THE ROLE OF THE HEADS OF AGREEMENT
132 A central controversy in the appeal, as before the primary judge, was the role of the heads of agreement. The CEPU argued that the heads of agreement were to be treated as a stand alone contract which superseded all prior negotiations, arrangements and understandings.
133 The CEPU argued that his Honour should not have drawn the adverse inferences which he did in reaching a conclusion that there was an arrangement or understanding in place at the time the heads of agreement were signed on 23 August 2001 (or handed over by Mr Sutherland and Mr Mighell on 24 August 2001) which reflected the terms of the letter of 13 August 2001. That submission has an air of unreality having regard to the factual matrix in which the heads of agreement were made. It overlooks that the CEPU's demands, as made by Mr Mighell on 9 August, were acceded to and implemented by Edison as a matter of fact by 13 August 2001.
134 There are clear indications that the conduct of Edison and the CEPU was governed by a relationship which was broader than that expressed literally in the signed heads of agreement. That is not to say that the heads of agreement themselves must have then been a sham, as the CEPU argued on the appeal and before his Honour. They merely represented part of the arrangement or understanding which the parties had reached concerning the need for electrical contractors at the Loy Yang B site to have EBAs with the CEPU.
135 A 'sham' is a reference to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences (Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at 486 [46] per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ). Here, the heads of agreement were intended to have their apparent consequences, but with the addition that Edison's 'request' would be an iron fist in a velvet glove.
136 Contractual assent may be inferred from conduct (cf: Halloran v Minister Administering the National Parks and Wildlife Act 1974 (2006) 224 ALR 79 at 93 [56] per Gleeson CJ, Gummow, Kirby and Hayne JJ). The adoption or consensual nature of an arrangement or understanding can also be inferred from conduct (Lutovi 140 CLR at 444-445). The activities which the Parliament proscribed in s 45E are often likely to be proved by circumstantial rather than direct evidence, given the nature of proceedings where such conduct is in issue. That is so even though s 76(2) excludes individuals from being liable to pecuniary penalties. As is often the case in proceedings where a contract, arrangement or understanding (made or arrived at in contravention of a legislative proscription) must be proved, circumstantial evidence is sometimes the only evidence available.
137 Even in criminal law, many offences are proved, and indeed can only be proved, by circumstantial evidence. So, in a case of conspiracy, community of purpose may be proved by independent facts or otherwise. If one defendant is shown to be committing other acts, tending to the same end, then even:
'… though primarily each set of acts is attributable to the person whose acts they are, and to that person alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge'.
(The King and The Attorney-General of the Commonwealth v Associated Northern Collieries (1911) 14 CLR 387 at 400 per Isaacs J approved in Ahern v The Queen (1988) 165 CLR 87 at 94 per Mason CJ, Wilson, Deane, Dawson and Toohey JJ.)
138 Of course, conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. As the High Court said in Ahern 165 CLR at 93:
'This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.
Thus it was said in Tripodi ((1961) 104 CLR at 6) that proof of the crime of conspiracy "may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment".'
139 In Ahern 165 CLR at 104 the Court pointed out that in a case of conspiracy, it is often difficult, if not impossible, to segregate evidence so as to enable a ruling to be given in advance of the leading of other evidence for the purposes of establishing whether or not a conspiracy has been proved. Thus, a judge must consider this question, usually, when all the evidence is in to see whether there is enough in the independent evidence of participation of an individual to enable a case to go to the jury. Such a position is to be distinguished from the proof of an arrangement or understanding, which need not amount to an agreement or combination. The deliberate choice of the concepts of 'arrangement or understanding' as criteria, in addition to 'agreement', which are proscribed by s 45E, evinces a legislative choice to broaden, rather than narrow, the reach of the section.
140 The approach of the CEPU, both before the primary judge and in the appeal, has been to, in effect, dissect each individual piece of evidence for its claimed inadequacy and then to assert that it must be put to one side and not considered in the context of the other pieces of evidence. In our opinion this is erroneous. It would be an incorrect approach to dealing with a criminal charge of conspiracy. There, it is the fact of agreement or combination that must be proved beyond reasonable doubt, as opposed to the looser concepts of arrangement or understanding which are included within s 45E. Moreover, the Parliament has deliberately chosen to apply the civil standard of proof to the establishment of a contravention of s 45E. That is not to lose sight of the requirements of s 140(2) of the Evidence Act or the common law as to the necessity of the court attaining, in arriving at a finding of contravention, the degree of satisfaction to which we have referred in these reasons.
141 If, as in the case of the proof of a criminal charge of conspiracy, there is material to evidence an agreement, arrangement or understanding, the combination so evidenced (whether a formal agreement or the looser concepts of arrangement or understanding) implies an authority in each of the participants to act or speak on behalf of the others (Tripodi v The Queen (1961) 104 CLR 1 at 7; Ahern 165 CLR at 95). Thus, anything said or done by one of the participants in pursuit of the common object may be treated as having been said or done on behalf of another of the participants. Once participation in the agreement, arrangement or understanding has been established, such evidence may prove the nature and extent of the participation, as the Court explained in Ahern 165 CLR at 95. Mason CJ, Wilson, Deane, Dawson and Toohey JJ said that the principle lying behind that rule was one of agency and that the closest analogy was with partners in a partnership business. There is no reason not to apply, in considering s 45E(3), such a concept to an arrangement or understanding, in addition to an agreement. Indeed, since the arrangement or understanding need not be contractual or enforceable and each party is entitled to withdraw from it or act inconsistently with it notwithstanding the adoption of it, it would be inappropriate to impose a higher standard of proving such an arrangement or understanding than the law of conspiracy requires for the proof of the agreement or combination (cf: Lutovi 140 CLR 443-444).
142 The Parliament was alive to the fact that the conduct proscribed by s 45E is often likely to be of a kind insusceptible of proof by an applicant through direct evidence from one or more participants, but is more likely to be established by circumstantial evidence and inferences to be drawn from it. As Dixon CJ, Fullager and Windeyer JJ said in Tripodi 104 CLR at 7-8:
'But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts. It is easy to understand therefore that preconcert confederacy or combination may make such directions and the like admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design. In the present case the things said and done when the prisoner was not present or within earshot are for the most part of this character and are admissible as part of what was done in furtherance of the common criminal purpose.'
143 We reject the CEPU's approach of dissecting each piece of evidence in isolation from other evidence. That approach distorts unacceptably the function of the tribunal of fact. The court can consider the whole of the evidence in arriving at a decision on any fact or facts. A circumstantial case can be proved if the tribunal of fact considers that the evidentiary mosaic coheres into a clear design. But a circumstantial case may fail if, at the end of the day, it remains a collection of disparate and not necessarily connected matter.
144 In R v Hillier (2007) 233 ALR 634 at 646-647 Gummow, Hayne and Crennan JJ referred with approval to what Gibbs CJ and Mason J had said in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535-536, namely:
'At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence: cf. Weeder v The Queen ((1980) 74 CR. App. R. 228 at p 231).
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider "the weight which is to be given to the united force of all the circumstances put together": per Lord Cairns, in Belhaven and Stenton Peerage((1875) 1 App. Cas. 278 at p 279), cited in Reg v Van Beelen((1973) 4 S.A.S.R. 353 at p 373); and see Thomas v. The Queen([1974] N.Z.L.R. 34 at pp 37, 38, 40) and cases there cited. In Plomp v The Queen ((1963) 110 C.L.R. 234)it was argued that the motives of the accused could not be considered until it was shown by evidence that in some physical way his actions were responsible for his wife's death. The Court rejected this argument. Dixon CJ said ((1963) 110 C.L.R. at p 242):
"All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done."
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence.' (emphasis added)
145 Brennan J said in the same case that an inference of guilt can safely be drawn if it is based upon primary facts which are found beyond reasonable doubt and if it is the only inference which is reasonably open upon the whole of the body of primary facts (Chamberlain (No 2) 153 CLR at 599). He said that the insufficiency of a piece of evidence to support an inference of guilt does not by itself warrant setting aside a verdict of guilty if that piece of evidence, however important, is but a part of the whole body of evidence available to support the inference.
146 In this case we have proceeded to evaluate the evidence for ourselves, although we have accepted as correct his Honour's findings as to the reliability of the evidence of the witnesses. It was not argued that his Honour misused his advantage in doing so or that those findings were themselves incorrect. We have also applied the civil onus of proof but had regard to the elements required by s 140(2) of the Evidence Act and the considerations to which we have referred stemming from the decision in Briginshaw 60 CLR 336.
147 We are of the opinion that the evidence amply demonstrates that by 23 August 2001, there was an arrangement or understanding of the kind pleaded and as found by his Honour (although we have not had any regard to the 15 August memorandum of understanding to come to the same conclusion). The events and circumstances in evidence establish that Edison saw itself, as reflected in Mr Driscoll's instruction of 10 August 2001, as having no choice but to accept the CEPU's demands. There was no evidence of any change in Edison's position for over two years until it received the ACCC's letter in October 2003. Edison acted immediately to implement Mr Driscoll's 10 August instruction. Thus, on the following Monday Mr Nabulsi of DJN was told that because DJN would not enter into an EBA with the CEPU, Edison would not deal with DJN in the future. This was an adoption by Edison of the CEPU's demand. It is highly likely, and we find, that by 23 August 2001, and probably before then, the CEPU was aware that Edison was so acting. No event in evidence, other than the communications of 20 and 23 August, suggested that the CEPU had any reason to relax or had relaxed its demand. Those communications referred to discussions between Mr Sutherland and officials of the CEPU. There was an absence of any countervailing evidence. Such evidence might have been given by the CEPU and, as Gleeson CJ pointed out in Mead [2007] HCA 25 at [13], that is a fact we can hardly ignore.
148 The inference to be drawn in this state of affairs, namely the absence of a countervailing explanation, is that the CEPU had not watered down its demands. Rather, the CEPU understood from the clear and definite actions of Edison, including the despatch and its receipt of the 13 August letter, during the week commencing on that day, that its demands had been accepted by Edison and that the heads of agreement were to be read in the light of that arrangement or understanding. The only witness called by the ACCC who could give evidence of the discussion was Mr Sutherland. Once he had given the implausible evidence of his meeting with Mr Mighell on 10 August, he plainly was not going to give his Honour an account that was reliable.
149 If the discussions of 20 and 23 August had involved a back-down by the union so that it was prepared to accept the literal meaning of the language in cl 4.1 of the final version of the heads of agreement, then Edison could have invited DJN to continue to provide services at Loy Yang B. It did not do so until two years later when the ACCC raised the suspicion of a contravention of s 45E. Nor was there any evidence that the team leaders were told after 16 August 2001 that the instruction of that day had been modified or withdrawn. In that situation the CEPU argues that the Court would be engaging in an exercise of conjecture to think that there was an arrangement or understanding reflective of the position which it had demanded on 9 August 2001 and which Edison had implemented on 13 August and 16 August.
150 In our opinion, common sense suggests that Edison wrote the letter of 13 August, acted as it did towards DJN and instructed its team leaders, in order to obtain the result it wanted - namely the CEPU's signature on the site agreement. The CEPU signed because it was aware that Edison had adopted its demand as repeated on 9 August. The CEPU thus knew that Edison would not just request, but would require, electrical contractors to have EBAs with the CEPU. Edison had also demonstrated that it would so act in the meeting with DJN and its instructions to its team leaders in the week of 13 August. We are satisfied that there was a meeting of minds between Edison and the CEPU on 23 or 24 August in the sense explained by Lindgren J in Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (1999) 92 FCR 375 at 407-409 [137]-[141] adopting Smithers J in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291. That occurred when Mr Sutherland agreed to sign or handed over the heads of agreement. That is enough to constitute an arrangement or understanding. We are satisfied that is the position clearly established by the evidence.
151 In a case like the present the applicant has only to discharge the civil onus of proof. Thus, it must follow that it would be incorrect to accept the CEPU's invitation to condition the drawing of an inference establishing an applicant's case only where no inference consistent with innocence (from liability of the respondent) is open on the evidence. Rather, the drawing of such an inference can occur after the consideration of the matters which s 140(2) of the Evidence Act and the test in Briginshaw 60 CLR 361 at 363 require. As Deane, Dawson, Toohey, Gaudron and McHugh JJ said in Doney v The Queen (1990) 171 CLR 207 at 211, if the criminal standard of proof does not apply, the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved (see too Peacock v The King (1911) 13 CLR 619 at 638 per Griffith CJ and Palmer v Dolman [2005] NSWCA 361 at [33]-[47] per Ipp JA with whom Tobias and Basten JJA agreed).
152 The question is whether on the whole of the evidence it is open to us to infer on the balance of probabilities that (as alleged in the pleaded case) Edison and the CEPU had entered into a contract or arrangement or arrived at an understanding as at 23 or 24 August 2001 that Edison would require all electrical contractors at the Loy Yang B site to have the EBAs with the CEPU.
153 In our opinion we should draw the inference that there was an arrangement or understanding in place between Edison and the CEPU when the heads of agreement were signed on 23 August 2001 (or delivered on the next day) which involved DJN, in particular, being prevented from supplying services to Edison. Such an inference was correctly found by the primary judge. The behaviour of both Edison and the CEPU strongly suggested that such an arrangement or understanding was in place and that it consisted of more than the mere words of the heads of agreement. We see no error in the ultimate finding of fact made by the primary judge. That finding was not dependent only upon his use of the memorandum of understanding, even though he had said that, on the whole, the evidence supported the clearest of inferences that by 15 August Edison had communicated its acceptance of the CEPU's requirement that electrical contractors not be permitted to perform work at the Loy Yang site unless they had a current certified agreement with the CEPU. The finding is amply justified by the whole of the evidence other than the memorandum of understanding. The primary judge continued (at [167]):
'The critical thing is that Edison communicated its acceptance of this requirement to the CEPU and that this communication resulted in an arrangement between Edison and the CEPU. The existence of such an arrangement is not inconsistent with the proposition that the parties then proceeded to record their arrangement in a document prepared by Corrs.'
On the findings we have made, that the 13 August letter was sent to and received by the CEPU, Edison had communicated its acceptance of the CEPU's demand by or soon after 13 August.
154 In our opinion, when agreement was reached on the heads of agreement and Mr Mighell assured Mr Sutherland that the site agreement would be signed by the CEPU on 23 or 24 August, an arrangement was made or an understanding arrived at in contravention of s 45E(3) as pleaded. The communication of the acceptance by Edison can be inferred on the balance of probabilities and having regard to the factors required to be considered by s 140(2) of the Evidence Act and the principles in Briginshaw 60 CLR 336 and related authorities to which we have referred. The objective facts are compelling namely:
· Mr Driscoll's instruction to his subordinates to agree to the CEPU's requirements on 10 August;
· the circumstances of the creation of the letter of 13 August and its signature by Mr Sutherland;
· the likelihood (and our finding) that the letter was sent to and received by Mr Mighell;
· Edison's instructions to Mr Buckley which he carried out in his discussions with Mr Nabulsi, of DJN, on 13 August;
· Edison's instructions to team leaders on 16 August which reflected that Edison was carrying out the CEPU's demand;
· the circumstances of urgency affecting Edison's desire for a rapid solution to the impediments to having the site agreement signed;
· the change in Edison's previous practice of not interfering in its contractor's labour relations which was implemented until October 2003;
· the CEPU's signing the site agreement on 23 August without any evidence that it had changed its demand about EBAs.
155 The only contractor identified by Edison as affected by the CEPU's demand, namely DJN, was told that the consequence of its refusal to sign an EBA with the CEPU was that Edison would give it no more work at the Loy Yang B site. There is no reason why Mr Sutherland would not have sent the 13 August letter. Mr Sutherland's unsatisfactory evidence did not explain what he did or what passed between him and the CEPU's Messrs Mighell and Mooney. The evidence of other witnesses from Edison explained that not only were Mr Driscoll's instructions to agree to the CEPU's demands, but also they had been met in a practical way and Edison's staff were informed that that was what was happening.
156 The communication to Mr Nabulsi on 13 August meant that he knew that Edison was doing what the CEPU wanted. That conduct was out in the open. Mr Nabulsi said people on sites talked about such encounters as he had had. Three days later Edison's site managers were told much the same. There was no secrecy in Edison's conduct. There was no evidence suggesting why Mr Sutherland would not have sent the 13 August letter yet not have stopped the 13 and 16 August actions of his subordinates in giving effect to its contents. Nor was there any evidence that Corrs had been instructed about the 13 and 16 August communications when they came to draft the more circumspect heads of agreement.
157 Given that Mr Sutherland's evidence as to his conversations and conduct was rejected by the primary judge, the case against the CEPU became largely circumstantial. The actions of Edison referred to above demonstrate both its intent and conduct to perform in accordance with the CEPUs demand.
158 None of the actions of Edison's employees suggest that there was some change of heart after 13 August such as would suggest that the letter of that date had not been sent by Mr Sutherland to the CEPU. And the memorandum of understanding of 15 August was also some evidence that the CEPU would be likely to sign the site agreement on or shortly after 15 August.
159 The CEPU argued that Mr Sutherland's decision to instruct solicitors, Corrs, to prepare heads of agreement was inconsistent with the inference which we see as correct, namely that Edison had taken a decision and communicated it. We agree with the primary judge's finding that it is not uncommon for those charged with finding a solution to a commercial problem to arrange the solution and then seek legal advice in relation to its documentation, especially when the matter is urgent.
160 The emails of 20 and 23 August suggested Mr Sutherland was having discussions with officers of the CEPU. It is not possible to infer what the content of those discussions was. The CEPU argued that an inference ought be drawn consistent with it being exonerated from liability: that Edison and the union had agreed to the literal words of cl 4.1 of the heads of agreement as the full extent of their arrangement in relation to the issue of EBAs for electrical contractors at the Loy Yang site.
161 In our opinion such an inference is improbable and we reject it. The contemporaneous actions of Edison did not accord to this far more anodyne position. By 13 August, Edison had made a request to DJN, which DJN in turn rejected. If the true position understood between Edison and the CEPU were that a simple request would have been sufficient, then there was no reason for Edison to take the next step. That conduct, which was to refuse to engage DJN and to persist in the position which Mr Buckley had communicated on 13 August to Mr Nabulsi that DJN's services would be no longer utilised, was conformable with the clear position put by Mr Mighell on 9 August, the letter signed by Mr Sutherland on 13 August and the position communicated to Edison's site managers on 16 August. Nor was there any evidence that Mr Driscoll had withdrawn his instructions of 10 August or countenanced that they could be watered down by his subordinates.
162 Actions can speak louder than words in a circumstantial case. In these ways, Edison demonstrated that it was committed to complying with the CEPU's demands. And, in return, the CEPU signed the site agreement.
163 The CEPU did not advance any argument to explain why each of Edison and the CEPU could be found to have changed its mind after Mr Driscoll gave his instructions on 10 August or why Edison would have carried out those instructions without changing its actions at some point before the heads of agreement were signed or exchanged. And the reason is not far to seek. The CEPU's argument, while open on the isolated evidence of the literal wording of the heads of agreement, does not accord with common sense in light of Edison's determination to secure the execution of the site agreement and its conduct to meet the CEPU's demands. And while there is no evidence of direct communication, other than the 13 August letter, between Edison and the CEPU of the acceptance of Mr Mighell's 9 August demands, it is implausible that the CEPU did not learn of Edison's acceptance by 23 August. The CEPU had no reason to accept the vacuous wording of cl 4.1 of the heads of agreement unless it understood that Edison had accepted, indeed had already acted on, its original demand.
164 In the construction of a contract, the court places itself in the commercial matrix in which the parties were at the time that the contract was made. This is so that the court can construe correctly both the express terms used by the parties and those which are included by implication in order to give effect to their presumed intention. In Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289 at 293 [10]; 76 ALJR 436 at 439, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said that it was appropriate to have regard to more than internal linguistic considerations and to consider the circumstances with reference to which the words in question in a contract were used and, from those circumstances, to discern the objective which the parties had in view. They applied what Lord Wilberforce had said, namely that an appreciation of the commercial purpose of the contract '… presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating' (Reardon Smith Line v Yunvar Hansen-Tangen [1976] 1 WLR 989 at 995-996).
165 And, in Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 21 CLR 181 at 188 [11] approving Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912, Gleeson CJ, Gummow and Hayne JJ said that interpretation of a written contract involved
'… the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract'.
166 These principles apply both to the construction of the heads of agreement themselves and to ascertaining what any arrangement or understanding may have been between the parties at the time the heads of agreement were made.
167 Thus, we find that Edison and the CEPU intended that the heads of agreement should be controlled by, and operate in accordance with, a wider arrangement which had been agreed upon by them and was reflected in Edison's conduct during the week of 13 August and the CEPU's signing of the site agreement on 23 August.