoted price for the outdoor termination was $108,884, and the quoted price for the transformer termination was $91,628. The quoted price for the second of the two alternatives for the straight through joint was $104,720. The total of these figures is $793,392. However, this is an error in that it adds together the alternatives of a cable of 525 metres in length, and a cable of 555 metres in length. On the basis of a cable 525 metres in length, the total quoted price is $542,532. The figures for the individual items is slightly more than a 10% increase in the figures which comprised the quotation given by Pirelli Australia on 16 May 2003. It seems that came about in the following circumstances. 120 Prysmian's answers to interrogatories state that Mr Ian Knowles was employed by Pirelli Cables and System SA Basilea from October 2001 to 31 December 2001, and by Pirelli General plc from 1 January 2002 to October 2003. He held the position of "Contracts Manager" and he was within the energy cable business and responsible for sales activities of the submarine energy system and high voltage system in the far east and middle east. He reported to Mr Gianfranco Acquaotta between October 2001 and 31 December 2001, and to Mr Tiziano Furlan between 1 January 2002 and October 2003. On 4 October 2003, Mr Knowles wrote to Mr Zenkis, an employee of Pirelli Australia, and Mr Mills in Australia and he said, relevantly: Peter/Mick, I have sent today, to your Heathcote Road address, a courier package that contains the majority of the tender details for the formal quote to Snowy Hydro Ltd. Hopefully you should see it early next week. There is 1 x Original and 1 x Copy for the customer, plus an additional copy for your office. I will send a copy to Ian butt separately. The documents have been set up for Mick to sign all the relevant pages. The main things that are left to be done are the following: *PCAL to produce the covering letter for section 1. I attach below some suggested wording but it only needs to be something brief. *PCAL to produce the tender form for section 2. *PCAL to produce the Supplier Information (Schedule 3) for section 5. We have already included the required details of similar works. *UK to complete parts B, C and D of schedule 6, which will e.mailed [sic] through on monday. The prices in Schedule 2 are based on the last ones we submitted, but adding the GST this time. Please do not make any alteration to the prices. As far as I can tell this should cover virtually all they ask for. Let me know if you find anything missing or incorrect. Once the documents are completed, it will be necessary for someone will [sic] take the tender to the customer to avoid any problems of submission. I hope everything is OK Regards Ian Knowles (Emphasis added). 121 Midland Metals Overseas Pte Ltd lodged a formal tender with Snowy Hydro Limited. That company's quoted price was $197,349.50 which was comprised of $85,249.50 for the cable of 525 metres in length, $52,200 for the outdoor termination, $36,100 for the transformer termination, and $23,800 for the straight through joint. The nominated manufacturer of the cable was LG Cable Ltd, South Korea. 122 Mitsui & Co (Australia) Limited lodged a formal tender with Snowy Hydro Limited. The formal tender was for $761,705 comprising $298,305 for the cable of 525 metres in length, $175,900 for the outdoor termination, $142,700 for the transformer termination, and $144,800 for the straight through joint. In the tender, Mitsui & Co (Australia) Limited was named as the bidding firm, Mitsui & Co Limited was named as the supplier, and JPS was named as the manufacturer. 123 By letter dated 17 February 2004, Snowy Hydro Limited accepted the tender made by Midland Metals Overseas Pte Ltd. 124 The following is to be noted. In the Price Guidance given by Prysmian on 3 October 2003 (at [88]), the total figure identified by Prysmian (assuming a cable length of 525 metres) is a total of $550,650. Pirelli Australia's total tender price of $793,392 is the total of its prices for items 1, 1A, 2, 3 and 4A. If the price for item 1A is excluded, the total tender price is $542,532. The price for item 1 or 1A should be excluded from the total tender price because the Invitation to Tender document makes it clear that items 1 and 1A are alternatives or, more accurately, item 1A is an option. Pirelli Australia's total quoted price for items 1, 2, 3 and 4 in its quotation given on 16 May 2003 was $488,385. That price was exclusive of GST. If GST of 10% is added to that figure, the resulting total tender price is $537,223.50. Having regard to Mr Knowles' email of 4 October 2003, it is fair to assume that, in approximate terms, the prices Pirelli Australia put forward in October 2003 were the same prices it put forward in May 2003 plus GST. 125 In Mr Matsuura's email to Mitsui & Co, Japan (at [90]), the instruction is given that the total price be about $690,000. The actual figure put forward by Mitsui & Co (Australia) was $761,705. 126 A comparison of the various figures, assuming a cable length of 525 metres is as follows: Pirelli Australia 16 May 2003 quotation $488,385 Price Guidance 3 October 2003 $550,650 Pirelli Australia 8 October 2003 tender $542,532 Email from Mr Matsuura of JPS to Mitsui Japan 8 October 2003 $690,000 approx Mitsui & Co (Australia) Limited October 2003 tender (JPS the manufacturer) $761,705

127 Prysmian submitted that there was nothing unusual about the tender price put forward by Pirelli Australia. It was effectively the same as its quotation in May 2003 plus GST. It is not surprising that the tender price in October 2003 is not materially different from the quotation in May 2003. However, that does not mean that there is a lack of connection between the Price Guidance and the tender price in October 2003. It indicates that it had a fairly clear idea of the figure it was going to quote before providing the Price Guidance.

Mr Noonan and the evidence concerning Nexans SA and the Nexans Group of Companies 128 Mr Noonan gave evidence about Nexans SA and companies within the Nexans Group of companies. The position he holds in the Nexans Group is set out above (at [40]). He was awarded a Bachelor of Science and then a Doctor of Jurisprudence from Stanford University. He holds practising certificates issued by the State of California and the District of Columbia in the United States of America. He was authorised to make his affidavit on behalf of Nexans SA. 129 Mr Noonan was international counsel at Alcatel NV (Brussels and Paris) from 1988 to 1992; general counsel of the American business of Alcatel Cable from 1992 to 1996; general counsel of the cables and components business of Alcatel from 1996 to 1998; and deputy general counsel of Alcatel from 1998 to 2000. 130 Mr Noonan gave his evidence by reference to the relevant period which he identified as the period from 1 October 2001 to 31 October 2001 (inclusive). During the relevant period, he was the general counsel and assistant secretary to the Board of Directors of Nexans SA. His primary responsibilities at Nexans SA during the relevant period were as general counsel of Nexans SA to perform or supervise the legal work for Nexans SA, and as assistant secretary of the Board of Directors of Nexans SA to deal with governance matters of Nexans SA. He also performed or supervised the legal work for Nexans Participations which he described as reviewing shareholders' resolutions in relation to the subsidiaries of Nexans Participations, including Nexans Australia Pty Ltd ("Nexans Australia"). Nexans Participations is a wholly owned subsidiary of Nexans SA. 131 The company's name is "Nexans" and "SA" is an abbreviation of the French words, "Société Anonyme" which is used in some contexts to identify the corporate form, but is not part of the company name. However, I have referred to the second respondent as Nexans SA to avoid confusion and I will continue to do so. 132 Nexans SA is a limited liability company incorporated in France and listed on the French Stock Exchange. Nexans SA was and remains the ultimate holding company of a large number of direct and indirect subsidiaries forming the Nexans Group. Nexans SA did not have any trading, manufacturing or operational functions during the relevant period. It did not have any plants or factories or any sales or production staff. It had only eight personnel, namely the chief executive officer and seven employees who were members of an executive committee. That remains the position today. Nexans SA was a holding company with no industrial or external commercial activities and, during the relevant period, and indeed at any other time, Nexans SA did not hold any inventory of products, such as medium voltage, high voltage or extra high voltage land based or submarine cables or any other cables or products. Mr Noonan said that Nexans SA did not have the capability or qualifications to bid for any project for the sale of high voltage cables or any other cables or products and did not do so at any relevant time. Nexans SA's two direct subsidiaries were Nexans France and Nexans Participations. The "high voltage activities of the Nexans group" were principally conducted by Nexans France and four subsidiaries of Nexans Participations, being Nexans Norway, Nexans Benelux, Nexans Deutschland and Nexans Suisse. 133 For almost all of the relevant period, the Board of Directors of Nexans SA consisted of 10 persons. Mr Gerard Hauser was the chairman of the Board and he was the managing director and chief executive officer of Nexans SA. None of the other directors were employees or members of the management team of Nexans SA or an employee, company officer or member of the management team of any subsidiary within the Nexans Group. 134 During the relevant period, the overall supervision by Nexans SA of the line management of the Nexans Group was undertaken by an executive committee comprising the chief executive officer, Mr Hauser, and seven employees of Nexans SA ("the Executive Committee"). 135 Mr Noonan said that the Executive Committee functioned as a supervisory board of management and that it was responsible for the overall oversight of activities undertaken by the Nexans SA subsidiaries which conducted the trading activities of the group. Mr Noonan said that the members of the Executive Committee of Nexans SA were not responsible in their capacity as members of the committee for line management of the business of the Group subsidiaries or any business division within those subsidiaries. He said that the role of the Executive Committee in relation to line management was to receive reports from line management about their activities, make recommendations to such line management, and approve or disapprove decisions relating to matters if they were of sufficient commercial importance or strategic consequence to merit consideration by members of the Executive Committee. 136 Although Nexans SA had only seven employees, the subsidiaries within the Nexans Group employed 17,993 employees in 2001, 17,132 employees in 2002, and 17,061 in 2003. The Nexans Group had different business sectors, including energy, telecom and electrical wires, and different geographical areas across the world, including France, Germany, "Other Europe", North America and "Rest of the World". 137 It is necessary to say something about events which led to the establishment of the Nexans Group of companies. I have referred above to minutes of meetings in 1999 which referred to Alcatel and Mr Romand. In 2000, the Alcatel group decided to sell a major part of the cable business activity owned by its various subsidiaries. The part to be sold consisted mainly of the electrical cable business, including the high voltage cable activity. At the time, Alcatel owned various cable businesses, including fibre-optic cables, telecom cables, power cables, and high voltage cables. In the last quarter of 2000, the various subsidiaries within the Alcatel group were reorganised with a view to forming a subgroup of companies which were owned by a company which was subsequently called Nexans SA. This was done in order to prepare the group of companies for sale. The Nexans Group was formed in or about November 2000. The principal business of the Nexans Group was the sale of electric cables. As part of the reorganisation, a company was formed which became Nexans France. Another company was formed which became Nexans Participations and, in or about December 2000, Nexans SA acquired both Nexans France and Nexans Participations. After those events, Nexans SA was listed on the French Stock Exchange and Alcatel sold its shares in the company. 138 Nexans SA's annual income is derived from fees for services it provides to subsidiaries within the Nexans Group and dividends received from Nexans France and Nexans Participations. Nexans France's income is derived from its trading activities, including the activities of its high voltage division, and Nexans Participations' income is derived from trading activities conducted by its subsidiaries, including the four subsidiaries referred to above (at [132]). During the relevant period, Nexans SA was responsible for centralised functions under internal arrangements it had with its subsidiaries and these included collecting and redistributing intra-group royalty payments to cover research and development costs, and managing, research and development across the Nexans Group, financing and centralised treasury and cash management functions to support the subsidiaries within the Nexans Group, and holding and licensing its rights in the Nexans name and logo to subsidiaries. 139 Mr Noonan gave evidence about the relationship between Nexans SA and Nexans Australia primarily, I think, to address the ACCC's case that Nexans SA was carrying on business in Australia. Nexans Australia was incorporated in New South Wales on 10 October 2000. Nexans Participations is the ultimate holding company of Nexans Australia. With effect from 1 January 2001, Nexans entered into an agreement with Nexans Australia which was called a "General Relations Agreement". Mr Noonan said, and I accept, that Nexans SA concluded agreements in substantially the same terms as the General Relations Agreement with all Nexans subsidiaries with effect from 1 January 2001. It is sufficient for me to describe the provisions of the General Relations Agreement in general terms. Under sections 2.1, 4.1(a) and Appendix B of the agreement, Nexans Australia is obliged to pay a percentage of its sales to Nexans SA and these funds are used to meet the costs of research and development programs and other activities. Broadly speaking, the services relate to research, development and engineering work; technical assistance; and patent protection and support in intellectual property matters. Under section 2.2, 4.1(b) and Appendix C of the agreement, Nexans Australia is obliged to pay a percentage of its sales as a "contract service charge" for the administrative and commercial services Nexans SA provides to the subsidiary. Mr Noonan gave a description of the services provided under section 2.2 as follows: (a) purchasing agreements for the benefit of all subsidiaries of the Nexans Group, whereby Nexans SA exercises its central purchasing function to negotiate reductions in price lists based on combined volumes of all subsidiaries within the Nexans Group, but for each subsidiary to contract for the purchase itself; (b) master insurance policies for the benefit of all the subsidiaries within the Nexans Group, whereby Nexans SA exercises its central insurance function to negotiate policy premiums according to the risk profile of the Nexans Group; (c) use of shared services experts such as the Legal Department which could be contacted by the subsidiaries for assistance, for example, to provide advice on international issues. 140 By a subcontracting agreement made as of 1 September 2001, Nexans SA delegated to Nexans France, with effect as of 1 January 2001 and with the consent of Nexans Australia, the invoicing and collection of payments pursuant to section 4.1(a) and the funding payments to be made, as the case may be, under section 12.1, pursuant to the terms of section 4.2 as amended, and the performance of the services described in section 2.2, and consequently the right to invoice and to receive the payments provided for under section 4.1(b). 141 Nexans SA signed a Central Treasury Agreement with each of its subsidiaries. Nexans SA has not been able to locate the agreement for the relevant period. At all events, Nexans SA financed it subsidiaries primarily by contributing capital or loans from Nexans SA itself or arranging loans from other subsidiaries within the Nexans Group or providing guarantees for loans obtained by banks. Where possible, Nexans SA organised a pooling of cash in order to optimise flows among the Nexans Group of companies. Mr Noonan described the purpose of the Central Treasury Agreement as solely for smoothing cash flow periodically according to the cash needs of the relevant subsidiary which could be uneven over time where, for example, there was a mismatch between revenues and expenses. 142 Nexans SA was the owner of trade marks of the Nexans brand name registered in various jurisdictions throughout the world. On 13 December 2000, Nexans SA registered a number of trade marks. On 16 August 2002, Nexans SA entered into a document entitled "Mark and Trade Name Licence Contract" with Nexans Australia. Under the contract, Nexans SA licensed the Australian trade marks to Nexans Australia for a period of 10 years. Nexans SA was given the right to use the trade marks: 1.1.1 in connection with its business operations, 1.1.2 as part of its company name and tradename, in a manner subject to approval by LICENSOR until revoked by LICENSOR, and 1.1.3 in connection with the products made by or for LICENSEE and/or in connection with its own services … 143 Nexans SA was also authorised to grant to its distributors a non-exclusive and non-transferrable authorisation to mention the trade marks for the sale and promotion of the licensed products in their own material, subject to conditions specified in the agreement. 144 There are a large number of companies in the Nexans Group. Direct or indirect subsidiaries of Nexans SA have production plants in 28 or 29 countries and Nexans SA has a commercial presence in more than 65 countries, including, as Mr Noonan put it, "an indirect subsidiary, Nexans Australia, incorporated in Australia". Mr Noonan said that the subsidiaries include subsidiaries which were the operating and trading entities that, relevantly, actively tender for high voltage contracts and employ staff involved in tendering for and delivering these projects. Mr Noonan said that, subject to the role of the Executive Committee as previously outlined, and functions under the General Relations Agreement, Central Treasury Agreement and the Trade Mark Agreement, Nexans SA was not, during the relevant period, involved in managing the downstream commercial operations of the subsidiaries within the Nexans Group. He said that each subsidiary contracted for its own work under its own name, determined its own prices, and negotiated its own contracts. It did not seek and was not subject to any general request to seek approval from Nexans SA for sales or transactions. Furthermore, Nexans SA itself did not sell or offer for sale, in the relevant period or at any time, any products in Australia, including medium voltage, high voltage or extra high voltage land based or submarine cables or any other cables or products. 145 Between 2001 and 2003, there was within the Nexans Group an organisation known as the GESO. The GESO was established in mid-1999 and was inherited from Alcatel in about 2000, when the Alcatel group was reorganised and Nexans SA was established as the ultimate parent company of the Nexans Group. 146 Mr Noonan described the GESO as a group of sales representatives from subsidiaries within the Nexans Group, the objective of which was to promote sales by subsidiaries from one area of the world to another. He said that the GESO's function was to assist with technical and commercial information to help the relevant subsidiary in the country in question to win business. He said that the contracting subsidiary alone was responsible for making pricing decisions, negotiating the terms and specifications of the sale of the products, and arranging for delivery of the products or, in the case of resale of products made by a different subsidiary, based on input from its internal suppliers. He said that the GESO was not involved in making any pricing decisions nor did it have any involvement in negotiating the specifications of the sale. Neither the GESO nor any member of the GESO was authorised to act on behalf of Nexans SA in relation to the trading by subsidiaries in the relevant country. Mr Noonan said that none of the members of the Executive Committee of Nexans SA was a member of GESO or participated in the commercial activities or the daily management processes of the organisation. 147 As I have said, Mr Noonan was general counsel and assistant secretary to the Board of Directors of Nexans SA during the relevant period. In those positions, he was responsible for putting in place and drafting any delegation of powers granted by the chief executive officer pursuant to his powers under the French Commercial Code L 225-56. There was also a power in the Board under the Articles of Association to delegate such powers as the Board considered appropriate. I should point out that the ACCC suggested that Mr Noonan was purporting to give evidence of foreign law and that, for various reasons, he could not do that. As it happens, the ACCC's attribution case does not turn on Nexans SA's power to delegate under French law. 148 Mr Romand and Mr Jay were not employees of Nexans SA and were not granted any delegation of power by the Board of Nexans SA or the chief executive officer. Nor was any document created or issued giving Mr Romand or Mr Jay authority to act on behalf of Nexans SA or permitting Mr Romand or Mr Jay to hold themselves out to be representatives of Nexans SA. 149 Mr Noonan attended all meetings of the Board except for one during the relevant period. He has reviewed the minutes of the meeting which he did not attend. He states that the Board did not consider any proposal for the delegation of its powers to Mr Romand or Mr Jay, did not make any delegation of its powers to Mr Romand or Mr Jay for the purposes of Article 19 of the Memorandum and Articles of Association or make any decision to authorise Mr Romand or Mr Jay to act on behalf of and bind Nexans SA, either generally or for any specific project, transaction or activity. The Board did not consider any reports, submissions or correspondence from Mr Romand or Mr Jay or make any decision to authorise Mr Romand or Mr Jay to represent Nexans SA, either generally or for any specific project, transaction or activity. The Board did not have before it or have produced to it any of the emails referred to in the relevant paragraphs in the Statement of Claim, or have before it or have produced to it any documentation that made any reference to the alleged A/R Cartel Agreement. The Board did not discuss the alleged A/R Cartel Agreement. The Board did not have before it or have produced to it any documentation that made any reference to the alleged arrangement or understanding referred to as the Snowy Hydro Project Agreement or the alleged agreement that Prysmian would be the allottee for the Snowy Hydro Project. The Board did not discuss the Snowy Hydro Project. Mr Noonan said that he had reviewed the available books and records relating to the delegation of powers of Nexans SA and at no time, in the relevant period, did the chief executive officer of Nexans SA make any delegation or give any authorisation to Mr Romand or Mr Jay. Mr Noonan said that Mr Romand and Mr Jay were never employees of Nexans SA. During the relevant period, no employee of Nexans SA had management responsibilities for high voltage power cable activities apart from Mr Yvon Raak whose title was president of the energy division. Mr Noonan makes the point (again) that the members of the Nexans SA Executive Committee were not line managers of divisions of the Nexans Group and did not participate in line management of any divisions that they supervised. 150 I have already set out some of the details in relation to Nexans Australia. None of the directors of that company were employees of Nexans SA. The business of Nexans Australia was the resale and distribution of products such as cables and related components manufactured by other subsidiaries within the Nexans Group (for example, subsidiaries in Europe or the United States of America) imported into Australia, New Zealand and the Pacific Islands. At no time was Nexans Australia a manufacturing or production entity. Nexans Australia managed its own business in undertaking the commercial activities referred to above. Nexans Australia required financial support from time to time in order to operate as a going concern which it obtained from "its ultimate parent company". 151 Mr Noonan was cross-examined about four broad topics. 152 First, he was cross-examined about the availability of Mr Romand, Mr Jay and other persons from the Nexans Group to give evidence in this proceeding. Mr Noonan agreed that he did not know of any reason Mr Romand and Mr Jay could not give evidence in this case. He also agreed that he did not know of any reason Mr Yvon Raak, Mr Guenter Machledt and Mr Patrick Barth could not have given evidence. Mr Raak was an employee of Nexans SA and a member of the Executive Committee. Mr Machledt was the Chief Executive Officer of GESO and a director of Nexans Australia. 153 Secondly, he was cross-examined about proceedings in the European Commission against or involving Nexans SA and Nexans France and other companies for anti-competitive conduct. It seems clear that there were proceedings in the European Commission against "Nexans", "Prysmian" (previously Pirelli) and other companies for anti-competitive conduct in relation to underground and submarine high voltage power cables from 1999 to approximately 2009. The anti-competitive conduct was said to be the operation of a cartel involving 11 producers. It is said that fines totalling €301,639,000 were imposed. I was not given a copy of the decision of the European Commission and I do not have precise knowledge of the procedure or of how the proceedings were conducted. It seems that Nexans France has been fined many millions of euros and that Nexans SA was made jointly responsible for a substantial part of the fine imposed on Nexans France. Mr Noonan said that "Nexans" had appealed against the decision. A number of employees of the Nexans Group of companies were interviewed. Mr Romand and Mr Jay were required to hand over their personal computers. A number of documents which had been deleted from Mr Romand's computer were retrieved by the European Commission. There were said to be some 10,000 documents held by lawyers in the United States of America acting for Nexans SA and Nexans France. The ACCC criticised a number of aspects of Mr Noonan's evidence and submitted that he was an unsatisfactory witness. It pointed to his refusal to acknowledge that the subject of the proceedings before the European Commission was a cartel known as the "A/R". It pointed to the fact that he had looked at only approximately 100 of the approximately 10,000 documents and had not looked at the list of documents or the records of interview. He had delegated a number of important tasks to a junior lawyer. The ACCC accepted that these were collateral matters. Mr Noonan was certainly very guarded as to a number of these matters, but ultimately I do not think that they lead anywhere. As far as Mr Noonan was concerned, the most contentious aspect of his evidence related to the GESO and its operations. For reasons I will give, I think the documents as to the GESO and its operations are a more reliable guide than the evidence of Mr Noonan. 154 The third major topic Mr Noonan was cross-examined about was Nexans SA's discovery of documents and the alleged inadequacy of that discovery. I have already referred to this matter and my decision in Australian Competition and Consumer Commission v Prysmian Cavi E Sistemia S.R.L. (No 11) [2015] FCA 876. 155 The fourth major topic Mr Noonan was cross-examined about was the GESO and its operations. This "organisation" was at the centre of the ACCC's attribution case, that is, its case that the conduct of Mr Romand and Mr Jay, although employees of Nexans France, could be attributed to Nexans SA. The ACCC contends that the GESO was controlled by the Executive Committee or members of the Executive Committee. The GESO organised sales or orders throughout the world. Mr Romand was a member of the GESO. In the circumstances, he and Mr Jay were agents of Nexans SA. Put in another way, the ACCC's case is that GESO was organised and managed at the parent company level (i.e., Nexans SA), it was a head office function, as counsel for the ACCC put it, and members of GESO, including Mr Romand, engaged in the anti-competitive conduct. 156 Mr Noonan was cross-examined at length about the GESO and its operations. However, before going to that cross-examination, it is convenient to state what the documents reveal about the GESO and its operations. 157 In October 2001, the GESO President was Mr Guenter Machledt. Mr Machledt was not an employee of Nexans SA and he was not a member of the Executive Committee. As I have said, in addition to his other roles, he was a director of Nexans Australia. An organisation chart of Nexans dated 13 March 2002 shows the GESO (and refers to Mr Machledt) as a department of Strategic Operations. Mr Bruno Thomas, who was a member of the Executive Committee, is shown as being in charge of that department. 158 The GESO was created under Alcatel. It is said that it was created in response to a desire to offer Nexans' customers greater proximity and more services. It was restructured in September 2000 when Nexans was created. The GESO consisted of 80 sales managers who were recruited from the different product line sales teams. The GESO teams had a presence in 20 countries in October 2001. GESO's orders for 2001 were predicted to total 400 million euros. This is of sales between subsidiaries, not of sales by the Nexans Group of companies. That is to be compared with actual group revenue in 2001 of approximately 4.78 billion euros. Mr Machledt is reported as saying in October 2001 that GESO "brings together all the teams and sales networks in a single organization, which enables Nexans to provide a global offering to its main markets". 159 The GESO was divided into eight geographical areas. Each area had an area manager who was in charge of a team of sales representatives and country managers. The area managers set the sales targets, their team's budget and they controlled expenditure. Each country was different and could involve different levels of industrialisation, infrastructure development and local competition. 160 The Nexans' organisation chart as at 13 March 2002 shows seven departments, each headed by a member of the Executive Committee. The seven departments are: Human Resources, Strategic Operations, Corporate Finance and Administration, Communication, Electrical Wires, Energy, and Telecom. There is also a section called Information Systems which is not controlled by a member of the Executive Committee. Mr Hauser, Chairman and Chief Executive Officer, is shown at the apex of the organisation chart. 161 There was a change to the organisational structure of the Nexans Group of companies in 2003. The details are sketchy. The following appears in the Nexans Group Annual Report for 2003: In 2003, we put in place a new organizational structure according to country and geographic area. The main aim of this change was to be closer to our customers to better enable us to promote the full range of Nexans products and solutions locally. We also turned our attention to the medium term in creating a cross-organizational department designed to give the Group a new marketing dimension and institute a strategic planning process. … A Strategic Operations Department has also been created. As well as providing operational support to the regions (R & D, Manufacturing, Purchasing, IT), this department supervises the strategy and marketing teams that analyse business and market trends … 162 There is an organisational chart of the Nexans Group of companies as at 11 June 2003. Again, Mr Hauser is shown at the apex of the organisation. There are seven departments and each department is headed by a member of the Executive Committee. The departments are as follows: Human Resources, Strategic Operations, Finance and Administration, Communications, Europe Area, North America and Asia Area, Rest of the World Area. The GESO and Mr Machledt are no longer shown on the chart. Various countries are identified in relation to the last three departments. North America and Asia area is headed by Michel Lemaire and includes Australia. 163 The GESO prepared reports, it seems on a monthly basis. A number of these reports were put before the Court. It is sufficient to refer to a couple of the reports by way of example. The GESO report for the month of November 2001 was distributed by Mr Arnaud Mathis to a number of persons, including the following members of the Executive Committee: Mr Hauser, Mr Portevin, Mr Lemaire, Mr Raak and Mr Thomas. It was also distributed to Mr Romand. The report consists of a number of tables and a memorandum. The tables (so far as I can tell) set out the orders received in the eight geographical areas referred to earlier. The memorandum is directed to a number of persons, including each of the persons referred to above. The memorandum is dated 13 December 2001 and the subject of the memorandum is said to be "Global Export Sales Organization (G.E.S.O.) Report - November 2001". The memorandum contains a number of headings. There is a section identifying positive and negative developments. There is a section which involves a competitors' survey and identification of major customer or national events with direct impact on the Nexans' business. There is a report of major tenders in preparation and of major pending tenders at the end of the month. In relation to the latter topic, there is a table setting out details of the country, customer, product type and customer decision date. The ACCC alleges that some of the projects shown on the Position Sheets prepared by Mr Jay and Mr Osada are shown in this table. I refer in particular to a project involving Kuwait and a customer identified as "MEW" and a project involving the UAE and a customer identified as "ADWEA". I accept that these projects are probably projects shown on the Position Sheets which were put before me. 164 Mr Noonan was challenged in cross-examination about a number of the statements he made about the GESO and its operations. Mr Noonan did not know a great deal about the monthly reports as he only saw them as part of the discovery process. Mr Noonan's statement that GESO comprised a group of sales representatives from subsidiaries within the Nexans Group was based on only the most general understanding of how GESO operated. It might be the case, but I am not disposed to so find based on Mr Noonan's evidence. I do not think that Mr Noonan knew a great deal about GESO and its operations. He did not know whether the recipients of the monthly reports met and he had not made any inquiry as to whether they had done so. Mr Noonan described GESO as a "virtual" organisation. Mr Noonan was taken to documents described as "GESO November Forecast 2001" and "Budget 2002" as far as order intakes are concerned and he said it was a forecast of orders. He said that the GESO was not an autonomous division with a profit and loss, that it did not manage factories and that it did not have an independent autonomous sales force. He considered that the GESO compiled statistics about the activities of companies in the Nexans Group. He described the purpose of the GESO as an attempt to increase export sales or cross sales in the group by having a more structured information exchange overlay to a pre-existing organisation. Mr Noonan denied that his statement that none of the members of the Executive Committee participated in the commercial activities or the daily management processes of the GESO or was a member of the GESO was false. He said that GESO came to an end in about June 2003 and that the reorganisation in June 2003 was a change from a product-orientated organisation to a geographic-orientated organisation. 165 My findings about the GESO and its operations are as follows. The starting point is Mr Noonan's evidence about the role of the Executive Committee which is set out above (at [135]). The ACCC's contention is that the GESO, controlled by members of the Executive Committee or prominent members of the Executive Committee, exercised a greater degree of control over the supply of land and submarine cables than is suggested by Mr Noonan's evidence about the role of the Executive Committee. The contention is that that is sufficient for attribution purposes, that is to say, for the purposes of attributing the conduct of Mr Romand and Mr Jay to Nexans SA. That state of affairs was not altered in a material way by the reorganisation which took place in about June 2003. 166 I am not prepared to make the finding for which the ACCC contends. There is insufficient evidence for me to do so. It is true that Mr Noonan could only give the most general evidence about the GESO and its operations and that he had not asked whether there were meetings of the GESO. However, the ACCC cannot establish its case by pointing to an absence of evidence from Nexans SA. I am not prepared to infer from the monthly reports and the absence of evidence from Nexans SA that there were meetings of the GESO. I am not prepared to infer that the Executive Committee of Nexans SA controlled the GESO in a direct sense or the sales to customers of land and submarine cables. The position is even less clear after the reorganisation in about June 2003.

The A/R Cartel Agreement 167 Based on Mr Osada's evidence and the documents, and subject to my consideration of whether the persons identified by Mr Osada were, in fact, representing Prysmian and Nexans SA respectively, and two matters, I find that there was an A/R Cartel Agreement with the provisions pleaded by the ACCC. The two matters are matters where the ACCC's pleading goes beyond, or is at least different from, Mr Osada's evidence. First, Mr Osada said, and I accept, that the A/C Cartel Agreement related to various countries, including Australia (but not the United States of America) whereas the ACCC's pleading refers to "worldwide" markets. Secondly, Mr Osada said, and I accept, that the factors taken into account in determining which participant would be the allottee were as I have set out above (at [57]). They did not include the matter identified in paragraph 16.9.1 of the ACCC's pleading (set out above at [14]). 168 The question which now arises is whether that was an "arrangement or understanding" within s 45(2)(b) of the Trade Practices Act.

An Arrangement or Understanding 169 The respondents submit that the ACCC has not shown that the parties to the A/R Cartel Agreement undertook the level of commitment necessary for the purposes of establishing an arrangement or understanding within s 45(2) of the Trade Practices Act. 170 The cases indicate that to establish an arrangement or understanding something more than a mere expectation as a matter of fact is required. At least ordinarily an arrangement involves an element of reciprocal commitment (Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission [2005] FCAFC 161; (2005) 159 FCR 452 ("Apco Service Stations") at [45]-[47]; Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Limited and Others [2009] HCA 19; (2009) 239 CLR 305 at [48] per French CJ and Kiefel J; Yazaki at [47]-[49]). 171 In Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (and Others) (1999) 92 FCR 375 ("ACCC v CC") the question was whether the agreement (or arrangement or understanding) of four construction companies to pay a "special fee" and an "unsuccessful tenderers fee" in relation to a project for which they were each tendering and to take those fees into account when preparing their respective tenders had contravened ss 45 and 45A of the Trade Practices Act. Lindgren J considered the meaning of an arrangement or understanding. His Honour quoted with approval two passages from the reasons of Smithers J in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291: … the existence of an arrangement of the kind contemplated in s 45 is conditional upon a meeting of the minds of the parties to the arrangement in which one of them is understood, by the other or others, and intends to be so understood, as undertaking, in the role of a reasonable and conscientious man, to regard himself as being in some degree under a duty, moral or legal, to conduct himself in some particular way, at any rate so long as the other party or parties conducted themselves in the way contemplated by the arrangement. …Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of the maintenance of a particular state of affairs or the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act. 172 Lindgren J made two important observations. First, at least one of the parties must "assume an obligation" or give an "assurance" or "undertaking" that it will act in a particular way and it is not enough that one of the parties has an expectation in fact that another will act in a particular way, even where that expectation has been engendered by the other party. The element which must be present is that one of the parties is understood by the other or others and intends to be understood as undertaking in the role of the reasonable and conscientious man to regard himself as being in some degree under a duty, moral or legal, to act in a particular way. Secondly, Lindgren J said it is an unresolved question whether there needs to be mutual obligations or an element of reciprocity in the undertaking of obligations. Commonly, there is as a matter of fact, but the question whether there needs to be as a matter of law is unresolved. 173 The respondents made two points. First, they submitted that the provision for projects to "Fighting Free" meant that the A/R Cartel Agreement lacked the required degree of commitment. I reject this submission. The point might have force if the question was one of contract and the issue was whether the parties had agreed or agreed to agree. However, as has been said many times, the concepts of arrangement or understanding are broader than that. This was a highly sophisticated arrangement carried out at a high level (as I will later explain) within these large groups of companies and it involved reasonably regular meetings. It was carried out over a relatively long period of time. The fact that they might agree that with respect to a particular project all parties could compete does not mean that there was not present the necessary level of commitment. Secondly, and this point overlaps to some extent with the first point, the respondents submitted that Mr Osada himself agreed in cross-examination that there was no commitment until agreement was reached with respect to a particular project. I have considered this evidence carefully. Mr Osada said that sometimes the parties agreed to put "our prices by ourselves". I think all Mr Osada was saying was that there is no particular allottee until the process envisaged by the A/R Cartel Agreement was undertaken and that is true. However, I do not think it means that the A/R Cartel Agreement did not involve the necessary level of commitment. The question is whether the parties considered they would undertake the process envisaged by the A/R Cartel Agreement in the circumstances identified in the agreement. There is abundant evidence that they did. I find that it was an arrangement or understanding within s 45(2) of the Trade Practices Act.

A Market in Australia 174 Prysmian admitted that there was a market in Australia for land cables and that it was a participant in the market. Nexans SA admitted that there was a market in Australia for land cables, but it does not admit that it was a participant in it. 175 As I understand it, Nexans SA relies on the fact that it does not manufacture or supply land cables or, indeed, any product. Leaving aside the identity of the particular Nexans company, this is a curious submission in light of the A/R Cartel Agreement which purported to apply to countries around the world, including Australia. Nexans SA submitted that I could not have regard to the control that might be exercised over subsidiaries because that had not been pleaded. However, I do not think that that is a matter which needs to be pleaded and I reject the submission. I find that the Nexans company which was a party to the A/R Cartel Agreement was a participant in the market in Australia for land cables.

An Exclusionary Provision 176 Section 4D(1)(b) requires the Court to consider the purpose of the provision of the arrangement or understanding. It is well-established that the purpose referred to is the subjective purpose of the parties and the inquiry focuses on the effect the parties sought to achieve. Invariably, the Court will consider the surrounding or objective circumstances to determine whether the parties had the subjective purpose which is alleged (News Limited and Others v South Sydney District Rugby League Football Club Limited and Others [2003] HCA 45; (2003) 215 CLR 563 ("News Limited v South Sydney District Rugby League Football Club Limited") at [18] per Gleeson CJ; at [43] per McHugh J; at [63] per Gummow J). By reason of s 4F, the prohibited purpose need not be the sole purpose and it is sufficient if it is a substantial purpose. 177 Section 4D(1)(b) requires that purpose of the provision be (relevantly in this case) to prevent, restrict or limit the supply to or acquisition from "particular persons or classes of persons". When the issue is whether there is a class of persons for the purposes of the provision, then although the class must be identified, it is not necessary that all members of the class be readily ascertainable at any one time (News Limited v South Sydney District Rugby League Football Club Limited at [74] per Gummow J) and it is preferable to speak of the purpose of the provision being "directed toward" a particular class rather than "aimed at" or "targeted" (Gummow J at [79]). 178 In Rural Press Limited and Others v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 ("Rural Press v ACCC"), the High Court considered the necessary particularity of the persons or classes of persons who were the object of the purpose defined in s 4D. Gleeson CJ and Callinan J described the particularity as essential to the concept of an exclusionary provision. Their Honours said (at [5] and [6]): In applying s 4D, courts have had to consider the statutory concept of a provision (of a contract, arrangement or understanding) which has the purpose of preventing, restricting or limiting supply to or acquisition from particular persons or classes of persons. This is a compound concept involving a certain kind of purpose, having as its object particular persons or classes of persons. The particularity of the persons or classes of persons who are the objects of the purpose as defined and proscribed is essential to the concept of an exclusionary provision. The significance of a finding that a provision is an exclusionary provision within s 4D and ss 45(2)(a)(i) and (b)(i) is that such a finding engages a per se legislative prohibition. It becomes unnecessary to consider whether it has the purpose or effect of substantially lessening competition in a market. If attention were not paid to the compound nature of an exclusionary provision, and the requirement of particularity of its object or objects, there is a danger that s 4D would be given an operation that would greatly reduce the statutory significance of lessening competition, in relation to agreements between competitors generally. Contracts, arrangements or understandings between competitors commonly involve some form of prevention, restriction or limitation of supply or acquisition of goods or services. … (Footnotes omitted). 179 Their Honours went on to say that although the particularity of objects was satisfied in the case before them, there would be other cases where it was not satisfied, otherwise the reference to particular persons or classes of persons would be redundant (at [7]). Their Honours said (at [8]): The Full Court referred to the changes that have taken place in the form of s 4D. In its original form, the proscribed purpose was of preventing, restricting or limiting supply to or acquisition from particular persons. The words "or classes of persons" were added in 1986, following some decisions that were thought to reveal an undue narrowness in the legislation in its original form. Those words were clearly intended to widen the provision, but not to change its entire character. The proscribed purpose must still be one that is directed toward particular persons or classes of persons. Parliament did not delete the word "particular" and substitute the word "any". Nor did it remove all reference to persons as objects of the proscribed purpose. The legislative history, as well as the text, tends strongly against a reading of the section which requires only that a provision of a contract, arrangement or understanding has the purpose of preventing, restricting or limiting, in any way, supply or acquisition. Supply or acquisition will always be to or from persons. Ordinary principles of construction require that the references to particular persons or classes of persons be given work to do; they are not mere drafting verbosity. A court construing a provision in an Act "must strive to give meaning to every word of the provision". A court will seek to avoid a construction of a statute that renders some of its language otiose. Here, that consideration is powerfully reinforced by the legislative history, which shows that the reference to particular persons was originally an essential feature of s 4D, and that the addition of the reference to classes was intended to expand it, not to make it superfluous. (Citation omitted). 180 In their joint reasons in Rural Press v ACCC, Gummow, Hayne and Heydon JJ made it clear that s 4D was not restricted to boycotts and that the object of an exclusionary provision did not need to be a competitor of the parties to the contract, arrangement or understanding (at [63]). Their Honours made the point that to be a class of persons within s 4D, it is not necessary to be readily able to identify all of its members of the class at any one time. Their Honours left open the question whether the class could be identified by its exclusion from supply or acquisition. Their Honours considered that for the purposes of s 4D, a class could be identified by reference to persons in a particular geographical area (at [87]-[88]). It seems that a class for the purposes of s 4D may be identified by inference in the sense that a class to which supply will be made is identified. Relevant to the particularity of the class, is the fact that its members are the objects of the purpose in question (ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 at 488; Australian Competition and Consumer Commission v Liquorland (Australia Pty Ltd) [2006] FCA 826; (2006) ATPR 42-123 at [813]. 181 The respondents submitted that the ACCC has failed to prove that a provision of the A/R Cartel Agreement had the purpose of preventing, restricting or limiting the supply of land cables and submarine cables, or of preventing, restricting or limiting the supply of land cables and submarine cables in particular circumstances or on particular conditions to persons including customers in the Australian land cable market and the Australian submarine cable market and, therefore, its case that the A/R Cartel Agreement contained an exclusionary provision failed. It submits that the ACCC's pleading is deficient in that: (1) the goods, the subject of the alleged restriction, are broad and uncertain; and (2) the particular persons or classes of persons in respect of which supply is prevented, restricted or limited by the provision are not sufficiently defined by referring to "persons including customers in the Australian land cable market and the Australian submarine cable market, alternatively, in the Australian cable market". 182 I do not think that the element of supply to particular persons or classes of persons is made out in the case of the A/R Cartel Agreement. I think the "class" identified is too broad. The A/R Cartel Agreement applied to customers for land cables throughout the world (other than the United States of America). It does not assist to say it includes Australia as that is just part of a broader "class". It cannot be said that there is an appropriate geographical limitation because the "class" includes customers throughout the world (other than the United States of America). 183 I do not think the A/R Cartel Agreement fell within the terms of s 45(2)(b)(i) of the Trade Practices Act.

A Price Fixing Provision 184 The respondents submitted that the A/R Cartel Agreement did not contain a provision that had the purpose, or effect or was likely to have the effect of fixing, controlling or maintaining prices for land cables and submarine cables or providing for the fixing, controlling or maintaining of prices for land cables and submarine cables. 185 I have already referred to the meaning of purpose. As to the meaning of effect or likely to have the effect, it is sufficient for me to set out what I said in Yazaki at [140]: The ACCC submits that the provisions of the arrangement or understanding also had the purpose or effect or likely effect of fixing, controlling or maintaining the prices of engine room main WHs supplied or to be supplied to TMCA. The words, "has ... the effect" requires the Court to consider the matter against the established facts, whilst the words "is likely to have the effect", although referring to the time the arrangement was made or the understanding arrived at, allows any reasonable inference to be drawn (Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 ("Trade Practices Commission v TNT Management") at 50 per Franki J). 186 In the context of their submission that there was no provision in the A/R Cartel Agreement which provided for the fixing, maintaining or controlling of prices, the respondents referred to Apco Service Stations at [52]-[55] where the evidence of what Apco and its managing director in fact did, did not support a conclusion that they were committed to increasing prices following telephone calls from other parties. The respondents also relied on Australian Competition and Consumer Commission v Air New Zealand Limited [2014] FCA 1157; (2014) 319 ALR 388 at [1106] where Perram J said that what he called an overarching understanding (if established) would not have been characterised by him as an arrangement or understanding to fix prices to which s 45A applied, but rather, as an arrangement or understanding to exchange pricing intentions. 187 I do not accept the respondents' submission. The parties to the A/R Cartel Agreement agreed that after the allottee had been chosen, that allottee would nominate what was, in effect, a floor price and that none of the other parties would put forward a price below that price. That is "providing for" the controlling of prices. In ACCC v CC, Lindgren J said (at [168] and [169]): The word "control" is not defined in the Act. Its natural or ordinary meaning is "to exercise restraint or direction over" (the Macquarie Dictionary) or "to exercise restraint or direction upon the free action of" (the Oxford English Dictionary) a person or thing. There are degrees of control and there may be control although the "restraint" or "direction" is not total. An arrangement or understanding has the effect of "controlling price" if it restrains a freedom that would otherwise exist as to a price to be charged. Concretes submits that the notion of "fixing, controlling or maintaining" price involves a degree of "specificity" as to price and a degree of "proximity" between the arrangement or understanding and price. I accept that an arrangement or understanding which no one intends, and is not objectively likely, to have any effect on price, but which, by reason of unforeseeable supervening circumstances has had that effect, is not caught. But, with respect, I do not find the general proposition relied on by Concretes determinative of the present case. Of course, I accept that "likelihood" is to be assessed as at the time when the arrangement is made or the understanding is arrived at. (See also Australian Competition and Consumer Commission v TF Woollam & Son Pty Ltd and Others [2011] FCA 973; (2011) 196 FCR 212; Yazaki at [141]-[144]). 188 His Honour went on to conclude that some specificity as to price was not a necessary element of controlling prices within s 45A. To so conclude would be to introduce an unauthorised general limitation on the notion and would allow the statutory prohibition to be easily circumvented. His Honour said that that would be a result that cannot have been intended and should not be lightly accepted (at [176]). His Honour said that the arrangement as to the unsuccessful tenderer's fee was likely to have the effect of controlling prices if, as a matter of fact, each tenderer was likely, if the successful one, to pay the fee out of the proceeds of the job and to take them into account in calculating its tender price. 189 In my opinion, the A/R Cartel Agreement fell within the terms of s 45(2)(b)(ii) of the Trade Practices Act.

The Snowy Hydro Project Agreement 190 Again, I will address the issues, subject to my consideration of whether the persons identified by Mr Osada were, in fact, representing Prysmian and Nexans SA respectively.

An Arrangement or Understanding 191 I have already referred to the authorities dealing with the meaning of an arrangement or understanding within s 45(2) of the Trade Practices Act at [170]-[172]. 192 The respondents' first submission was that there is simply insufficient evidence of the arrangement or understanding alleged by the ACCC to be the Snowy Hydro Project Agreement. They pointed to the fact that there was no direct evidence of the following: (1) the A Group agreeing to ask for an A preference; (2) the R Group requesting an R preference; (3) the A Group agreeing to an R preference; and (4) the R Group agreeing that Prysmian would be the allottee. 193 Prysmian also pointed to evidence of Mr Osada that other companies may have been involved in the R Group on occasions. The submission was that this made it even more difficult to infer any request from, or agreement between, the R Group members. 194 They submitted that there was no evidence before the Court of the R Group requesting an R preference and if that request was in writing to Mr Osada, then it is to be noted that Mr Osada did not produce the document. If the request by the R Group had been oral, Mr Osada did not give evidence about the circumstances surrounding the request and, if Mr Yamaguchi had been involved as the decision-maker at JPS, he had not been called by the ACCC. Mr Yamaguchi might also have given evidence about discussions within the A Group. 195 The respondents also submitted that I should conclude from Mr Osada's evidence that only participants asked to tender were involved in any arrangement or understanding for a specific project and this meant Nexans SA was excluded because it was not invited to tender for the Snowy Hydro Project. The respondents referred to evidence given by Mr Osada in response to a question he was asked about whether parts of his affidavit were to the effect that parties not invited to tender for a specific project took no part in the arrangement with respect to the particular project. The particular question was whether it was right to say that if a participant was not invited to tender, then the arrangements referred to in his affidavit did not apply. In response, Mr Osada said: So if the company is not invited to the tender, this company has nothing to do with the project. 196 The respondents submitted that one could add to this the fact that Nexans SA not having been invited to tender would have no interest in involving itself in the Snowy Hydro Project and there was no evidence at all of Mr Jay responding to Mr Osada's emails. It was submitted that, in those circumstances, it could not be inferred that Nexans SA did anything at all in relation to the Snowy Hydro Project. 197 As I have said, Mr Osada did give some evidence of a very general nature about the possible limited involvement of other companies in the A/R Cartel Agreement at times, but I do not think anything can be made of this evidence (see [113]). In any event, Mr Osada was quite clear as to the participants at the time of the Snowy Hydro Project. 198 As to Mr Osada's evidence about the role of a company not invited to tender, I think his evidence must be read in context. I think he was saying that if a company was not invited to tender, then it did not tender and it did not have to concern itself with a Price Guidance and the fixing of its prices. Of itself, the evidence does not establish that a company not invited did not concern itself at all with the particular project. 199 As to the submission that Nexans SA had no interest in the allocation of the Snowy Hydro Project because it had not been invited to tender, I do not accept that this is necessarily so. It is possible that a Group member would have an interest in the number of projects allocated to its Group even if it was not the proposed allottee. There was some evidence that the parties monitored the value of projects allocated to each Group. 200 The context of the invitations to tender for the Snowy Hydro Project, as far as Prysmian and Nexans SA are concerned, is as follows. The project related to an old BCCI/Pirelli cable and there had already been considerable correspondence between Snowy Hydro Limited and Prysmian before the invitations to tender were issued. Prysmian, or more accurately Pirelli Australia, had already provided a quotation and then Snowy Hydro Limited decided that there needed to be a public tender process. It can be inferred that Prysmian would have been interested in securing the project. Nexans SA, on the other hand, had not been invited to tender. Counsel for the ACCC submitted that Nexans SA could have lodged a tender for the project, but there is no evidence that that was at all likely and, so far as Mr Osada's evidence goes, it suggests that that would not have happened. On the evidence, Nexans SA could not commit to doing an act or refraining from doing an act. 201 I am prepared to infer from all the evidence that the A Group agreed to ask for an A preference for the Snowy Hydro Project. I infer that someone on the R Group side asked for an R preference to which the A Group agreed. I infer that the request on the R Group side was made by Prysmian. I infer that Nexans SA was aware of the Snowy Hydro Project as Mr Osada sent his email dated 12 September 2003 to Mr Jay, among others. However, in order to be held to be a party to the Snowy Hydro Project Agreement, there must have been a meeting of minds, including the "the mind" of Nexans SA and a commitment by Nexans SA (Apco Service Stations at [51]). 202 I am not satisfied on the evidence that there was a commitment by Nexans SA. I have considered whether the evidence about the operation of the A/R Cartel Agreement is such that I can infer that the consent of Nexans SA to the allocation of the Snowy Hydro Project was necessary and must have been given. As I have said, there is evidence suggesting a party which was never going to be the particular allottee nevertheless had such an interest in the allocation that its consent was necessary. The maintenance of Position Sheets, the statement in an email which appears to have been sent by Mr Jay to Mr Osada on 25 December 2001 about the position of the R Group being totally unacceptable and the suggestion by Viscas that the A Group pursue an alternative project to the Snowy Hydro Project are suggestive of this, but I do not think the evidence is sufficiently clear to enable me to conclude that Nexans SA must have committed, as distinct from simply knowing about the Snowy Hydro Project and doing nothing. The fact that Nexans SA has not called witnesses who might have addressed the issue cannot be used to overcome the lack of evidence. 203 I see no reason why my conclusion that Nexans SA was not a party to the Snowy Hydro Project Agreement means that I am precluded by the ACCC's pleading from concluding that Prysmian was a party.

A Market in Australia 204 The respondents submitted that the relevant market in Australia for the purposes of the Snowy Hydro Project Agreement was the Snowy Hydro Project and that it was a necessary element of an exclusionary provision and a price fixing provision that the alleged participants be competitive in the market. 205 It is correct to say that the relevant competition must be in the market to which the arrangement or understanding relates. That requirement follows from the provisions of s 45A(1) in the case of the price fixing and from the provisions of s 4D(2) in the case of an exclusionary provision (as to s 4D(2) see Eastern Express Pty Limited v General Newspapers Pty Limited and Others (1991) 30 FCR 385 at 419 per Wilcox J). 206 Nexans SA submitted that it was not in the market for the Snowy Hydro Project. First, it repeated the submission it made in relation to the A/R Cartel Agreement. It submitted that it did not manufacture or supply land cables or indeed any products and, therefore, was not a participant in any market, including the Snowy Hydro Project. I reject that submission for the reasons I have given in relation to the A/R Cartel Agreement. Secondly, it submitted that it was not in the market in terms of the Snowy Hydro Project because the cable sought by Snowy Hydro Limited was an oil-filled cable and the Nexans Group of companies did not manufacture oil-filled cables. It is correct that Snowy Hydro Limited sought the supply of an oil-filled cable. Nexans SA submitted that there was evidence that the Nexans Group of companies did not make or supply oil-filled cables. However, the only evidence that it was able to identify was a statement made by Mr Ian Butt in an email to various parties dated 24 June 2003 to the effect that he had explained to Mr Chenery of Snowy Hydro Limited that other than Pirelli, "there were probably only three other manufacturers who could do this work and that these were all Japanese". This is hardly a definite statement and the context in which the statement was made was never explained. The fact is the Nexans Group of companies was a very large group of companies which, as the Group itself said in its press releases, was a worldwide leader in the cable industry. Had the contract been lucrative enough (and it was not only for the supply of a cable) then I think Nexans SA would have been able to obtain an oil-filled cable, even accepting that the Nexans Group of companies did not manufacture oil-filled cables. Thirdly, Nexans SA submitted that the invitations to tender defined the boundaries of the relevant market and as it was not invited to tender, then it was not competing in the relevant market and could not be held liable for a contravention. This argument must be rejected because it is not necessary for the ACCC to show that all the participants in the arrangement or understanding were competing with each other. As far as the exclusionary provisions are concerned, it is sufficient if two or more of the parties to the arrangement or understanding are competitive with each other (s 4D(1)(a)). As far as the price fixing provisions are concerned, the position is perhaps not as clear. I am disposed to think that the use of words "or any of them" in s 45A(1) mean that it is sufficient for two or more parties to be in competition with each other in the relevant market as it is with the exclusionary provisions (Trade Practices Commission v David Jones (Australia) Pty Ltd and Others (1986) 13 FCR 446 at 473 per Fisher J; but see Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458; (2008) 251 ALR 166 at [22] per Tracey J). 207 Prysmian submitted that the ACCC has not proved that two or more parties to the alleged Snowy Hydro Project Agreement were competitive with each other in terms of the Snowy Hydro Project. Of the five parties to the alleged agreement, only two were invited to tender. At one point, Prysmian submitted that none of the parties to the alleged agreement were invited to tender because the invitation to tender was issued to Pirelli Australia and not to it and there was no evidence that JPS received the invitation to tender. I reject this submission. Mr Chenery instructed Ms Donnelly to send the invitation to Pirelli and I do not think Snowy Hydro Limited had any particular Pirelli company in mind. It is likely it viewed the matter in terms of the Pirelli Group of companies. I infer that JPS received the invitation to tender. There is no reason to think otherwise. The tender submission by Mitsui Australia is entirely consistent with Mr Osada's evidence and the receipt by JPS of an invitation to tender. The major point made by Prysmian was that JPS did not lodge a tender and, therefore, it was not competitive with it. In those circumstances, there were not two or more parties to the alleged Snowy Hydro Project Agreement who were competitive with each other. I reject that submission. As at the date of the Snowy Hydro Project Agreement, JPS had been invited to tender and that is sufficient. Even if that is wrong and it is necessary to consider JPS's intention as at 24 September 2003, I do not think that it can be inferred from subsequent events that as at 24 September 2003, JPS did not intend to lodge a quotation in its own right. Even if those conclusions are wrong and the important consideration is JPS's intention as at 24 September 2003 and that, as at that date, JPS intended to be the manufacturer under a tender to be lodged by Mitsui & Co (Australia) Limited, I think that that is sufficient for the purposes of the section. 208 Prysmian sought to gain assistance from the decision in Flight Centre Ltd v Australian Competition and Consumer Commission (2015) 234 FCR 367 ("Flight Centre") where the Full Court of this Court held that there was no separate market of booking and ticketing services. When Flight Centre sought to supply the services, it did so as agent for the airlines, not in competition with them. Prysmian submitted that to find that Prysmian and JPS were competitive with each other would be to commit the error identified by the Full Court in Flight Centre in the following passage (at 403 [176]): The primary judge erred because he transferred or transplanted the rivalry or competition that he found existed, in a broad sense, in the market for the supply of international passenger air travel services, into a non-existent market: a market for distribution and booking services. That supposed market was in fact an artificial construct that did not truly reflect the commercial reality of the relevant commercial relationship and dealings. 209 I reject this argument. It seems to me that it would be artificial to suggest that JPS and Prysmian were not competitive with each other in relation to the Snowy Hydro Project. They were both invited to tender and acceptance would have involved the supply of goods. Neither Mitsui & Co (Australia) or Mitsui & Co Japan were invited by Snowy Hydro Limited to tender for the Snowy Hydro Project. "Supply" is defined in s 4 of the Trade Practices Act in a non-exhaustive way (see also s 4C). If it is necessary, I would add that "supply" can include the provision of goods as a manufacturer.

An Exclusionary Provision 210 The Snowy Hydro Project Agreement contained an exclusionary provision within s 4D and s 45(2)(a)(i) of the Trade Practices Act. The agreement restricts or limits the supply of goods to Snowy Hydro Limited. It is effectively a market sharing arrangement (News Limited v South Sydney District Rugby League Football Club Limited at [118] per Kirby J; Rural Press v ACCC at [82] per Gummow, Hayne and Heydon JJ).

A Price Fixing Provision 211 The Snowy Hydro Project Agreement in effect provided for the fixing of a floor price and that was controlling prices within s 45(2)(a)(ii) and s 45A(1) of the Trade Practices Act.

Conclusions to this Point 212 The A/R Cartel Agreement contained a price fixing provision, and the Snowy Hydro Project Agreement contained an exclusionary provision and a price fixing provision. The issuing of the Price Guidance (at [88]) and the issuing of the price direction (at [120]) and the lodging of a tender by Pirelli Australia (at [119]) gave effect to the A/R Cartel Agreement insofar as it contained a price fixing provision and the Snowy Hydro Agreement. 213 The following issues remain to be considered. Prysmian contends that even if all other elements of the ACCC's case have been established in relation to the A/R Cartel Agreement and the Snowy Hydro Project Agreement, the ACCC has not established that it, as distinct from another company in the Prysmian Group of companies was the party to those agreements. This issue raises questions of agency and the application of s 84(2) of the Trade Practices Act. 214 Similar issues arise in the case of Nexans SA, although in its case, it is not strictly necessary for me to consider the issue, having regard to the conclusion I have reached that it was not a party to the Snowy Hydro Project because it did not make an arrangement or arrive at an understanding in relation to the Snowy Hydro Project. I will consider the issue in case there is an appeal. There is a further issue involving Nexans SA which, although it is not strictly necessary for me to consider, I will also consider in case there is an appeal. Such conduct as Nexans SA engaged in was engaged in outside Australia. It is only caught by the Trade Practices Act and the Competition Codes if Nexans SA was carrying on business in Australia or in a relevant jurisdiction or, in the case of the Competition Codes, was "otherwise connected" with the relevant jurisdiction.

General Principles 215 The essential issue in this section is whether the ACCC has proved that the persons it nominated were representatives of Prysmian and Nexans SA as the case may be. I do not think that there is any doubt that they represented a company in the Prysmian Group of companies and the Nexans Group of companies as the case may be, but the question is whether it was Prysmian (at the time, Pirelli Cavi e Sistemi Energia S.p.A.) and Nexans SA. The ACCC advanced an attribution case by reference to general agency principles, s 84(2) of the Trade Practices Act and the principles identified by the Privy Council in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 ("Meridian Global"). 216 In South Sydney District Rugby League Football Club Ltd v News Ltd and Others [2000] FCA 154; (2000) 177 ALR 611 Finn J, with respect, provided a very useful summary of the general principles of agency. Not all of the principles his Honour identified are relevant in the circumstances of this case and I confine myself to those which are relevant (at [132], [136] and [137]): 132 1. Those definitions of agency that take the principal and agent relationship itself as their particular focus: contrast International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 at 652; emphasise that that relationship "can only be established by the consent of the principal and the agent": Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130 at 1137; see eg Bowstead & Reynolds on Agency, (16th Ed, 1996), s1-001; Restatement, Third, Agency, Tentative Draft No 1, s1.01; 3 Am Jur 2d, "Agency", s17. … 136 5. Though there is no uniformly agreed definition of agency: see the discussion in Fisher, Agency Law, (2000), 8-11; the two whose authoritative character has resulted in their wide citation are those of the Restatement, Second, Agency, s1 and of Bowstead and Reynolds, above, 1-001 (the latter being based upon the Restatement provision). The Restatement's definition is that: " s1 Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." I would note in passing that the definition proposed in the Restatement, Third, Agency, Tentative Draft No 1, s1.01 proposes no material departure from the above. Bowstead and Reynolds' definition is that: "Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly consents so to act or so acts." The necessary consents apart, the required characteristics of the relation are that (a) one party acts on the other's behalf but (b) subject to that other's control or direction. 137 6. The second of the above characteristics (control or direction) does not appear to figure prominently as a decisive indicator of agency in common law case law save in two settings. The first is where it is contended that a company is an agent of its parent company, shareholders, or of particular officers because of the control it or they exercise over it. Here, and to accommodate the perceived demands of the principle established in Salomon v Salomon & Co [1897] AC 22 that a company is a legal person separate from its parent, officers and shareholders, the control characteristic has had to undergo a degree of refinement which it is not relevant to explore in this proceeding; but see Gramophone and Typewriter Ltd v Stanley [1908] 2 KB 89; Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549; see also Restatement, Third, Agency, Tentative Draft No 1, at 50-52. The second setting in which resort has been had to the control characteristic is where a party that is expressed to stand in the relation of independent contractor to another is claimed as well to be the agent of that other. The two relationships are not mutually exclusive: see CFTO-TV Ltd v Mr Submarine Ltd (1994) 108 DLR (4th) 517; affd (1997) 151 DLR (4th) 382; Lower Hutt City v Attorney-General [1965] 2 NZLR 65 at 71; Restatement, Second, Agency, s14N. Though "[c]ontrol by itself is insufficient to establish agency": Restatement, Third, Agency, Tentative Draft No 1, at 49 - the "acting on behalf of" or "representative" characteristic must be able to be discerned in the factual relation of the parties: Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48-51 - where that characteristic can properly be inferred in circumstances in which the alleged principal exercises, or is entitled to exercise, a significant degree of control over the contractor's performance of its services (and in particular over contracts entered into), the contractor is apt in consequence to be characterised as an agent: see eg CFTO-TV Ltd v Mr Submarine Ltd, above; Northern v McGraw-Edison Co 542 F 2d 1336 (1976); Condus v Howard Savings Bank 986 F Supp 914 (1997); 2A Corpus Juris Secundum, "Agency", s12; see also Bowstead and Reynolds, above, 1-028. It probably is the case that the control exercisable by one party can in some settings itself bear on the determination whether the other acts on its own account or on behalf of the former when dealing with third parties: cf the view expressed in Royal Securities Corp Ltd v Montreal Trust Co (1966) 59 DLR (2d) 666 at 684. 217 At the relevant times, s 84(2) of the Trade Practices Act was in the following terms: 84 Conduct by directors, servants or agents ... (2) Any conduct engaged in on behalf of a body corporate: (a) by a director, servant or agent of the body corporate within the scope of the person's actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent; shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate. 218 Prior to 1986, s 84(2) had referred to conduct engaged in on behalf of a body corporate, but it did not contain a reference to the scope of the person's actual or apparent authority. Even in its pre-1986 form, the subsection was described as a provision of wide application (Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 36-37 per Lockhart J). In its form as relevant in this case, Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861; (2001) 119 FCR 1 ("Australian Safeway Stores") described it as supplementing the common law position, not replacing it. I respectfully agree with Merkel J in Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2004] FCA 1678; (2004) 141 FCR 183 ("Leahy Petroleum") at [104] that although the Full Court overturned the decision of Goldberg J (Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [2003] FCAFC 149; (2003) 129 FCR 339), it did not express any disapproval of his Honour's discussion of the law of agency. 219 With respect to Nexans SA, the ACCC relied on both s 84(2)(a) and s 84(2)(b). Nexans SA submitted that the ACCC could not rely on s 84(2)(b) because it had not pleaded the paragraph or the factual elements which engage it. I will address this issue later in these reasons. 220 The Full Court of this Court considered the operation of s 84(2)(b) in Consolo Limited and Others v Bennett [2012] FCAFC 120; (2012) 207 FCR 127. That case involved a claim for damages for misleading and deceptive conduct in contravention of Part V of the Trade Practices Act and a question arose as to whether the holding companies of various subsidiaries could be held liable for the conduct of those subsidiaries under s 84(2)(b) of the Trade Practices Act. The Full Court noted that the applicant had not pleaded the specific requirements of s 84(2)(b). The Full Court said that it was not sufficient to point to the general economic interests of the holding companies in the success of the particular project. The Full Court said that there was no warrant in s 84(2)(b) to disregard the fundamental principle that companies are entities with rights and liabilities separate from their shareholders, and holding companies are separate from their subsidiaries. The Full Court noted that consolidated accounts may be prepared, but that does not mean that the assets and liabilities of each company are deemed to be the assets and liabilities of the holding company or other companies in the group. The Full Court noted that s 84(2)(b) might operate to attribute the conduct of a subsidiary to a holding company, but that that would not be done by showing no more than "a general economic interest in the success of the subsidiary" (at [84]). The Full Court rejected a submission that the corporate structure could be ignored. In rejecting the applicant's case of attribution under s 84(2)(b), the Full Court said (at [91] and [92]): A commonality of business interests between a holding company and its subsidiary does not, of itself, make the subsidiary, or the subsidiary's director, the agent of the holding company. It has long been well-recognised that, subject to statutory qualifications, shareholders are not personally responsible for the conduct of a limited liability company: Salomon v A Salomon & Company Ltd [1897] AC 22; British Thomson-Houston Co Ltd v Sterling Accessories Ltd [1924] 2 Ch 33 at 38. Section 84(2) of the TPA does not dissolve the corporate veil so as to reveal the Consolo appellants as the principals of the Burkes. Nor may this Court accept the argument advanced on behalf of Dr Bennett that the general commonality of business interests on the part of the Consolo appellants and Mr Pearson meant that the corporate structure by which the Development was created and marketed can be set at nought. Accordingly, we would uphold this aspect of the challenge by the Consolo appellants. 221 The ACCC submitted that the principles in Meridian Global were a third and independent basis upon which I could conclude that the representatives it identified were acting for Prysmian and Nexans SA as the case may be. 222 In Meridian Global the issue was whether the knowledge of a company executive of a purchase of shares by the company should be attributed to the company. The Court of Appeal decided that it should on the basis that for the relevant purposes, the senior executive was the directing mind and will of the company. Lord Hoffmann, speaking on behalf of the Privy Council, reviewed the authorities and said that not every attribution rule has to be forced into the same formula of the directing mind and will of the company. His Lordship described the question as one of the construction of the relevant statutory provision rather than metaphysics. In that case, the company was fixed with the knowledge of the employee who had the authority to enter into the transaction which gave rise to the obligation on the part of the company to give notice to the target company and the relevant stock exchange. His Lordship said that otherwise the legislative purpose would be defeated. His Lordship added the rider that it did not follow that the company was to be attributed with the consequences of the manner in which an employee performed an act simply because the employee had authority to do the act. His Lordship said (at 512 letter A): Each is an example of an attribution rule for a particular purpose, tailored as it always must be to the terms and policies of the substantive rule. 223 In Bilta (UK) Ltd (in liquation) and others v Nazir and others [2015] UKSC 23; [2015] 2 All ER 1083 Lords Toulson and Hodge discussed Meridian Global and referred to Lord Hoffmann's third category (i.e., an attribution rule for a particular purpose) as exceptional and also made the point that whatever basis of attribution was being considered, consideration must be given to the nature and subject matter of the relevant rule and duty (at [191]). 224 The High Court has not considered the third category identified in Meridian Global. In Krakowski v Eurolynx Properties Limited and Another (1995) 183 CLR 563, the High Court made the point referring to, among other cases, Tesco Supermarkets Ltd v Nattrass [1972] AC 153 ("Tesco") that a division of functions among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation of responsibility by reference to the knowledge possessed by each of them (at 583). In other words, there may be more than one directing mind and will of a company and who it is will depend on the circumstances in which the particular question of attribution arises (Australian Securities and Investments Commission v Mariner Corporation Ltd and Others [2015] FCA 589; (2015) 106 ACSR 343 at [338] per Beach J). 225 As I have said, Goldberg J considered the decision in Meridian Global in Australian Safeway Stores. His Honour did not decline to follow the case, rather he found that it did not advance the attribution case in the proceeding before him. The company employee, unlike the employee in Meridian Global, did not have the authority of the company to undertake the transaction out of which the contravention or offence arose. 226 I do not understand Merkel J in Leahy Petroleum to disagree with anything said on this topic by Goldberg J in Australian Safeway Stores. Justice Merkel made the point that it is not necessary to prove that the agent had authority to enter into the particular illegal transaction if such a transaction is in issue and it would be sufficient if "in general, transactions of the sort in question were within the scope of the agent's employment" (at 213). His Honour referred to the "directing the mind and will" approach of Tesco and the "authorised employee" approach of Meridian Global (at 214-215) and he said that in the context of the Act the different approaches in Tesco and Meridian Global may be of little significance "as s 84(2) provides the statutory answer to the issue of attribution" (at 215). 227 I note the Victorian authority to which I was referred which has followed the approach identified in Meridian Global and decided questions of attribution on the basis of the intended application of the substantive law in question (Christian Youth Camps Ltd and Another v Cobaw Community Health Services Ltd [2014] VSCA 75; (2014) 308 ALR 615; Erlich v Leifer [2015] VSC 499). 228 Prysmian submitted that the ACCC could not rely on the principles in Meridian Global because they had not been pleaded. There might be a question as to whether there is a need to plead "the principles", but I do not need to address Prysmian's submission in view of the conclusion set out below. Nexans SA said that it "embraced" the decision in Meridian Global and the ACCC seemed less enthusiastic about the decision in its oral submissions in reply, noting that it was a case about attribution of knowledge and not (as here) the attribution of acts. 229 I do not find Meridian Global to be of any real assistance in this case. As I have said, I find that a Prysmian company and a Nexans company were parties to the A/R Cartel Agreement. I find that, based on the nature of the A/R Cartel Agreement, being an international agreement involving regular meetings in different countries, the Prysmian company would have been a prominent company in the hierarchy of the Prysmian Group of companies. The same may be said of the Nexans company. Reference to the statutory purpose is not going to assist in determining which company. For example, the ACCC did not identify anything in the purpose of the Trade Practices Act or Competition Codes which would point to the attribution of the conduct of Mr Romand and Mr Jay to Nexans SA, rather than to one of its two subsidiaries and their employer, Nexans France.

Prysmian 230 There are four points in the ACCC's case where it alleges that Prysmian acted through a representative or representatives. They are as follows. First, in relation to the A/R Cartel Agreement, Prysmian's representatives were alleged to be Gianfranco Acquaotta, Federico Corbellini, Alan Jones and Robert Comber. Secondly, in relation to the Price Guidance, Prysmian's representatives were alleged to be Mr Corbellini and Mr Comber. Thirdly, in relation to the price direction, Prysmian's representative was alleged to be Mr Ian Knowles. Finally, in relation to the tender submitted to Snowy Hydro Limited, Prysmian's agent was alleged to be Pirelli Australia. 231 Prysmian's answers to interrogatories establish that each of the following was employed by Prysmian: Mr Acquaotta (from 1 March 2002 to October 2003), Mr Corbellini (from 1 December 2001 to October 2003), and Mr Comber (from 1 December 2001 to October 2003). Mr Knowles was employed by Pirelli General plc from 1 January 2002 to October 2003, and Mr Ian Butt was employed by Pirelli General plc and seconded to Pirelli Cables System PTE Ltd. As I understand it, Pirelli General plc and Pirelli Cables Systems PTE Ltd are companies in the United Kingdom and that is the place where the cable for the Snowy Hydro Project would have been manufactured had the contract been secured. Mr Acquaotta was employed as a sales/marketing manager responsible to Mr Alberto Tessari and his duties included responsibility for marketing and sales within the Energy Submarine Systems business at the worldwide level; defining guidelines for sales, including pricing policies, conditions of sales and warranties; and responsibility for sales managers working in different geographical areas. Mr Corbellini was employed as manager HV installation, responsible to Mr Hans Neiman and his duties included responsibility for the installation of high voltage systems in the subsidiaries of the group, including Pirelli Construction Company Ltd. Mr Comber was employed in the sales support tender office responsible to Mr Tiziano Furlan and his duties included responsibility for the development of new markets in relation to high voltage cables and accessories within the HV transmission system business. Mr Knowles was contracts manager responsible to Mr Tiziano Furlan (after 1 January 2002) and his duties were within the Energy Cable business with responsibility for sales activities of the Submarine Energy System and High Voltage in the Far East and Middle East. Mr Butt was HV Systems Area Manager (Asia-Pacific area) responsible to Mr Hans Neiman and his duties included responsibility for sales activities for HV systems in the Asia-Pacific area. 232 As I have said, Prysmian was incorporated pursuant to the laws of Italy and, although not the holding company of the whole group, it was the holding company of the energy sector which covered energy cables (land and submarine) and systems. Prysmian asked me to infer from the descriptions of the positions of the employees that none of the employees were involved in land cables. For example, it was suggested that Mr Acquaotta's position within the Energy Submarine Systems business indicated that he had nothing to do with land cables. There are two answers to that submission. First, the A/R Cartel Agreement included within its scope both land and submarine cables, and if there was a land cables division and a submarine cables division within Prysmian, then plainly any representative would have to come from one or the other. Secondly, the descriptions themselves are at such a level of generality that I do not think it would be safe to infer from them alone that the employees had nothing to do with land cables. The fact is that Mr Osada's evidence and the documents prove the contrary. I am prepared to infer from the descriptions that at least Mr Acquaotta ("responsible … at the worldwide level") and Mr Corbellini ("responsible … in the subsidiaries of the group") held senior executive positions within Prysmian. 233 I am satisfied that Mr Acquaotta, Mr Corbellini and Mr Comber had the authority of Prysmian to commit Prysmian to the A/R Cartel Agreement and to the Snowy Hydro Project Agreement and to give effect to either or both agreements by issuing the Price Guidance. Mr Acquaotta and Mr Corbellini were senior executives of Prysmian and employees of the company. Prysmian was the company which was at the apex of the energy sector, or as referred to in the Prysmian Annual Report for 2003, the energy sector holding company and it employed Mr Acquaotta, Mr Corbellini and Mr Comber. I find that they had authority, actual or apparent, to commit Prysmian to the conduct contemplated by the A/R Cartel Agreement and the Snowy Hydro Project Agreement. I put the matter in this way because it is not necessary to find that they had authority to bind the company to anti-competitive conduct. The critical point is that they had authority to commit to the course of conduct involving the lodging of tenders and bids and as to the prices at which those tenders were lodged or bids made. 234 The ACCC alleges that Prysmian gave effect to the A/R Cartel Agreement and the Snowy Hydro Project Agreement by issuing the price direction and by lodging a tender by its agent, Pirelli Australia. These matters are pleaded as one act of "giving effect to". This means that if either is not present, then the alleged contravention is not made out. I turn to consider whether Prysmian lodged the tender by its agent, Pirelli Australia. I interpret this plea of Prysmian acting through Pirelli Australia as agent as meaning that Pirelli Australia was not acting in its own right, and that had the tender been successful, the contract would have been between Prysmian and Snowy Hydro Limited. The evidence establishes that there was a close relationship between Prysmian and Pirelli Australia. For example, in November 2001, Mr Comber of Prysmian wrote to Mr Mills of Pirelli Australia saying that Prysmian was doing its best to support Pirelli Australia and that its approach was to focus on margins, not volumes, "in order to improve PBIT etc." A further example is the fact that on 19 June 2003, Mr Butt provided a report to Mr Corbellini about his visit to Australia to investigate "a potential new 15km 330kV cable route for Sydney". These matters may be acknowledged, but the fact is that the tender was lodged in the name of Pirelli Australia and, although Prysmian was referred to in the tender as the holding company of Pirelli Australia, there was no other indication in the tender that it was lodged by Pirelli Australia on behalf of Prysmian such that if successful, the contract would have been between Prysmian and Snowy Hydro Limited. In those circumstances, the alleged giving effect to by Prysmian by issuing the price direction and lodging the tender is not made out.

Nexans SA 235 The answers to interrogatories which were tendered in evidence by the ACCC state that during the relevant period of October 2001 to October 2003, Mr Romand was employed by Nexans France SA (société anonyme), the legal form of which was changed on 12 March 2014 to a SAS (société par actions simplifiée) and he held the position of the Deputy Managing Director HV & Accessories. He performed functions relating to the HV & Accessories Product Line and he reported to Mr Patrick Barth. Mr Barth was HV & Accessories Product Line Manager until 30 June 2003, and between 1 July 2003 and October 2003, he was Country Business Manager Infrastructure. 236 The evidence in relation to Mr Barth is as follows. In March 2002, Mr Yvon Raak was one of the seven employees of Nexans SA. He was a member of the Executive Committee and he was in charge of the "Energy" section of the Nexans Group. One of the four subgroups or subsections of the Energy section was HV & Accessories and Mr Barth was in charge of this subgroup or subsection. Mr Barth was a recipient of the GESO monthly reports. 237 There was an organisation called the International Cablemakers Federation which organised a congress from time to time. It seems that many of the major manufacturers and suppliers sent representatives to these congresses. At the congress held in Vancouver in 2003, Nexans SA was represented by Mr Hauser, Mr Marc Choussat, Mr Michel Lemaire (an employee of Nexans SA), Mr Pascal Portevin (an employee of Nexans SA) and Mr Alain Romand. Mr Romand was described in a Participants' record for the congress as Vice President, High Voltage, Nexans, Nanterre, France. Nexans SA had six representatives at the congress held in Prague in October 2004 being Mr Hauser, Mr Choussat, Mr Portevin, Mr Raak, Mr Romand and a Mr Roland Natalini. 238 Mr Jay was also employed by Nexans France during the relevant period (October 2001 to October 2003) and he held the position of Country Product Line Manager France in the High Voltage Product Line. In its answers to interrogatories, Nexans SA said that it did not know the functions performed by Mr Jay during the relevant period. Mr Jay reported to Mr Romand and then Mr Barth. 239 There has never been any delegation of authority or powers or functions to Mr Romand or Mr Jay by the Board or Chief Executive Officer of Nexans SA. 240 I do not think that there can be any doubt that Mr Romand, a senior executive, and Mr Jay were acting on behalf of a Nexans company and that that company was a major company in the Nexans Group of companies. The alternatives seem to be their employer, Nexans France, or Nexans SA. The question is whether they were acting for Nexans France or Nexans SA. Nexans SA is the ultimate holding company and Nexans France is a major operating subsidiary (one of two) of Nexans SA. I am not satisfied that agency according to the ordinary principles between Nexans SA (as principal) and Mr Romand and Mr Jay (as agents) is established. 241 The ACCC's alternative argument is based on s 84(2)(b) of the Trade Practices Act. As I understand it, the argument is that servants or agents of Nexans SA, being the Executive Committee, acting through the GESO (and the organisation which replaced it in about June 2003) gave directions or consented or agreed to the activities of Mr Romand and Mr Jay, and that in so doing, they were acting with the actual or apparent authority of Nexans SA. 242 There is a good deal of force in the submission of Nexans SA that this basis of attribution is not pleaded. However, I will deal with the argument on the merits. I have already set out my findings in relation to the GESO (at [165]). It seems to me that the argument fails because the evidence does not establish that the Executive Committee was involved in the sales of cables, including negotiations, fixing of prices etc. In other words, the evidence does not enable me to infer that the conduct of Mr Romand and Mr Jay was carried out at the direction of the Executive Committee of Nexans SA as distinct from the board of directors or management of Nexans France.

General Principles 243 Section 5 of the Trade Practices Act provides that Part IV of the Act (among other Parts of the Act) extends to the engaging in conduct outside Australia by bodies corporate incorporated in Australia or carrying on business within Australia. There is a similar provision in the Competition Policy Reform Acts which further provides that the Competition Codes extend to conduct outside the jurisdiction in relation to persons "otherwise connected" with the jurisdiction (see, for example, Competition Policy Reform (New South Wales) Act 1995 s 8). A reference to a person includes a reference to a body corporate (Interpretation Act 1987 (NSW) s 21). 244 In Luckins v Highway Motel (Carnarvon) Pty Ltd (1975) 133 CLR 164, a case which concerned the validity of a company charge, Gibbs J (as his Honour then was) said that the expression "carrying on business" may have different meanings in difference contexts. His Honour said (at 178): It would usually connote, at least, the doing of a succession of acts designed to advance some enterprise of the company pursued with a view to pecuniary gain. 245 It is to be noted that the word "business" was defined at the time in s 4 of the Trade Practices Act as including a business not carried on for profit. 246 In the well-known decision of the High Court in Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 8-9, Mason J (as his Honour then was) said that carrying on a business suggested 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. 247 In Bray v F Hoffman-La Roche Ltd and Others [2002] FCA 243; (2002) 118 FCR 1 ("Bray v F Hoffman-La Roche Ltd and Others") (which was upheld by the Full Court in Bray v F Hoffman-La Roche Ltd and Others [2003] FCAFC 153; (2003) 130 FCR 317), the applicant alleged that certain foreign corporations (among others) had contravened s 45 of the Trade Practices Act and a jurisdictional issue arose in the case as to whether the foreign corporations were carrying on business within Australia within s 5. 248 Justice Merkel said that the question of whether a corporation is carrying on business within Australia is very much a question of fact. His Honour said it was not a requirement of the concept of carrying on business that the foreign company have a place of business in the jurisdiction. Where the foreign company has a subsidiary within the jurisdiction (and assuming no other non-subsidiary activities by the foreign company) the question will be whether the local subsidiary was carrying on business on its own account, "or on behalf of, the European or the regional parent" (at [64]). His Honour discussed the authorities which have considered whether a subsidiary is carrying on its own business or a business on behalf of its parent (Smith, Stone & Knight Ltd v Lord Mayor, Alderman and Citizens of City of Birmingham [1939] 4 All ER 116 at 121; Adams v Cape Industries plc [1990] Ch 433 at 525 and 529-531). Justice Merkel said that it was not enough to establish agency, that there is a global enterprise involving a large number of companies supplying products in many jurisdictions and that the subsidiary is an integrated part of the global enterprise and is subject to the direction and control of its parent (at [72]). His Honour said (at [80]): In my view something more than the indirect legal and commercial capacity of the parent companies to control and direct the subsidiaries, plus the parent's involvement in implementing the cartel arrangement, is required to lift the corporate veil between the subsidiaries and their parents or to find that each of the subsidiaries is carrying on its business as agent for the parent. That is particularly so where it is contended (as it is in the present case) that the parent, rather than the subsidiary, is carrying on business in Australia or, put another way, the subsidiary is engaging in all of its commercial activities on behalf of, and therefore as agent for, the parent. 249 In the following passage, his Honour identified the matters which led him to conclude that the Australian subsidiaries were not carrying on business as agents for their European or regional parents (at [77]): In the present matter the Australian subsidiaries, in conducting their business activities in Australia, held their assets (including bank accounts) in their own names and employed employees and purchased and sold products in their own names. Their businesses were not confined to the class vitamins or to products supplied by other companies in the respective groups. The accounts of each of the subsidiaries were included in the Consolidated group accounts but that is commonplace with subsidiaries and accords with established accounting and regulatory requirements: see for example Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 at 577. There may be some overlapping board appointments in respect of the subsidiaries and the regional or parent companies in the three groups but, for the most part, the subsidiaries had different boards to the European or regional parent. The evidence does not suggest that the Australian subsidiaries were not maintained as distinct or separate entities or that the parents have disregarded corporate boundaries. 250 I considered the issue of whether a foreign corporation was carrying on business in Australia in Yazaki. In that case, I concluded that the subsidiary was not carrying on all of its business as agent for its overseas parent and that it would not be appropriate to pierce the corporate veil as to all of the subsidiary's business. I reached that conclusion even though the Australian subsidiary was really only able to survive because of the support of the overseas parent. However, I concluded that the overseas parent and the subsidiary were jointly carrying on business within Australia in terms of one particular customer.

Prysmian 251 The ACCC accepts that the making of the Snowy Hydro Project Agreement and the issuing of the Price Guidance was conduct engaged in outside Australia. However, the Trade Practices Act and the Competition Codes apply to Prysmian's conduct in relation to those matters because it admits that between 10 July 2003 and 20 June 2006, it was a foreign corporation registered in Australia, and under the law of Victoria with the registration ARBN 105 479 589 and that, during the same period, it carried on business in Australia, and in a State or Territory of Australia. That registration as a foreign corporation was said to be associated with the "Basslink project", a project involving the laying of a submarine cable between the Australian mainland and Tasmania.

Nexans SA 252 In the case of Nexans SA, the conduct by the company which is said to have contravened the Trade Practices Act and Competition Codes occurred outside Australia. The particular conduct of Nexans SA was alleged to be the Snowy Hydro Project Agreement reached on 24 September 2003, and then the alleged agreement with Prysmian to the effect that Prysmian would be the allottee between that date and 3 October 2003 occurred outside Australia. Nexans SA disputes that it carried on business within Australia or a State or Territory of Australia or is otherwise connected with the jurisdiction of a State or Territory of Australia. 253 Before the trial, the ACCC provided particulars of the respects in which it alleges that Nexans SA carried on business in Australia or a State or Territory of Australia or was otherwise connected with the jurisdiction of a State or Territory. Those particulars are set out in the ACCC's Statement of Claim. Nexans SA submitted that the ACCC was not permitted to go beyond the particulars. For example, Nexans SA submitted that Mr Osada's evidence about other Australian projects (see [91-103] above) could not be relied upon to establish that Nexans SA was carrying on business within Australia because it is not referred to in the particulars. I reserved my decision on whether the evidence, which was otherwise admitted, could be used for this purpose and I will address this issue later in these reasons. 254 I will proceed by first addressing each of the particulars in the Statement of Claim and make findings as to whether the factual allegation is made out. I will then consider whether the facts as found constitute carrying on business within Australia or being otherwise connected with the jurisdiction of a State or Territory of Australia. 255 The first general particular in the Statement of Claim is that Nexans SA carried on business within Australia directly. In support of this general particular, there are a series of specific particulars. 256 The first two specific particulars involve an allegation that Nexans SA provided services to its subsidiaries, including Nexans Australia. The relevant part of this allegation is the provision of services by Nexans SA to Nexans Australia. The services were those provided under the General Relations Agreement between Nexans SA subsidiaries within the Nexans Group. These services are described above (at [139]). Further details are set out in the Nexans Group Annual Report for 2001. In that report, it is said that Nexans SA is the Group's holding company and it also fulfils financing and centralised cash management functions in support of the Group's operations. The General Relations Agreement is said to cover the sharing of research and development expenses and under the agreement, Nexans, on behalf of the Group, collects royalty payments from Group companies and redistributes these payments among Group subsidiaries through the implementation of research and development programs of collective importance for the Group. Later in the report, there is a reference to the General Relations Agreement governing the sharing of research programs, and the administrative services rendered by Nexans SA to its subsidiaries. Nexans SA contributes to the cost of the research and development programs and receives a percentage of the company's sales. It renders administrative services and, again for this service, receives a percentage of the company's sales. 257 The third specific particular is, in fact, I think no more than an example of the first two. It is the fact that as at 31 October 2001, Nexans Australia owed Nexans Corporate an R and D (research and development) fee and a contract service charge. 258 The fourth specific particular is that in 2002 and 2003, the "Nexans Worldwide Group" paid premiums in respect of directors and officers insurance policies, which covered all directors and officers of the Group's companies worldwide, including Australia. There is such a policy and the policyholder is Nexans SA and the insurer is Chubb Insurance Company of Europe. 259 The fifth, sixth and seventh particulars relate to Nexans SA ownership of two trade marks under the Trade Marks Act 1995 (Cth) and the litigation in this Court in relation to those trade marks. The details of this are as follows. 260 Nexans SA was involved in a trade mark dispute with a company called Nex 1 Technologies Co Limited. Nexans is the registered owner of two marks in Australia, being the word NEXANS and the word NEXANS in stylised form. 261 The background to the trade mark action is that Nex 1 Technologies Co Limited applied to register a logo in relation to certain goods. Nexans SA opposed the registration, but their opposition was rejected. Nexans SA appealed to this Court and Murphy J allowed the appeal (Nexans S.A. v Nex 1 Technologies Co. Ltd [2012] FCA 180). Nexans filed material in support of its opposition and in support of its appeal. Mr Michel Rosseau made a statutory declaration on 30 October 2008. He stated that he was the Corporate VP Technical of Nexans and that he had been associated with the company for eight years and had held his position for five years. He stated that Nexans Australia Pty Ltd was Nexans SA authorised user of the NEXANS mark. He stated that Nexans Australia Pty Ltd commenced use of the NEXANS mark throughout Australia in 2001 in relation to cables and cabling systems. He referred to the approximate retail sales for goods sold in Australia under the NEXANS mark in 2005 and 2006. He stated that in 2006 Nexans SA acquired Olex Cables, Australia's leading producer of energy cable and a major exporter into China and the Asia Pacific region. He stated that the company had factories located in Lilydale and Tottenham in Victoria and that the company's major customers in Australia included the Australian Defence Department, Alcatel Australia, and Alstom Areva. He stated that Nexans SA had approximately 20,000 employees worldwide and operated manufacturing plants in 29 countries on five continents. He stated that it had commercial and marketing activities in more than 70 countries. He stated that Nexans SA was vigilant in protecting its NEXANS mark and had "a policy of opposing ...Nex… marks in the name of third parties throughout the world if it considers that there was a risk of confusion with its mark". 262 Mr Thierry Roucher swore an affidavit in support of Nexans SA's appeal to this Court. Mr Roucher stated that he was the marketing and communications director of Nexans SA and that he had been employed by Nexans in this position for 11 years. He said that he was responsible for planning, organising and developing and coordinating marketing communication plans and corresponding budgets for Nexans to develop brand attractiveness, promote business offers, and support sales forces in their customer approach for all priority markets of Nexans worldwide. This also included managing the Nexans brand portfolio. He annexes to his affidavit the financial records of Nexans showing the worldwide sales figures for goods sold under the NEXANS mark in the years 2000 to 2010, and he sets out the figures in a table. 263 Effective from 1 January 2001, Nexans as the owner of the word NEXANS and the stylised version of the word NEXANS, licensed the use of the licensed marks to Nexans Australia Pty Ltd. The initial fee for the rights granted was a lump sum of 10 euros, and the term of the agreement was a period of 10 years. 264 The second general particular in the Statement of Claim is that Nexans SA carried on business within Australia indirectly through Nexans Australia. There are three specific particulars of this allegation. 265 First, it is alleged that Nexans SA holds itself out as having a presence in Australia, among other countries. It is said that Nexans SA does that in the annual reports of the Nexans Group. The annual report for 2001 states that "Nexans employs 18,000 people in 28 countries and benefits from a commercial presence in 65 countries" and Australia is identified as one such country. The annual report for 2002 states the Nexans has production plants in 28 countries and operations in more than 65 and has 17,150 employees and Australia is identified as one such country. The annual report for 2003 contains a statement in materially similar terms. 266 Secondly, it is alleged that in relation to a development at Daydream Island in Australia, Nexans Australia supplied products under the Nexans brand, manufactured by and acquired from other companies within the Nexans Group. The circumstances surrounding the project at Daydream Island are as follows. There is a holiday resort on Daydream Island and, in 2002, it was undergoing a major redevelopment. The redevelopment included the laying of a submarine energy cable to the island in order to secure a dedicated and reliable power supply to the development. The cable was described in documents in evidence as "4,720 metres of 6.35/11kV, 3-core copper conductor, steel wire-armoured submarine energy cable". Nexans made an announcement from Paris on 9 April 2002 that Nexans had been awarded the contract to supply the submarine energy cable. It seems that the cable had been manufactured at a Nexans facility in Hanover, Germany and in November, a company called Downer RML commenced laying the cable. The order for the submarine energy cable was given to Nexans Australia and was its first order. It seems that in its promotions, Nexans referred to itself as Nexans or the Nexans Group. The press release contains a quote from Mr Yvon Raak who was a member of the Executive Committee with responsibility for "Energy" and one of the contacts is Mr Michel Gedeon who works in the head office. 267 Thirdly, it is alleged that Nexans Australia was dependent on Nexans SA financially and otherwise, such that Nexans Australia was not carrying on its own business, but that of the Nexans Group, and of its ultimate parent, Nexans. The following is established on the evidence. On 10 July 1999, the Australian Securities and Investments Commission issued a class order which was said to provide "relief to small proprietary companies which are controlled by a foreign company from the requirement to prepare and lodge an audited financial report provided that they are not part of a large group". One of the conditions of the entitlement to proceed in accordance with the class order was that the directors of the company had resolved, no earlier than three months before the commencement of the relevant financial year, that the relief available under the class order be applied in respect of the relevant financial year. The directors of Nexans Australia resolved as required by the class order for the financial years ending 31 December 2000, 31 December 2001, 31 December 2002 and 31 December 2003. 268 Nexans Australia produced documents on subpoena and some of the documents were put into evidence. The documents put into evidence included the company's financial reports from incorporation on 10 October 2000 to 31 December 2001, from 1 January 2002 to 31 December 2002, and from 1 January 2003 to 31 December 2003. These reports show that the company made losses in the first two periods and a small profit (i.e., excess of revenue over expenses) during the third period. In all three periods covered by the financial reports, there is a note in the reports that there are non-trade interest bearing amounts due to related entities which are repayable on demand and that Nexans Australia is dependent on continued financial support from "its ultimate parent company, Nexans SA, or from an alternative source …". The directors of Nexans Australia express the view that the company can continue to operate as a going concern partly because of the likelihood that financial support will continue to be provided by Nexans SA or its related entities. The documents produced by Nexans Australia and put into evidence included minutes of directors' meetings. On 22 December 2003, the directors of Nexans Australia resolved that Mr Martin Lynn's consent to act as secretary and director of the company was subject to Nexans Corporate continuing to support Nexans Australia, even when it is in a negative equity position. Furthermore, the same minutes record that Nexans Australia's largest liability was to Nexans Corporate central treasury and that, in the event of the closure of the company, all creditors would be paid with any shortfall in net assets, reducing the amount repaid to Nexans central treasury. Finally, the ACCC pointed out by reference to the minutes of the meetings of the directors of Nexans Australia that between 10 October 2000 and 1 January 2004, the minutes do not record "any strategic decision-making of the board as to the operations and business of Nexans Australia". The contention appears to be correct as a matter of fact, although there are only minutes of only a handful of directors' meetings. 269 The fourth specific particular of Nexans SA carrying on business within Australia indirectly through Nexans Australia is that Nexans Australia held itself out to customers in Australia as not being a separate profit centre within the Nexans Group. The ACCC relies on the statements in documents put into evidence. 270 On 4 October 2001, the managing director of Nexans Australia said to a representative of Aero and Military Products Pty Ltd: … one of my main roles is to ensure Nexans marketing & sales channel harmony - in all markets … to ensure the Nexans' [sic] messages to local customers are consistent. … Our team is here to assist ALL Nexans customers, regardless of product, market or sales channel. 271 On 13 June 2003, a representative of Nexans Australia said to a customer, Bale Defence Industries, the following: 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 Organization". 272 Finally, the ACCC relies on the fact that in the financial statements for Nexans Australia, for 2002 and 2003, there is a statement to the effect that the company is in "the business of promoting awareness of the Nexans brand and generating sales of Nexans products into the Australia [sic], New Zealand and Pacific Islands". I note a similar (but not identical) statement was made in the 2001 financial statements. 273 The third general particular in the Statement of Claim is that Nexans SA carried on business within Australia indirectly through Nexans Deutschland (i.e., Nexans Deutschland Industries GmbH & Co KG). The specific particular is that Nexans Deutschland supplied products under the Nexans brand, manufactured within the Nexans Group, to a customer in Australia. It seems that in 2003, Nexans Deutschland were providing goods to Bale Engineering Pty Ltd and invoicing it for those goods. A similar relationship existed between Nexans Deutschland and Aero and Military Products Pty Ltd in 2001. 274 The ACCC states in its Statement of Claim that it may supplement the particulars following discovery and interrogatories. 275 The ACCC "supplemented" these particulars in its closing submissions. First, the ACCC relied on the fact that the Nexans Group was in the habit of issuing press releases apparently from Paris announcing projects secured by the Group around the world. Most of the press releases related to projects in 2003. Mr Noonan agreed that typically when Nexans or any part of Nexans secured a contract of any size or substance anywhere in the world, its head office, Nexans SA, would issue a press release in connection with that project. The press releases refer to Nexans in a way that identifies the whole Group or at least it does not discriminate between various companies in the Group. The Group also announced to the public its preliminary consolidated results in 2002. 276 Secondly, the ACCC contended that the GESO was an instrument of Nexans SA which controlled "all aspects of the Nexans Group's global sales activities". I have already identified the facts relevant to the GESO and its operations. I should add that Mr Machledt, the President of the GESO, had a delegated authority from Mr Hauser dated 2 January 2001 (acceptance of delegation) to represent the company in commercial dealings with third parties within a limit of 500,000 euros. 277 Thirdly, the ACCC relied on the fact that Mr Machledt and Mr Francois Blandeau visited Nexans Australia between 22 June 2002 and 6 July 2002. One of the matters which they proposed to two members of the Executive Committee (Mr Michel Lemaire and Mr Bruno Thomas) as part of a restructure was that Mr David Chaney, who was a director of Nexans Australia from 10 October 2000, be laid off. The records of the Australian Securities and Investments Commission indicate that Mr Chaney ceased to be a director of Nexans Australia on 13 September 2002. 278 Fourthly, the ACCC relied on the fact that Nexans SA issued an external newsletter in June 2002 stating that it had been awarded a contract to install 1,200 points in Woolworths stores and that its ability to offer "the right performance and value for money with the support of a large global organisation was key to the successes". 279 Finally, the ACCC relied on the fact that at the meeting of participants on 14 November 2002, a report about the Basslink project was provided, and at the meeting of participants on 27 November 2003, a report about the Snowy Hydro Project was provided, and of course, there were emails between participants about the project. In addition, there is evidence about the other three projects (at [91-103]). As I have said, Nexans SA claims that these matters are outside the particulars. 280 Before finishing this summary of the ACCC's case, I should say that the ACCC made it clear in its oral submissions that it was not asserting that the Court should pierce the corporate veil. 281 It is convenient to start by identifying those matters which I think are of little or no significance in terms of the issue of whether Nexans SA was carrying on business within Australia at the relevant time. 282 I start with matters which are said to be relevant to whether Nexans SA was carrying on business within Australia directly. I do not think the fact that the ultimate holding company of a large worldwide Group, insures all of the directors and officers of the companies comprising the Group means that the ultimate holding company is carrying on business within all the jurisdictions where companies in the Group are operating or is even a reasonably strong indication of that fact. The registration of trade marks in Australia by an overseas company could be an indication that the company is carrying on business in Australia, but, of course, it is only the beginning of the inquiry. The fact is that here there is a licence to Nexans Australia which (depending on the precise circumstances) may be considered to be an authorised user of the registered trade marks under s 8 of the Trade Marks Act. Nor do I think the fact that Nexans SA took action in this Court to protect its rights as owner of the registered trade marks indicates that it was carrying on business within Australia. 283 I turn now to matters said to be relevant to whether Nexans SA was carrying on business within Australia indirectly through Nexans Australia. The fact that Nexans SA or the Nexans Group identified itself as having a commercial presence within a number of countries, including Australia, is not particularly significant. I think that, in fact, it was the Nexans Group that was claiming to have a commercial presence. The same thing may be said of the press releases generally and the press release in relation to the Daydream Island project. These matters involved the promotion of the Nexans Group and the Nexans brand, but I see no reason to conclude from them, that Nexans SA was holding itself out as carrying on business within Australia. Even if it was holding itself out in that way, ultimately that is not the issue. The issue is whether it was, in fact, carrying on business within Australia. The fact that Nexans Australia was not a separate profit centre does not advance the matter very far. It does not necessarily point to Nexans SA because, in the case of large worldwide groups of companies, there are often regional profit centres. I am disposed to think the fact that Nexans Deutschland had commercial relations with Bale Engineering Pty Ltd and Aero and Military Products Pty Ltd might suggest that it was carrying on business within Australia, but does not say anything about whether Nexans SA was doing so. 284 I come now to the significance of the GESO. I assume it is put forward as evidence of Nexans SA carrying on business within Australia indirectly through Nexans Australia. There is no evidence of the GESO as a body directing subsidiaries as to how they were to proceed commercially, for example, that they were to enter into particular contracts. There may well have been persons on GESO who had significant influence in terms of how companies within the Nexans Group carried out their activities, but I cannot see any evidence of it as a body directing companies within the Group and, most relevantly, Nexans Australia. 285 I do not think that there is sufficient evidence to conclude that Nexans Australia carried on business as agent for Nexans SA. I do not think the financial support by way of an undertaking provided by Nexans SA to Nexans Australia was sufficient of itself to support the conclusion that the business Nexans Australia was carrying on was, in fact, the business of Nexans SA. There is, in any event, an additional complication in this case in that Nexans Participations held all the shares in Nexans Australia. It is true that Nexans SA held all of the shares in Nexans Participations, but there is no evidence of the relationship between those companies that would enable me to conclude that Nexans Participations was the agent of Nexans SA and that, in turn, Nexans Australia was the agent of Nexans Participations. 286 It seems to me that the issue comes down to the question whether Nexans SA was carrying on business within Australia by reason of the fact that Nexans SA was providing services to Nexans Australia under the General Relations Agreement and the Central Treasury Agreement. In my opinion, by providing services under the General Relations Agreement to Nexans Australia, Nexans SA was carrying on business in Australia (Bray v F Hoffman-La Roche Ltd and Others at [81]) per Merkel J; ACCC v April International Marketing Services Australia (at [171] per Bennett J). 287 In the circumstances, I do not need to consider whether the ACCC is entitled to rely on the evidence of other projects as evidence of carrying on business in Australia and, if so, the effect of that evidence. Nor do I need to consider whether Nexans SA was "otherwise connected" with a State or Territory in Australia (see my consideration of "otherwise connected" in Yazaki at [365]-[376]).

Conclusions 288 In making the Snowy Hydro Project Agreement, Prysmian contravened s 45(2)(a)(i) and (ii) of the Trade Practices Act and gave effect to the A/R Cartel Agreement in contravention of s 45(2)(b)(ii) of the Trade Practices Act. In issuing the Price Guidance, Prysmian gave effect to the Snowy Hydro Project Agreement in contravention of s 45(2)(b)(i) and (ii) of the Trade Practices Act and gave effect to the A/R Cartel Agreement in contravention of s 45(2)(b)(ii) of the Trade Practices Act. 289 The application against Nexans SA should be dismissed. 290 I will hear the parties as to other orders and costs. I certify that the preceding two hundred and ninety (290) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.