J Hutchinson Pty Ltd v Australian Competition and Consumer Commission

Background 97 The primary judge provided the following concise summary of the proceeding by way of an introduction to the Liability Judgment: [2] The first respondent (Hutchinson) is a large, privately owned construction company, delivering projects with an estimated value of $2.5 billion annually. Hutchinson was the head contractor for the Southpoint A construction project located at 269 Grey Street, South Brisbane in Queensland (the Southpoint project). The Southpoint project was the design and construction of a residential apartment tower. [3] The second respondent (the CFMEU) is a trade union organisation. In 2016, the CFMEU was an organisation for the purposes of s 27 of the Fair Work (Registered Organisations) Act 2009 (Cth). On 27 March 2018, the CFMEU amalgamated with the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia to become the CFMMEU. However, in these reasons, it will be referred to as the CFMEU as it was known in 2016 and as it was referred to by the parties and the witnesses at the trial. [4] Hutchinson was covered by a CFMEU enterprise bargaining agreement which was approved in 2012 (2012 EBA) which was replaced by another enterprise bargaining agreement in November 2015 (2015 EBA). [5] Relevantly, pursuant to clause 35.2 of the 2015 EBA, Hutchinson was obliged to consult with its employees and the CFMEU about the appointment of subcontractors in certain circumstances where the use of those subcontractors may potentially affect the job security of those employees. Clause 35.2 also provided to the effect that, if, after consultation, a subcontractor was engaged by Hutchinson, the subcontractor and its employees will receive terms and conditions of engagement (or terms no less favourable) as they would receive if they were engaged as employees under the 2015 EBA performing the same work. [6] The parties and the witnesses used the expression "EBA" to describe a CFMEU enterprise bargaining agreement entered into by a contractor or subcontractor. They also used the expression "non-EBA" to describe a situation where a contractor or subcontractor did not have an "EBA", being one covered by the CFMEU. The evidence shows that such terms were used in 2016, and were understood to have these meanings at that time. I will adopt these expressions in these reasons. [7] Waterproofing Industries Qld Pty Ltd (WPI) is a company which entered into a subcontract with Hutchinson on 22 March 2016 to perform certain waterproofing works at the Southpoint project. [8] WPI did not have an EBA and the CFMEU complained that it was not consulted prior to its engagement. [9] Shortly after this, the CFMEU threatened to engage in industrial action if Hutchinson allowed WPI to continue working on the Southpoint project. [10] WPI was excluded from the site from 11 June 2016 and its subcontract was terminated by letter dated 26 July 2016. [11] The Australian Competition and Consumer Commission (ACCC) alleges that Hutchinson contravened ss 45E(3) and 45EA of the Competition and Consumer Act 2010 (Cth) by making, and giving effect to, an arrangement or arriving at an understanding with the CFMEU or one of its officers, described as the boycott arrangement, containing the boycott provision. The boycott provision is said to have this content: that Hutchinson would terminate a subcontract with, or otherwise cease to acquire services from, WPI at the Southpoint project in 2016. [12] The ACCC also alleges that the CFMEU has accessorial liability with respect to Hutchinson's contraventions. The ACCC alleges that the CFMEU induced Hutchinson's contraventions of ss 45E(3) and 45EA of the Act by threatening or implying that there would be conflict with, or industrial action by, the CFMEU if Hutchinson did not cease using WPI. The ACCC also alleges that the CFMEU was, by the same conduct and by being party to the boycott arrangement, knowingly concerned in, or party to, those contraventions for the purposes of s 76 of the Act. [13] A key defence which is raised by the respondents was to the effect that the exclusion of WPI from the site and the termination of the WPI subcontract arose as a result of the unilateral and erroneous belief of Mr Meland, the project manager, that WPI required an EBA by reason of the terms of the 2015 EBA, rather than any unlawful arrangement or understanding between the CFMEU and Hutchinson. 98 The primary judge found that there was a proscribed agreement or understanding containing a boycott provision. A central issue at trial, maintained on appeal, was whether the primary judge was correct in making that finding. 99 In these reasons, consistently with the approach taken by the primary judge, a reference to an enterprise bargaining agreement (EBA) is a reference to a CFMEU EBA, such that references to WPI not having an EBA is a reference to it not having a CFMEU EBA.

Relevant provisions of the CCA 100 The primary judge succinctly extracted or summarised the key relevant provisions of the CCA as follows, there being no suggestion of error in that regard: [278] Section 45E of the Act is directed at situations where a person capitulates in order to avoid loss or damage as a result of threatened industrial action against the target: Explanatory Memorandum to the Workplace Relations and Other Legislation Amendment Bill 1996 (Cth) at [18.30]. It relevantly prohibits a corporation from making an arrangement or arriving at an understanding with an organisation of employees (or an officer or other person acting on behalf of the organisation) if: (a) the corporation has, in the past three months acquired services from a person; and (b) the arrangement or understanding contains a provision that has the purpose of preventing or hindering the corporation from acquiring or continuing to acquire services from that person. [279] Relevantly, s 45E of the Act provides as follows: Situations to which section applies (1) This section applies in the following situations: … (b) an acquisition situation - in this situation, a person (the first person) has been accustomed, or is under an obligation, to acquire goods or services from another person (the second person). Despite paragraphs (a) and (b), this section does not apply unless the first or second person is a corporation or both of them are corporations. Note: For the meanings of accustomed to supply and accustomed to acquire, see subsections (5) and (7). … Prohibition in an acquisition situation (3) In an acquisition situation, the first person must not make a contract or arrangement, or arrive at an understanding, with an organisation of employees, an officer of such an organisation or a person acting for and on behalf of such an officer or organisation, if the proposed contract, arrangement or understanding contains a provision included for the purpose, or for purposes including the purpose, of: (a) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person; or (b) preventing or hindering the first person from acquiring or continuing to acquire such goods or services from the second person, except subject to a condition: (i) that is not a condition to which the acquisition of such goods or services by the first person from the second person has previously been subject because of a provision in a contract between those persons; and (ii) that is about the persons to whom, the manner in which or the terms on which the second person may supply any goods or services. … Meaning of accustomed to acquire (7) In this section, a reference to a person who has been accustomed to acquire goods or services from a second person includes (subject to subsection (8)): (a) a regular acquirer of such goods or services from the second person; or (b) a person who, when last acquiring such goods or services, acquired them from the second person; or (c) a person who, at any time during the immediately preceding 3 months, acquired such goods or services from the second person. [280] Subsection 45EA1 of the Act provides that a person must not give effect to a provision of a contract, arrangement or understanding if, because of the provision, the making of the contract or arrangement, or the arriving at the understanding, by the person, contravened s 45E(3). 101 The primary judge then observed at LJ[281] that the concepts in s 45E, while not defined, bear similarities with other provisions of the CCA, such that it is appropriate to have regard to the ordinary principles of statutory construction which are informed, but not governed, by decisions on such of those provisions which employ similar concepts, citing Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 (CEPU v ACCC) at [13]. Her Honour also cited Tabcorp Holdings Ltd v Victoria [2016] HCA 4; 328 ALR 375 at [65] for the proposition that the same concepts used within the same suite of statutory provisions should ordinarily be given a consistent meaning. 102 Further, s 76 of the CCA provides that the Court may impose pecuniary penalties for a contravention of provisions of Pt IV, including of s 45E, extending to, inter alia, conspiracies, attempts, accessories, inducement or attempted inducement, or otherwise being knowingly concerned in or a party to such a contravention.

The authorities 103 As the short background summary by the primary judge reproduced above indicates, the appellants' main case at trial was that the ACCC failed to prove its case at the relatively fundamental level of proving the formation of an agreement or understanding, especially as to state of mind. While there are some key points of difference as to what is necessary to be established to prove the existence of a proscribed arrangement or understanding, the principles summarised by the primary judge did not appear to be in dispute, as opposed to what should be made of them in the present context and how they should be applied. In some respects, the reasoning of her Honour as to the approach required by prior authority will require closer consideration, but the framework of principle outlined is a useful and valuable starting point. 104 It is therefore convenient to reproduce the primary judge's detailed summary of the relevant legal principles in order to frame the debate and better understand the context for her Honour's reasoning in finding that the ACCC had proved, inferentially, the existence of the alleged proscribed arrangement or understanding (emphasis in original): [320] The CFMEU cited the decision of Gordon J (as her Honour then was) in Norcast S.ár.L v Bradken (No 2) (2013) 219 FCR 14; [2013] FCA 235 at [263] which contained this helpful statement of the relevant legal principles in relation to the concept of arrangement or understanding: The relevant applicable legal principles may be summarised as follows: 1. an arrangement or understanding is apt to describe something less than a binding contract or agreement: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [75]; see also Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 (Privy Council) cited with approval in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 290-291; 5 ALR 465 at 469; 2. the elements of an arrangement or understanding are: 2.1 evidence of a consensus or meeting of the minds of the parties, under which one party or both of them must assume an obligation or give an assurance or undertaking that it will act in a certain way which may not be enforceable at law: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 at [10] and the authorities cited; 2.2 a hope or mere expectation that as a matter of fact a party will act in a certain way is not itself sufficient to establish an arrangement or understanding, even if it has been engendered by that party: ACCC v CFMEU at [10] and the authorities cited including Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45] and Rural Press Ltd v Australian Competition and Consumer Commission (2002) 118 FCR 236 at [79]; 2.3 the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligations: ACCC v CFMEU at [10] and the authorities cited; 2.4 in relation to whether or not mutual obligation is a necessary ingredient of an arrangement or understanding, it has been suggested that it is difficult to envisage circumstances that would be an understanding within s 45 of the TPA involving the commitment by one party without some reciprocal obligation by the other party: Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230-231 and 238. That statement applies equally to ss 44ZZRJ and 44ZZRK of the CCA; 2.5 an arrangement may be informal as well as unenforceable with the parties free to withdraw from it or to act inconsistently with it, notwithstanding their adoption of it: Federal Commissioner of Taxation v Lutovi Investments Pty Ltd (1978) 140 CLR 434 at 444; 3. whether there is a difference between an arrangement and an understanding has not been resolved: Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 at 22-26 but cf Australian Competition and Consumer Commission v Australian Medical Association WA Branch Inc (2003) 199 ALR 423 at 460. However, the concept of an understanding is broad and flexible: cf L Grollo & Company Pty Ltd v Nu-Statt Decorating Pty Ltd (1978) 34 FLR 81 at 89 and Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2004) 141 FCR 183 at [54]; 4. whether or not an arrangement or understanding has been reached will depend on the view formed of all of the circumstances. A meeting of minds may be proved by independent facts and from inferences drawn from primary facts including, without limitation, evidence of joint action by the parties in relation to relevant matters, evidence of parallel conduct and evidence of collusion between the parties. As Isaacs J said in R v Associated Northern Collieries (1911) 14 CLR 387 at 400: Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him 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. See also News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 573-574. (emphasis added) [321] In Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291, Smithers J observed that: … Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of … the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act. [322] This statement was cited with approval by Finn J in Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 at [10]. [323] Just as contractual assent may be inferred from conduct, so too may the adoption or consensual nature of an arrangement or understanding: see CEPU v ACCC at [136] (Weinberg, Bennett and Rares JJ) in which the Full Court observed that: 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… 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. [324] An arrangement or understanding which is inferred from conduct is not qualitatively different from one that is proved by direct evidence. The difference is in the method of proof. The nature of a circumstantial case is such that the Court can consider the whole of the evidence in arriving at a decision on any fact or facts: CEPU v ACCC at [143] (Weinberg, Bennett and Rares JJ). [325] As stated in Norcast v Bradken at [264], "where proof of an arrangement or understanding rests on inferences to be drawn from primary facts, it is not sufficient for the circumstances to give rise to conflicting inferences of equal degrees of probability". [326] In Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] ATPR 42-540; [2017] FCA 222 at [478], Beach J observed that: … as to the question of proof, an inference that an arrangement or understanding existed may be drawn from circumstantial evidence that the conduct of the parties exhibits "a concurrence of time, character, direction and result" (R v Associated Northern Collieries (1911) 14 CLR 387 at 400)… the existence of a motive is a matter that can be taken into account in assessing whether an arrangement or understanding was entered into by parties. [327] In Australian Competition and Consumer Commission v Air New Zealand Limited (2014) 319 ALR 388; [2014] FCA 1157 at [463], Perram J stated that: In cases where direct evidence is not available, the proof of a collusive understanding needs must be circumstantial. Pausing there, it is important to note that there is nothing inherently weak about cases based on circumstantial evidence. In truth, the strength of any particular circumstantial case will be a function of the number of elements of which it consists and the corresponding unlikelihood of those elements happening for reasons other than as a result of the posited collusive behaviour. Just as with any case of circumstantial evidence, it is forlorn to seek to work out the significance of the individual elements. The circumstantial case's nature and its strength emerge organically from a consideration of it as a whole. Thus, the onus of proof is to be applied only at the end:… however, this does not mean that the court is prevented in the ordinary way from finding particular circumstances proved or not proved. Rather, what is meant is that the question of whether the inference, which it is said should be drawn, is to be asked holistically at the end of the process rather than it being asked whether the inference should be drawn from any individual circumstances. (emphasis added) [328] In Australian Competition and Consumer Commission v BlueScope Steel Limited (No 3) [2021] FCA 1147 at [64], O'Bryan J stated that: It is well established that the making of an arrangement or the arriving at an understanding may be proved by direct or circumstantial evidence. Direct evidence includes the content of communications passing between the parties to the alleged arrangement or understanding. Circumstantial evidence includes conduct consistent with the making or acting upon (giving effect to) the alleged arrangement or understanding. A wide range of evidence of communications and conduct may be admissible in proof of an arrangement or understanding. Not all communications need be between the alleged parties to the arrangement or understanding. As Perram J explained in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448 (at [25]-[26]): I do accept the principle invoked by the ACCC, namely: that one may prove an agreement or understanding between a group of people by proving behaviour of individual group members consistent with the existence of the agreement; that such behaviour may include evidence of what members of the group said to each other or even to third parties; and, that this use of conduct as circumstantial evidence of an agreement does not involve a hearsay use of the words used when some or all of the conduct relied upon consists of speech acts. This is straightforward … (emphasis added) [329] In terms of distinguishing between the two concepts, an "arrangement" connotes a consensual dealing lacking some of the essential elements that would otherwise make it a contract: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321; [2007] FCA 794 at [26] [(ACCC v Leahy)]. It need not be legally binding, but it must still involve commitment; that is, it must be at least morally binding: ACCC v Leahy at [37]. There must also be at least some express communication between the parties, although what is said may not, for the purposes of the law of contract, amount to offer and acceptance in a contractual sense: ACCC v Leahy at [26]; cited with approval in Australian Competition and Consumer Commission v Yazaki Corporation (No 2) (2015) 332 ALR 396; [2015] FCA 1304 at [47]. [330] The concept of an understanding is "broad and flexible": L Grollo & Co Pty Ltd v Nu-Statt Decorating Pty Ltd [1978] FCA 33; (1978) 34 FLR 81 at 89; ACCC v Olex at [477]; Norcast v Bradken at [263]; ACCC v Leahy at [27]. However broad and flexible an understanding might be, it must be a consensual dealing between parties: ACCC v Leahy at [28]. [331] Unlike an arrangement, an understanding can be tacit, in the sense that it can be arrived at by each party, either by words or acts, signifying an intention to act in a particular way in relation to a matter of concern to another party. In order to be a consensual dealing, however, an understanding must involve a meeting of minds: ACCC v Leahy at [29]. 105 The authority cited by the primary judge warrants some expansion for the purpose of assessing her Honour's inferential reasoning process under challenge, especially as to proof of a meeting of minds and all that entails. 106 Turning to the particular issue of an arrangement or understanding proscribed by the CCA, in Trade Practices Commission v Email Ltd (1980) 43 FLR 383, Lockhart J observed at 385: For there to be an arrangement or understanding there must be a meeting of the minds of those said to be parties to the arrangement or understanding. In some cases this may be inferred from circumstantial evidence. There must be a consensus as to what is to be done and not just a mere hope as to what might be done or happen. Independently held beliefs are not enough. 107 In the same vein, in Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) [1999] FCA 954; 92 FCR 375 (ACCC v CC), Lindgren J observed (original emphasis): [137] In Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286, a Full Court of this Court had to consider the expression "a contract, arrangement or understanding to the extent that it is in restraint of trade or commerce" in the then s 45(2)(b) of the Act. Smithers J at 291 referred to Newton and British Basic Slag and said of the expression "arrangement", that by parity of reasoning with British Basic Slag: "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." His Honour added (at 291): "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." … [141] The cases require that at least one party "assume an obligation" or give an "assurance" or "undertaking" that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough, even if it has been engendered by that party. In the present case, for example, each individual who attended the Meeting may have expected that as a matter of fact the others would return to their respective offices by car, or, to express the matter differently, each may have been expected by the others to act in that way. Each may even have "aroused" that expectation by things he said at the Meeting. But these factual expectations do not found an "understanding" in the sense in which the word is used in ss 45 and 45A. The conjunction of the word "understanding" with the words "agreement" and "arrangement" and the nature of the provisions show that something more is required. With respect, the first passage set out above from the judgment of Smithers J in Top Performance Motors, although addressing the term "arrangement", seems to me to describe appropriately that further necessary element of the "understanding" to which the provisions refer. 108 Beach J in Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222; [2017] ATPR 42-540 cited Email at 385 and ACCC v CC at [141] in support of the observations his Honour made at [478] that a "mere expectation in a non-normative sense or a hope that something might be done or happen or that a party will act in a particular way is not of itself sufficient to found an arrangement or understanding" and that there will be "no understanding where one party decides unilaterally to act in a particular way in response to a pricing manoeuvre by a competitor", a point equally apposite to a hoped-for, anticipated, or even expected unilateral capitulating response to a threat. 109 O'Bryan J in Australian Competition and Consumer Commission v BlueScope Steel Limited (No 5) [2022] FCA 1475 grappled with the distinction between an arrangement and an understanding. After quoting from the same passages of the judgment by Smithers J in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291 quoted by Lindgren J in ACCC v CC at [137] (reproduced above at [107]), his Honour observed: [106] The different language used by Smithers J to explain an "arrangement" and an "understanding" within the meaning of s 45 of the Act identifies a subtle but important point. By the use of three different words, contract, arrangement and understanding, Parliament has prohibited three forms of conduct that are considered to be harmful to competition and, thereby, the welfare of Australians (as per s 2 of the Act). Each of the three words should be given meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] per McHugh, Gummow, Kirby and Hayne JJ. While an arrangement is well described in terms of undertaking obligations or duties, albeit not legally enforceable, an understanding is more aptly described as arriving at a common mind (or consensus) as to a particular course to be followed. Cartel conduct is the antithesis of competitive conduct and, for that reason, is a criminal offence under the Act. Businesses tempted to engage in such conduct will rarely do so openly and will usually seek to do so through hidden or subtle communications with competitors which may take the form of words or conduct. If through such communications competitors arrive at a common mind as to the adoption of a particular course of business conduct that answers the description of a cartel provision, competition and the welfare of Australians will be harmed. It is consistent with the statutory text and purpose to describe such conduct as an understanding within the meaning of the Act. [107] In Nicholas Enterprises [Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 40 FLR 83], Fisher J referred to the above reasons of Smithers J with apparent approval (at 90). In the immediately preceding passage, Fisher J summarised the principles that emerged from Re British Basic Slag as follows (at 89): A significant feature of each of the above passages is the emphasis placed upon the necessity for each of the parties to have communicated with the other, for each to have raised an expectation in the mind of the other, and for each to have accepted an obligation qua the other. These are in my opinion the essential elements of the requisite meeting of minds. [108] Since those earliest decisions, different cases have used the expressions "meeting of minds", "arousing expectations", "assuming an obligation" or "giving an assurance" somewhat interchangeably. In ACCC v CC, Lindgren J explained that a mere expectation that, as a matter of fact, a party will act in a certain way is not sufficient to constitute an understanding within the meaning of the Act, even if the expectation has been engendered by conduct of that party (at [141]). It was in that context that his Honour said that what is required is that at least one party "assume an obligation" or give an "assurance" or "undertaking" that it will act in a certain way. Those observations of Lindgren J have been referred to with approval by the Full Court on many occasions, including in Rural Press at [79], Apco at [45] and Country Care at [60]. In Apco, the Full Federal Court used the word "hope" interchangeably with expectation, endorsing the proposition that "a mere hope or expectation that a party will act in a particular way is insufficient to constitute an 'understanding' " (at [47]). That proposition is not inconsistent with the description of an understanding given by Smithers J in Top Performance Motors. A meeting of minds as to a course of conduct to be followed by one or more persons cannot arise unless those persons have communicated their assent to adopting that course of conduct. It is important to emphasise, though, that in the context of an understanding containing an unlawful cartel provision, the assumption of an obligation means no more than the communication of assent to a particular course of conduct proposed by a competitor, where the communication may be by words or conduct. Language of obligation, commonly used in the law of contract, should not obscure the nature of an understanding and the means and circumstances in which it may be arrived at. (emphasis added) 110 The passage in bold was substantially repeated in BlueScope Steel at [147] in the course of O'Bryan J discussing the lesser requirements for an attempt: "It can be accepted that, for a consensus or meeting of minds to be finally arrived at, there must be some communication or indication of assent from one party to the other whether by words or by conduct". This puts to rest any suggestion that something less than this is required, especially in the preceding [146] at which his Honour observed: It follows from the judicial explication of the concept of an "understanding" that there is no requirement in law for one of the parties to have expressly sought a commitment from the other party to assume some obligation. An understanding may be reached through a course of dealings between the parties that makes clear the desired outcome and through which a meeting of minds on pursuing the outcome is achieved. A course of dealings between parties is capable of arousing an expectation in each party that they will conduct themselves in accordance with the communicated outcome. 111 The need identified by O'Bryan in BlueScope Steel in the emphasised sentence in [108] reproduced above, and substantially repeated at [147], for such a communication of assent was acknowledged by the primary judge at LJ[329] reproduced above, when her Honour observed that there must also be "at least some express communication between the parties, although what is said may not, for the purposes of the law of contract, amount to offer and acceptance in a contractual sense", citing Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304; 332 ALR 396 at [47] (in turn quoting with approval from Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd [2007] FCA 794; 160 FCR 321 at [26]). 112 It follows that merely succumbing to a threat will not, without more, be enough for the purposes of establishing a contravention of s 45E(3)(a), which logically precedes any further contravention by way of giving effect to such an arrangement or understanding contrary to s 45EA(1)(a); a meeting of minds or its equivalent is still required. In order for minds to meet, there must be knowledge or awareness or a like state of mind on both sides as to the subject of that meeting of the minds. Logically, that must be manifested in some kind of communication, the existence of which may be inferred if a sufficient basis exists to support that inference. The need for such a communication is most obvious when what is relied upon is otherwise no more than parallel or acquiescent conduct, which can never suffice on its own. The communication of assent to a course of conduct to be adopted by one or more parties to the agreement or understanding completes the arrangement or understanding upon that assent being communicated. Of course, implementation, by giving effect to such an arrangement or understanding, may never occur. 113 The primary judge made numerous references to this requirement of mutual knowledge or awareness arising from a communicated assent in citing or quoting authority referring to concepts such as consensus, community of purpose, mutual consent, and consensual dealing, amounting to a knowledge or subjective awareness of what was involved: see, for example, at LJ[320] and LJ[331], reproduced above at [104], and LJ[342]-[343] reproduced below at [114]. 114 The primary judge at LJ[342]-[343] quoted from the Full Court in CEPU v ACCC at [181]-[182] and [194]-[195], including the following extracts from [182] and [194]: [182] In our opinion s 45E(3) requires each party to the contract, arrangement or understanding to have had the subjective purpose, which the section proscribes, for including the impugned provision. … [194] The behaviour at which s 45E(3) typically strikes will be where the "first person" succumbs to an abuse of power by an organisation of employees and includes a proscribed provision not wanting to bring about the result, but appreciating that that is the end that will be achieved by doing so.

Factual dispute and findings 115 The dispute between the parties at trial largely turned on relatively narrow disputes about what the evidence established or was capable of establishing, and whether the thresholds for contravention in well-established authorities had been met. For some of the evidence that was adduced over objection, or was later objected to, a challenge over the admission of that evidence is maintained. As there was no direct evidence of the existence of an agreement or understanding, the nub of this core aspect of the challenge on appeal concerns the sufficiency of circumstantial evidence to ground an inferential basis for that finding, based on both the primary factual findings that were made, and challenging aspects of those findings. 116 Before turning to the factual circumstances as found by the primary judge, it is useful to know who the persons involved were in order to follow the narrative of events. The following are the key entities and individuals involved: J Hutchinson Pty Ltd Mr Greg Quinn, Managing Director Mr John Berlese, Team Leader Mr Peter Meland, Project Manager Mr Henk Thone, Site Manager (supervised by Mr Meland) Mr Damon Clarke, employee and CFMEU delegate on the Southpoint project Mr Raul Paez and Mr Lindsay Ashton, other employees of Hutchinson Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) Mr Justin Steele, union organiser Waterproofing Industries Qld Pty Ltd (WPI) Mr Raymond (Ray) Hadfield, director Mr Charlie Hadfield, son of Mr Raymond Hadfield Building Unions Superannuation Scheme Queensland (BUSSQ) Mr Dallas Ezzy, National Relationship Manager The Funds (BERT, CIPQ and BEWT) Mr John Shenfield, General Manager 117 The appellants contended, in substance, that the ACCC had not proven the necessary meeting of minds or equivalent to establish the existence of an agreement or understanding. The primary judge did not accept that was so. Her Honour found that on the whole of the evidence it had been proven: (a) that Hutchinson and the CFMEU had arrived at an arrangement or understanding containing a boycott provision to the effect that Hutchinson would no longer acquire waterproofing services from WPI at the Southport project and that the subcontract between Hutchinson and WPI to provide such services would be terminated; and (b) that this arrangement or understanding had been given effect to by Hutchinson by ceasing to acquire waterproofing services from WPI and terminating the subcontract. 118 In reaching the conclusion of contravention, the primary judge considered the evidence and competing submissions in detail, summarised the principles as reproduced above at [104], and resolved the dispute in favour of the ACCC as follows: [332] The ACCC contended that there was an arrangement or understanding containing a provision to the effect that Hutchinson would terminate the WPI subcontract or, further and alternatively, would no longer acquire waterproofing services from WPI at the Southpoint project. It submitted that the arrangement or understanding contained this provision because it was a matter forming part of the understanding between the parties within the meaning of s 4 of the Act. [333] The ACCC also contended that this arrangement or understanding arose in the context of WPI not having an EBA and a threat by the CFMEU that it would engage in industrial action if Hutchinson allowed WPI to come back onto the site of the Southpoint project. It contended that Hutchinson and the CFMEU understood that the incentive for Hutchinson to exclude WPI was to avoid conflict with, or industrial action by, the CFMEU. [334] In essence, it is submitted by the respondents that the exclusion of WPI from the site was more likely to have arisen in circumstances where the CFMEU delegate (Mr Clarke) discovered that WPI was not registered with the required employee funds and was therefore not otherwise paying its employees their required entitlements, that any issue raised by him and by Mr Steele with Mr Meland and Mr Thone would have been about this matter (which was never rectified) and that WPI was excluded from the site, and its subcontract terminated, because of Mr Meland's erroneous belief that WPI required an EBA before it could be a subcontractor at the Southpoint project. [335] Considered as a whole, the evidence establishes that Hutchinson and the CFMEU arrived at an arrangement or understanding containing a provision to the effect that Hutchinson would no longer acquire waterproofing services from WPI at the Southpoint project and, further, that the WPI subcontract would be terminated. [336] Such a finding arises from the facts and circumstances below which have "such a concurrence of time, character, direction and result as naturally to lead to the inference that [their] separate acts were [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", namely, that Hutchinson would no longer acquire waterproofing services from WPI at the Southpoint project and, further, that the WPI subcontract would be terminated. [337] Having regard to the required standard of proof and for the reasons below, the most probable explanation for the series of facts which occurred is that there was such an arrangement or understanding. Indeed, the case is a compelling one. [338] The facts and circumstances evidence parallel conduct by Hutchinson and the CFMEU by which they each took steps to exclude WPI from the site and then either prevented, or took no positive steps to allow, WPI to return to the site with the end result that Hutchinson ceased to acquire waterproofing services from WPI and terminated the WPI subcontract. Such parallel conduct can constitute circumstantial evidence from which an arrangement or understanding can be inferred: Trade Practices Commission v Email Ltd (1980) 31 ALR 53; Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162; [2006] FCA 1777 at [111]. [339] The evidence demonstrates that a consensus was reached between Hutchinson and the CFMEU pursuant to which they committed to a particular course of action, namely that WPI would not be allowed back on to the Southpoint site with the end result that Hutchinson would cease to acquire waterproofing services from WPI and, further, that Hutchinson would terminate the WPI subcontract. 119 The primary judge then listed a series of factual findings in 33 subparagraphs to LJ [340] supporting the conclusion that the necessary consensus had been reached, as follows: (1) in 2016 when WPI was engaged, Hutchinson was party to the 2015 EBA. Pursuant to clause 35.2 of the 2015 EBA, Hutchinson was obliged to consult with the CFMEU about the appointment of subcontractors in certain circumstances; (2) in 2016, the CFMEU (and Mr Steele) relied upon clause 35.2 of the 2015 EBA as a basis for effectively pushing that Hutchinson ought to retain subcontractors with EBAs; (3) prior to March 2016, a list of subcontractors which had an EBA was in Hutchinson's possession, being the 2014 List. It bore the CFMEU logo and was a list of subcontractors that had an EBA. It included a list of nine names under the subheading "Waterproofing". WPI's name was not included in that list; (4) Mr Berlese was a senior employee of Hutchinson. In the types of large projects which Mr Berlese undertook, he considered that there was a risk that, if Hutchinson engaged a non-EBA subcontractor, the CFMEU would object. In order to reduce the possibility of industrial disputation with the CFMEU, Mr Berlese chose only to use subcontractors that had an EBA. Mr Berlese had some regard to the 2014 List when choosing subcontractors; (5) a tender process was undertaken in 2015 which involved Mr Meland as well as Mr Ashton and Mr Paez. WPI, which did not have an EBA, was invited to tender along with other companies; (6) had Mr Berlese been aware that tenders were being sought from subcontractors which did not have an EBA, he would have intervened because he did not want any potential industrial relations issues with the CFMEU; (7) WPI submitted a quote for the waterproofing work at the Southpoint project which was reduced significantly after a meeting with employees of Hutchinson and the removal of certain items from the scope of work. At that meeting, WPI indicated that it would pay its workers the entitlements required to be paid under the 2015 EBA; (8) Mr Meland believed that subcontractors such as WPI needed to have an EBA on the basis that it was a requirement of the 2015 EBA. Although incorrect, such a belief was consistent with (and likely encouraged by) Mr Berlese's own conduct in preferring subcontractors that had an EBA; (9) at some stage, Mr Meland informed Mr Raymond Hadfield of WPI that he would need to get an EBA. WPI was willing to get an EBA and took steps to try and get one, but without success; (10) on 2 March 2016, a new list of subcontractors which had an EBA was issued, being the 2016 List. The 2016 List also did not include WPI but now included Spanos in its list of waterproofers. Mr Berlese had some regard to the 2016 List when choosing subcontractors; (11) WPI entered a subcontract with Hutchinson on 22 March 2016 to perform waterproofing work at the Southpoint project; (12) WPI performed some work on the Southpoint site in April and May 2016; (13) Mr Steele and Mr Clarke were informed of the engagement of WPI in May 2016. At that time, Mr Steele knew that WPI did not have an EBA, and had prior involvement with them on another project in which a complaint had been made that WPI had not paid the superannuation entitlements of its employees (although this issue was rectified); (14) there had been no consultation by Hutchinson with Mr Steele, the CFMEU organiser at the Southpoint project, or Mr Clarke, the CFMEU delegate, prior to the engagement of WPI. Mr Steele believed that there had not been any consultation with the CFMEU at all; (15) in the second half of May 2016, being after Mr Clarke commenced work on the Southpoint site, the CFMEU raised an issue concerning WPI, being that it was not registered with all of the required funds for the purposes of paying employee entitlements. By 28 May 2016, WPI was registered with all of the required funds but had not made any contributions; (16) in late May 2016 or June 2016, Mr Steele had a meeting with Mr Berlese during which Mr Steele raised the fact that WPI had been retained without the CFMEU being consulted, and also raised the fact that WPI did not have an EBA. If it was the case that WPI had an EBA, Mr Steele would not have complained to Mr Berlese; (17) having regard to the matters set out in (2), (3), (4), (6), (10) and (16) above, I infer that the subcontract with WPI would not have been entered by Hutchinson (or WPI retained to perform waterproofing work on the Southpoint site) had the CFMEU been consulted prior to its engagement, even though its tender was the one which was preferred by Mr Meland and Mr Ashton; (18) on 11 June 2016, Mr Clarke, the CFMEU delegate, approached Mr Meland, Hutchinson's project manager, about WPI being on site. Mr Clarke told Mr Meland that he was under strict instructions from Mr Steele to "sit the job down if WPI come on site". That is, the CFMEU threatened to engage in industrial action at the Southpoint site if WPI was permitted by Hutchinson to come back onto the Southpoint site; (19) during their conversation on 11 June 2016, Mr Meland and Mr Clarke also discussed that the reason that WPI was not allowed back on site was because it did not have an "EBA" (that is, an enterprise bargaining agreement which was covered by the CFMEU); (20) Mr Meland informed Mr Berlese and Mr Thone, the site manager, of this conversation by email on 13 June 2016. The email informed Mr Berlese and Mr Thone of the threat of industrial action by the CFMEU, being the thing which Mr Berlese had sought to avoid by engaging in a practice of appointing subcontractors which had an EBA; (21) the terms of the 13 June email make plain that it was Mr Meland's understanding that the main problem for WPI was that it was not going to get an EBA while it remained unregistered with the various funds and "Hopefully it will be better for him having registered". By this email, Mr Berlese was informed that WPI did not have, but was seeking to obtain, an EBA. Further, the words in the email demonstrate that it was Mr Meland's view that WPI was being excluded from the site because it did not have an EBA, which is consistent with him having had a discussion with Mr Clarke to that effect; (22) although it became registered with the funds, WPI did not work again on the Southpoint project after 11 June 2016. There is no evidence that anyone from Hutchinson or the CFMEU ever advised WPI that the reason for its continued exclusion from the site was that payments had not been made for the work performed by Mr Charlie Hadfield in April and May 2019. It is apparent from the evidence at the trial, including that set out below, that WPI was keen to resume work. Had the true issue been that payments were outstanding, this is something which could have been conveyed by Mr Steele or Mr Clarke to WPI (or they could have informed Mr Thone or Mr Meland or even Mr Berlese of this and asked for this message to be conveyed) but there is no evidence that this occurred. This is a further indication that the non-registration with the funds and the non-payment into the funds was not the real reason that WPI was not being allowed on the site by Hutchinson and the CFMEU; (23) Mr Meland took steps to assist WPI to obtain an EBA because he believed that, if one was obtained, WPI would be allowed back on site. However, that was his reaction to a situation where WPI was being excluded from the site by the concurrent actions of Hutchinson and the CFMEU. Mr Meland was attempting to find a solution to this problem. He was not the cause of it; (24) as part of attempting to find a solution, Mr Meland spoke to Mr Steele about why WPI could not get an EBA. Mr Steele said words to the effect that, "Ray (referring to the director of WPI) won't be doing your waterproofing, he won't be able to get an EBA". He also said words to the effect, "Why don't you use someone like Spanos, they've got an EBA, they look after their boys". Mr Steele did not respond and say, for example, "WPI won't be doing your waterproofing until they pay their employees their entitlements" or "WPI won't be doing your waterproofing until they are registered with the funds" being something which it would be expected that he would have said if that was the real issue which the CFMEU had. Nor did Mr Steele say, for example, "WPI don't need to get an EBA. All they need to do is register with the funds and pay their workers properly". Rather, his statement was a definitive one in circumstances where he knew there was a subcontract with WPI - "WPI won't be doing your waterproofing". This statement is a strong indication that there was already an arrangement or understanding between the respondents that Hutchinson would no longer acquire waterproofing services from WPI at the Southpoint project and that, in circumstances where both the CFMEU and Hutchinson knew that WPI had entered a subcontract with WPI, that the WPI subcontract would be terminated; [emphasis added] (25) in particular, the statements by Mr Steele to Mr Meland were a "manifestation of mutual consent to carry out a common purpose", such purpose being that Hutchinson would no longer acquire waterproofing services from WPI at the Southpoint project and would terminate the WPI subcontract. Further, his statements are inconsistent with the CFMEU only having an issue with non-registration with funds or non-payment into those funds; (26) the statement by Mr Steele to the effect that WPI "won't be able to get an EBA" and "Why don't you use someone like Spanos, they've got an EBA" supports a finding that the motive for the arrangement or understanding between Hutchinson and the CFMEU was to return to a situation where, as a general rule, subcontractors engaged by Hutchinson at the Southpoint project would have an EBA, being something the CFMEU pressured Hutchinson to do and which Hutchinson (through Mr Berlese) did to avoid industrial action; (27) on around 21 June 2016, WPI was informed by Mr Clarke that it needed to call Mr Scott Vink, a CFMEU representative, to "get a go ahead with work". Mr Vink was not able to be contacted until 4 July 2016 and so Mr Clarke told WPI to speak to Mr Steele to get confirmation from him, but after a number of telephone calls, Mr Steele could not be contacted. Mr Meland was informed of these facts by email. The conduct by the CFMEU (and indirectly by Hutchinson, through Mr Clarke) in requiring WPI to contact Mr Vink and then Mr Steele to enable it to resume work on the site, and then not returning WPI's calls, is a "manifestation of mutual consent to carry out a common purpose", such purpose being that Hutchinson would no longer acquire waterproofing services from WPI at the Southpoint project, and would terminate the WPI subcontract. Further, such conduct is inconsistent with the CFMEU having an issue with non-registration with funds or non-payment into those funds, being something which Mr Clarke could have discussed with WPI (or would have discussed with Hutchinson) if that was the real issue, especially if he was the one who had discovered it as the CFMEU contends; (28) Mr Clarke told Mr Thone words to the effect that WPI was not allowed back on site and the reason for this was that it did not have an EBA. Mr Thone also spoke to Mr Meland about the issue of WPI not having an EBA; (29) on around 27 June 2016, Mr Meland referred the matter to the industrial relations team of Hutchinson to resolve. Nothing came of this referral and no evidence was adduced by Hutchinson to show what did happen including whether any contact was made with the CFMEU and what those communications were (which failure was not explained); (30) waterproofing work needed to be performed in the substation area on the Southpoint project in around July 2016. That work was delayed because WPI was not allowed on site. Mr Thone told Mr Meland that he needed a waterproofer. He spoke to him a number of times about this and asked him "get me the next person on the list". Hutchinson did not arrange for WPI to return to the site. Instead, Spanos was inducted onto the Southpoint site on 13 July 2016 and performed waterproofing work on the Southpoint project on 20 July 2016. Spanos had an EBA and was on the 2016 List; (31) on 13 July 2016 (being the same day that Spanos was inducted), Mr Raymond Hadfield, director of WPI, sent an email to the CFMEU at queries@qld.cfmeu.asn.au, with the subject line "Waterproofing Industries Qld Pty Ltd - URGENT", and which stated: Over the last month we have made numerous attempts to get in contact with both Justin Steele and Scott Vink and have been unsuccessful in regards to being forced to stop work at Hutchinson builders Southpoint A construction site. We have made all necessary steps to get this under control but keep getting pushed aside from department to department. We have made several attempts to get a meeting with Jade Ingham but haven't herd [sic] back from your office. This is an urgent matter as we are required to do work onsite. All our workers are financial with the CFMEU and all benefits such as BUSS, BERT, Cip-Q etc are paid for. If you can reply to this ASAP with some information regarding this that would be much appreciated. Also, if you can organise a meeting with Jade Ingham at the earliest possible time to discuss this as it is now having a major impact on work for our client. (32) there was no evidence adduced by the CFMEU that WPI received a response to this email, and its contents demonstrate that WPI was continuing to seek access to the site and the CFMEU was continuing to avoid communicating with WPI. This conduct by the CFMEU is another "manifestation of mutual consent to carry out a common purpose", such purpose being that Hutchinson would no longer acquire waterproofing services from WPI at the Southpoint project and would terminate the WPI subcontract. Further, such conduct is inconsistent with the CFMEU having an issue with non-registration with funds or non-payment into those funds, being something which the CFMEU would have raised with WPI, or at least Hutchinson, if that was the real issue; (33) on around 19 July 2016, being more than a month after WPI had been excluded from the site, Mr Meland spoke to Mr Berlese about terminating the WPI subcontract. Mr Berlese told him to "deal with it". There was no resistance by Mr Berlese to terminating the WPI subcontract. Indeed, I infer that Mr Berlese intended that Mr Meland should terminate the WPI subcontract. Hutchinson then terminated WPI's subcontract by letter dated 26 July 2016. This conduct is "manifestation of mutual consent to carry out a common purpose", such purpose being that Hutchinson would no longer acquire waterproofing services from WPI at the Southpoint project and would terminate the WPI subcontract. Further, the reason for the delay between the original date of WPI's exclusion from the site (11 June 2016) and the notification of the termination (26 July 2016) was because Mr Meland was not himself aware of the arrangement or understanding between Hutchinson and the CFMEU and was attempting to assist WPI to return to the site. Such delay does not mean that there was no arrangement or understanding. (emphasis added) 120 On the question of proof of the required proscribed purpose under s 45(3)(a) relied upon by the ACCC, the primary judge: (a) at LJ[342] and [343] quoted from CEPU v ACCC at [181]-[182] and [194]-[195], as follows: In CEPU v ACCC, the Full Court stated at [181]-[182] that: … 'Purpose' in this context is '… the end sought to be accomplished … as distinct from the reason for seeking that end (motive) …' (South Sydney 215 CLR at 563 at [18]; approved in Rural Press Ltd v Australian Competition and Consumer Competition (2003) 216 CLR 53 at [66] per Gummow, Hayne and Heydon JJ; Gleeson CJ and Callinan J agreeing at [3] and see per Kirby J at [112]). And, Gleeson CJ noted that the manifest effect of a provision in a contract may be the clearest indication of its purpose. The court has to determine the end the parties had in view: that is, their subjective intentions (South Sydney 215 CLR at 563 at [18]) … In our opinion s 45E(3) requires each party to the contract, arrangement or understanding to have had the subjective purpose, which the section proscribes, for including the impugned provision. The opening words of s 45E(3) prohibit the "first person" from making a contract or arrangement or arriving at an understanding of the kind which the section then specifies. But the specification depends upon the bilateral conduct of the parties to include the provision. And because this conduct is bilateral, the subjective purpose with which each of the parties included it must be one they both had. The section is intended to prohibit a combination between the first person and the union (or its officer) who include a provision in a contract, arrangement or understanding with a common purpose of achieving an end of hindering or preventing the first person acquiring services from the second person. The Full Court stated at [194]-[195] that: …If, as a matter of common sense, one of the purposes for which a provision is included is proscribed by the section, even if it is not dominant or substantial, it enlivens the operation of the section… The behaviour at which s 45E(3) typically strikes will be where the "first person" succumbs to an abuse of power by an organisation of employees and includes a proscribed provision not wanting to bring about the result, but appreciating that that is the end that will be achieved by doing so. Nonetheless, as a matter of common sense, a purpose of including the provision will be to achieve that which the union wishes to have achieved, however reluctantly the first person may be acting. A construction of the section which required that the "first person" have an "operative" subjective purpose adds a requirement which the legislation, on its face, does not contain. There is no need for the purpose to be a dominant one. It is sufficient that a purpose exists and it is to achieve one of the ends which the "first person" and the union or its official seeks. (b) accepted the ACCC's submission that the purpose is measured by the end or effect that was sought to be achieved by the boycott provision itself; and (c) accepted Hutchinson's submission that such a purpose may be inferred from statements and actions understood in light of common experience, citing Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (No 2) [2008] FCAFC 141; 170 FCR 16 at [329] and Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2018] FCAFC 78; 356 ALR 582 at [470]. 121 The primary judge also noted that the purpose of a wider strategy may be relevant in determining the purpose of conduct as part of that strategy, quoting Olex at [494]. 122 The primary judge concluded: [347] In this case, having regard to the factual findings in these reasons, I find that the effect of the provision of the arrangement or understanding between Hutchinson and the CFMEU was that Hutchinson would cease to acquire waterproofing services from WPI, and would terminate the WPI subcontract, and that this was also their subjective purpose of including that provision. That conclusion is reached based upon my findings as to the nature of the arrangement or understanding between the respondents, the circumstances in which it was made and its likely effect. [348] Further, I infer from the factual findings in these reasons, including (in particular) the practices of the respondents in relation to the engagement of subcontractors by Hutchinson which existed prior to the engagement of WPI, that the respondents' conduct in relation to WPI was part of a wider strategy, the purpose of which was to seek to cause Hutchinson to engage subcontractors which had an EBA on the Southpoint site. That wider strategy, coupled with the fact that WPI was replaced by Spanos (which did have an EBA), reinforces my finding that the end result which was sought to be accomplished by the respondents was that Hutchinson would cease to acquire waterproofing services from WPI, which was a subcontractor which did not have an EBA, and would terminate the WPI subcontract in circumstances where the respondents knew that the subcontract had been entered and termination of that subcontract was the most likely, if not inevitable, result. [349] Such a purpose is a proscribed purpose in that it prevented or hindered Hutchinson from continuing to acquire services from WPI within the meaning of s 45E(3)(a) of the Act. 123 The primary judge found that the facts as found established that: (a) Hutchinson both: (i) made an arrangement or arrived at an understanding with the CFMEU containing a provision to the effect that Hutchinson would no longer acquire waterproofing services from WPI at the Southpoint project and would terminate the WPI subcontract, which provision would prevent or hinder Hutchinson from acquiring or continuing to acquire services from WPI; and (ii) by ceasing to acquire waterproofing services from WPI, and further by terminating the WPI subcontract, gave effect to that arrangement or understanding; and (b) the CFMEU as a matter of inference knew that the WPI subcontract had been entered into and, by its conduct, it joined with Hutchinson in preventing WPI from entering the site and performing work pursuant to it, with the termination of the WPI subcontract by Hutchinson being the most likely, if not inevitable, culmination of the concurrent conduct engaged in by Hutchinson and the CFMEU, actual knowledge on the part of the CFMEU being the overwhelming inference having regard to all of the circumstances, such that the CFMEU both: (i) was knowingly concerned in, or party to the contravention by Hutchinson of ss 45E and 45EA of the CCA constituted by its making an arrangement or arriving at an understanding with the CFMEU; and (ii) induced Hutchinson's contraventions of ss 45E(3) and 45EA of the CCA by threatening or implying that there would be conflict with, or industrial action by, the CFMEU if Hutchinson did not cease using WPI.

APPEAL GROUNDS AND THE ACCC NOTICE OF CONTENTION 124 The Hutchinson and CFMEU notices of appeal and the ACCC notice of contention raise a total of 17 grounds. The structure of Hutchinson's notice of appeal is to divide its appeal case into two conceptually different approaches, the first taking the primary facts as found and asserting that they were an insufficient basis for the inferential finding that there had been a proscribed arrangement or understanding; and the second challenging the admission of certain evidence and taking issue with key findings of fact and credit, in order to vitiate the conclusions reached by removing part of the primary factual substratum for inferring the existence of the agreement or understanding. The ACCC, in response to the Hutchinson appeal, relies upon a notice of contention in substantially the same terms in each appeal. Those notices of contention are to the effect that the primary judge erred in finding that Mr Meland was not aware of the arrangement or understanding the primary judge found existed. 125 The CFMEU's notice of appeal challenges the primary judge's finding that the engagement of WPI was not a breach of cl 35.2 of the 2015 EBA as being a complete answer to the case brought against it, and in the alternative challenging certain aspects of the factual basis for the contraventions being found involving its officers, in substance adopting aspects of Hutchinson's appeal grounds as to insufficiency of evidence. Separately, and only if no aspect of its liability appeal succeeds so as to preclude a conclusion of contravention, the CFMEU challenges the penalty imposed, both as to taking into account irrelevant considerations and as to manifest excess. 126 Most of the main issues which arise can be grouped by category as follows, noting that some of the issues overlap and that each involves a series of separate arguments: (a) Whether the primary judge erred in finding there was an arrangement or understanding between Hutchinson and the CFMEU (Hutchinson grounds 1, 3, 4 and 5; CFMEU grounds 3 and 4). (b) Whether it was open for the primary judge to find that the real issue between Hutchinson and the CFMEU was that WPI did not have an EBA with the CFMEU (Hutchinson ground 2; CFMEU ground 1; ACCC notices of contention). (c) Whether the primary judge erred in making findings of fact and credit which were inconsistent with or against the weight of the evidence (Hutchinson grounds 6-9; CFMEU ground 2). (d) Whether the primary judge's decision on penalty was infected by error (CFMEU grounds 5-7).

Finding an arrangement or understanding 127 This category of the appeal grounds (explicitly for the Hutchinson appeal and adopted for the CFMEU appeal) can be divided into: (a) grounds accepting the correctness of the substratum of facts from which the inference of an agreement or understanding was drawn; and (b) grounds challenging some of the substratum facts. The latter is overtly only relied upon if the former does not succeed. 128 A central issue at the trial, and maintained on appeal, was whether the evidence that the ACCC relied upon was sufficient to support the inference that, on the balance of probabilities, a proscribed arrangement had been arrived at, or a proscribed understanding reached, having regard to the quality of evidence required by s 140(2) of the Evidence Act 1995 (Cth) to reach as serious a conclusion as that. The key issue in dispute concerns the sufficiency of the evidence to establish the necessary state of mind for there to be such an unlawful arrangement or understanding. That state of mind, as referred to in the authorities discussed above, can be generically described as a meeting of the minds. That term embraces other ways in which this concept may be expressed, such as a consensus or a common purpose, or, especially in this case, assent to a course of action as a relevant kind of commitment to that taking place. 129 The first aspect of the appeals by which the factual findings by the primary judge are not challenged does not turn on any evidentiary evaluation for which her Honour enjoyed any advantage. Hutchinson's primary case, upon which CFMEU also relies, is that the factual findings did not rise any higher than proving parallel conduct. That parallel conduct being demands by the CFMEU that Hutchinson not use WPI, accompanied by threats of industrial action if those demands were not met on the one hand, and Hutchinson deciding not to use WPI, culminating in the termination of the subcontract between Hutchinson and WPI on the other. Hutchinson's secondary case, again also relied upon by the CFMEU, is that a number of key factual findings should not stand, with the effect that an inference of the existence of an agreement or understanding is not able to be drawn on what is left. 130 The ACCC's case on appeal, while principally contending that there was sufficient evidence on the facts as found by the primary judge to support the finding of an arrangement or understanding, has two additional limbs: (a) seeking an additional factual finding based upon identical notices of contention in the two appeals to the effect that the primary judge erred in concluding that Mr Meland was not aware of the arrangement or understanding so as to be an alternative means of fixing Hutchinson with the necessary state of mind (which does not address the CFMEU's state of mind and the appellants' case for that not being able to be established on the evidence); and (b) defending the findings that are challenged by the alternative appeal case, if that is reached. 131 At the outset, it is worth recording several important points of common ground. 132 First, it is accepted that the individuals representing or acting on behalf of the two parties as relevant to the existence of the arrangement or understanding found by the primary judge, were four men. On the Hutchinson side, it was senior officers Mr Meland and Mr Berlese; and on the CFMEU side, the union delegate, Mr Clarke, and the union organiser, Mr Steele. On appeal, the ACCC principally relies upon the findings the primary judge made about Mr Berlese on the Hutchinson side in light of the findings made by her Honour about Mr Meland not knowing about the arrangement or understanding. However, as noted above, the ACCC challenges this conclusion by its notices of contention. Importantly, the primary judge did not believe the denials of these four men of there being any arrangement or understanding between Hutchinson and the CFMEU, noting that such a denial is not of itself evidence from which an inference of its existence can be based. 133 Secondly, there was no direct evidence of the proscribed arrangement or understanding alleged by the ACCC. Its existence was denied by all four men. The case for the existence of the arrangement or understanding was at all times circumstantial, which is not of itself unusual for cases involving allegations of illegality. It is uncontroversial to observe that in litigation, a necessary state of mind is frequently sought to be established by circumstantial evidence, including by drawing inferences from what is proven to have been said and done; and that in civil cases, no matter how serious, that must only be the most probable conclusion to reach, albeit by evidence of sufficient quality for the seriousness of what is being alleged. The dispute in this case was and is largely evaluative rather than reflecting any real dispute as to the applicable principles, with some nuanced differences as to how those principles should be applied in all the circumstances. 134 Thirdly, the primary judge found that that the arrangement or understanding had been reached on or about 11 June 2016, being the date from which WPI was excluded from the site and did not return, with the termination of the subcontract between Hutchinson and WPI taking place over six weeks later by a letter signed by Mr Meland dated 26 July 2016 and handed by him to Mr Ray Hadfield at a meeting. This termination was a week or so after the conversation between Mr Meland and Mr Berlese on or about 19 July 2016, during which the two men discussed terminating the subcontract between Hutchinson and WPI, and Mr Berlese told Mr Meland to "deal with it". The timing of the existence of the arrangement or understanding is not challenged by the ACCC. It is only challenged by the appellants in relation to the existence of the arrangement or understanding, rather than as to the timing of the exclusion by which time the arrangement or understanding was found to have come into existence. That timing is embraced by the appellants so as to limit the last date of conduct from which an inference of an arrangement or understanding could be drawn to the period prior to that date. Of course, later conduct by words or acts may still be relied upon in a more limited way to support an inference that the arrangement or understanding already existed. 135 Fourthly, it is not in doubt that all of the ultimate factual findings upon which the inference of the existence of the arrangement or understanding was drawn, including in particular as to the necessary state of mind element of assent, are contained in the 33 subparagraphs of LJ[340], informed by the earlier paragraphs in which the evidence giving rise to those findings is considered and evaluated. Most of those findings are not challenged. The relatively few that are challenged only arise for consideration if the appeals do not succeed on the facts as found, in conjunction with any positive conclusion reached on the ACCC's notices of contention contesting the conclusion as to absence of knowledge of the arrangement or understanding on the part of Mr Meland, because of the primary judge's finding at LJ[340(33)] that Mr Meland was "not himself aware of the arrangement or understanding between Hutchinson and the CFMEU and was attempting to assist WPI to return to the site". 136 It is clear that the primary judge conducted a careful examination of the evidence. While aspects of this are challenged by the appellants, and an aspect is challenged by the ACCC's notices of contention, the primary case advanced in each appeal is that even with that analysis left intact, there simply was not enough evidence to enable it to be concluded that the most probable inference to draw was that the arrangement or understanding did exist. In this sense, the core dispute turns on what her Honour made of the evidence, and whether the limits of what could be found by inference based upon that evidence were exceeded. 137 The essence of Hutchinson's primary argument, directed to its side of the arrangement or understanding as found by the primary judge, was that, on the ACCC's case, it was only Mr Berlese and/or Mr Meland who were the relevant representatives of the company for the purposes of the contravention alleged. It follows, on that argument, that Hutchinson could not have made its side of any arrangement or reached its side of any understanding via Mr Meland, because the requisite state of mind on his part to constitute a meeting of minds was absent. That left only Mr Berlese, but her Honour made no finding that he was aware of any boycott provision, and no other factual finding that was made was capable of supporting such a conclusion. Nor did her Honour make any finding that Mr Berlese directed Mr Meland to terminate the subcontract with WPI, although some weight was placed on the more ambiguous direction that he gave to Mr Meland to "deal with it", after Mr Meland spoke to Mr Berlese about terminating that subcontract: LJ[240(33)]. Rather, her Honour found there was no resistance by Mr Berlese to terminating the WPI subcontract, and her Honour inferred, from those words in the context in which they were uttered, that this was what he intended that Mr Meland should do, which was then found by her Honour to be conduct manifesting mutual consent to carry out the common purpose to that effect. Of course, there could not be any giving of effect to the arrangement or understanding unless the finding of its existence was free of vitiating error. 138 Hutchinson similarly argues that, on the CFMEU side, there was no finding that either Mr Steele or Mr Clarke urged Mr Meland to terminate the subcontract by reference to any alleged arrangement or understanding, albeit that this was effectively the conclusion reached by the primary judge at LJ[340], subparagraphs (18) and (24). 139 Hutchinson (and thus also the CFMEU) also rely upon the lack of any finding by the primary judge as to any occasion or opportunity for these four men to have reached the alleged arrangement or understanding on the two sides, with all four having given evidence, and none of them being asked any question on the topic of regarding themselves as being under any duty or like concept, whether moral or legal, to conduct himself in any particular way in relation to WPI. 140 The dominant reason why Hutchinson (and thus also the CFMEU) argue on appeal that there was insufficient evidence to support as the better inference that there had been an arrangement or understanding was the mental element of a meeting of the minds. This was also referred to in the authorities discussed above as a common mind or consensus, involving a commitment to act in a particular way, which required, at a minimum, a proper and sufficient basis for a finding of some express communication taking place between the parties so as to take the conduct beyond merely the parallel of the CFMEU wanting the subcontract with WPI to continue, and Hutchinson unilaterally succumbing to that outcome. 141 Condensed to its essence, the appellants ran a case at trial, and a case on appeal, of at best intractable neutrality on the inferences available to be drawn, upon the basis that an at least equally available sound inference was that of no more than parallel conduct by the demands of the CFMEU accompanied by threats and Hutchinson doing no more than succumbing to that industrial pressure being applied by the CFMEU. That is, it was not enough that an inference of the alleged proscribed arrangement or understanding was among the conclusions that could be drawn, but that it had to be an inference that was stronger than the relevantly benign inference of mere parallel conduct. The balance had to tip in favour of the ACCC's case. 142 The ACCC stance is starkly different in defending the conclusions reached by the primary judge. It characterises Hutchinson's case on appeal as being little more than a complaint about insufficient precision as to the formation of the arrangement or understanding as alleged and found to have been established, and describing the primary judge's fact finding as orthodox. The ACCC's response to the appeals on this issue of there being a sufficient basis for the inference being drawn by her Honour of the existence of an arrangement or understanding at its core relies upon: (a) the legally unremarkable proposition that just as contractual assent may be inferred, so too may the adoption of an arrangement or understanding, pointing to the proximity in time between the CFMEU's threat to "sit the job down" and the exclusion of WPI from the site, characterising that conduct and the reason for it as being apparent to the CFMEU as confirmed by Mr Clarke's subsequent statement to Mr Thone that WPI was not allowed back on site because it did not have an EBA; (b) the finding that Mr Meland was not aware of the arrangement or understanding, and that this finding did not involve any error in the inferential reasoning process was not fatal, while still relying on the notices of contention challenging this conclusion; (c) the challenge to the finding that Mr Clarke's conduct being able to manifest Hutchinson's consent to a common purpose because he was a delegate of the union was misplaced because the primary judge relied upon the company's conduct as being indirect through Mr Clarke, but even if that was erroneous it is inconsequential; (d) the submission about the ACCC not asking particular questions of the four men in cross-examination (Mr Meland, Mr Berlese, Mr Clarke and Mr Steele) not being able to assist the appellants because Mr Meland gave evidence of the CFMEU's threats in relation to the engagement of WPI, the termination of WPI's subcontract, and the fact that he felt that he had no choice but to terminate that contract, such that putting formulaic questions (implicitly of the Browne v Dunn variety) as suggested by Hutchinson was not necessary; and no adverse inference should be drawn for not putting to them that they agreed with propositions that were contrary to the thrust of their evidence; (e) it not being necessary for the ACCC to prove that any party considered themselves under any duty to act in any particular way in order to establish the existence of an arrangement or understanding, with Hutchinson being free to cross-examine on this topic if it wished to do so, given that an arrangement or understanding is, by its very nature, unenforceable and may be withdrawn or departed from; (f) the facts found by the primary judge at LJ[340] being sufficient to support the finding of an unlawful arrangement or understanding. 143 Hutchinson contends that knowledge (or an equivalent state of mind) is an essential element of making a proscribed contract, arrangement or understanding under s 45E of the CCA, and the primary judge's findings did not disclose that requisite knowledge. The thrust of Hutchinson's argument is that the existence of an arrangement or understanding proscribed by the CCA as alleged by the ACCC is conditional upon a meeting of minds by parties to an arrangement where each is understood as assuming at least a moral duty to conduct themselves in a particular way. These principles apply equally to s 45E, as acknowledged in the primary judge's reasons at LJ[281] as to consistency of meaning being given to the same concept in different provisions. That is, each party must be subjectively aware of what that person is doing, and must understand that they are reaching an understanding. That is conveyed through the very notion of consensus, which may be manifested by assent. There must be awareness of assuming an obligation, a proposition that holds true across the various proscribed commitments, be it a contract, arrangement or understanding. 144 Put another way, Hutchinson submits that the parties need to know what they are doing for their minds to meet, as made clear by Leahy Petroleum at [29], cited by the primary judge at LJ[331]. While the primary judge found at LJ[339] that a consensus was reached pursuant to which the CFMEU and Hutchinson committed to a particular course of action, a party simply cannot commit to do something without being aware of it being done, and this must be so under s 45E(3) in particular, which is confirmed by the distinctive state of the authorities concerning the subjective purpose of a provision under s 45E(3), such as CEPU v ACCC cited and quoted by the primary judge at LJ[342]. Hutchinson relies upon CEPU v ACCC, and refers particularly to [182], reproduced above at [120]. 145 Hutchinson submits that s 45E(3) requires each party to the contract, arrangement or understanding to have had the subjective purpose which the section prescribes. That can be distinguished from the position under s 45, where it may suffice, under the current state of authorities following Sackville J's decision in Seven Network Ltd v News Ltd [2007] FCA 1489; 244 ALR 374, for only one party to include the provision for a prescribed purpose. However, Hutchinson points out that matters are different under s 45E(3). One cannot have that relevant subjective purpose if one is unaware of the arrangement or understanding, and the extract from CEPU v ACCC at [182] reproduced at LJ[342] confirms that the other party must appreciate the end that will be achieved by doing so. A critical consequence of this contention is that it is not possible to infer from objective evidence that a person reached an understanding while also finding that the person was not aware of that fact, and hence, was not aware of the content of that provision. 146 Hutchinson cites R v Associated Northern Collieries (1911) 14 CLR 387 at 400, reproduced at LJ[320] as quoted in Norcast S.ár.L v Bradken Ltd (No 2) [2013] FCA 235; 219 FCR 14 at [263(4)]: see [104] above. Hutchinson submits that this extract from Associated Northern Collieries speaks of objective acts being a manifestation of mutual consent to carry out a common purpose, and that all of the notions described by Isaacs J predicate a subjective awareness of what is being undertaken. Hutchinson submits in reply that the correctness of this position can be seen in contrast with other distinguishable propositions: (a) First, it can be distinguished from the authorities that the ACCC cites in its written submissions, such as that of the Full Court in CEPU v ACCC, which is to the effect that conduct which s 45E captures often involves a person succumbing to an abuse of power and including a prescribed provision in an arrangement or understanding. That legal proposition is correct, but the circumstances it describes are predicated on the person whose will is overborne knowing that he or she is including a proscribed provision in an arrangement or understanding. (b) Secondly, it can be distinguished from the proposition that arrangements or understandings may be tacit or implicit, a notion relied upon by the ACCC in its written submissions. An understanding can be tacit, and it may arise without communication, but only so long as there is a meeting of the minds. (c) Thirdly, it can be distinguished from the requisite legal standard for giving effect to an arrangement or understanding under s 45 of the CCA: see Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243 at [77], where the Full Court found that "knowledge is not an essential element of the legal standard of 'give effect to' for the purposes of section 45(2)(b)". Hutchinson submits that, stepping back from the analysis in Yazaki, it is clear that one corporate or individual person could make a contract and later direct another person, corporate or individual, who does not know about the making of that contract, to carry it out in accordance with or pursuant to its provisions and that such a person would give to effect to it within the meaning of s 45(2)(b). But that is not so with respect to making an arrangement or reaching an understanding in the first place. That, Hutchinson submits, basally requires minds to be mutually directed at a common object and, hence, to be aware of it. 147 The thrust of Hutchinson's submission above must be accepted. It is not in doubt that knowledge or awareness, or an equivalent state of mind, on the part of a party making an arrangement or understanding is an essential element, and for a corporation that must come via a natural person having that state of mind on its behalf. The issue is whether, on the facts as found, an arrangement or understanding was capable of being found to exist on the available evidence. 148 The ACCC argue that there is no meaningful legal issue about "arrangement or understanding"; and that the fundamental factual question for the primary judge was why the contract with WPI was terminated. Because Hutchinson succumbed to threats from CFMEU, the ACCC submits, it follows that it can be inferred that there is an arrangement or understanding. The ACCC further submits that Hutchinson did not make a unilateral decision to terminate following the threat but rather there was still an arrangement or understanding because it acted under compulsion. Once Hutchinson succumbs to pressure, and assents to what is proposed by the CFMEU, there is an understanding between the two of them. That is, the CFMEU understands why it is that Hutchinson is doing this thing, and they understand what it is that the CFMEU wants Hutchinson to do. The ACCC assert that at this point it is an arrangement or understanding in taking a step for a particular reason, and there is a meeting of minds that this reason is why the step will occur. Then the step occurs. That is the arrangement or understanding. 149 In response to the proposition that more is needed than just "succumbing" to a demand in order to form a meeting of the minds, the ACCC contends that the meeting of the minds is a way of saying that there is an arrangement or understanding. The ACCC's argument is that there is a spectrum of consensual dealings, with the most formal being a contract and the most informal being an understanding. The latter can be arrived at tacitly, and without any direct communication. On this argument, if the CFMEU says, "terminate or we engage in industrial action", and Hutchinson terminates, at the point that they do so, they are doing it because that is the thing that they have been asked to do by the CFMEU for a specific reason, and they have come to an understanding about what their conduct is to be. Regarding when the understanding is formed, the ACCC argue that it happens either when there is a verbal consensus (i.e. Hutchinson say "okay we'll do that") or at the point when the conduct gives effect to the understanding. The ACCC submits that there is mutuality in this case, because the mutuality is the CFMEU putting forward a proposition, which is to not engage in industrial action if the termination occurs, with the flipside being that the CFMEU will engage in industrial action if the termination does not occur. In that sense, even if it were necessary to have mutuality for there to be an arrangement or an understanding, there is mutuality in this case, and that is why it is the same as the situation where one supplier says to another supplier, "If you do this, then I will do that". 150 During the course of argument on the appeal, the ACCC cited CEPU v ACCC at [194], reproduced above at [120], with an emphasis on the last sentence: "The behaviour at which s 45E(3) typically strikes will be where the 'first person' succumbs to an abuse of power by an organisation of employees and includes a proscribed provision not wanting to bring about the result, but appreciating that that is the end that will be achieved by doing so". In response to a proposition put by the Court to the effect that if someone does not know of the existence of an arrangement or understanding, they cannot be a person who brought that understanding into existence, the ACCC sought to distinguish between the act that might indicate the existence of the arrangement or understanding, and whether or not the arrangement or understanding exists. The ACCC's case as alleged in the concise statement was that there was an arrangement or understanding between Hutchinson and the CFMEU, not one based upon the particular state of knowledge of an individual working at either Hutchinson or the CFMEU, and in that way, it is modelled on the five ways in which this Court in CEPU v ACCC went about finding or making its findings about an arrangement or understanding. The ACCC submits that it can succeed in three different ways: (a) First, based on CEPU v ACCC at [146], by a reasoning process of inferring circumstantially that there is an arrangement or understanding between two organisations, and not premised on identifying the specific people within either of those organisations who had the relevant minds that met; (b) Secondly, specifically by reference to Mr Berlese, who had the necessary state of mind on behalf of Hutchinson, because the primary judge found that Mr Berlese knew about the threats, and directed termination by Mr Meland by saying "deal with it" (it should be noted that this submission was necessarily confined to the "giving effect" aspect of the ACCC's case, because this was said by Mr Berlese on or about 19 July 2016, some five weeks after the arrangement or understanding was found to have been brought into existence by 11 June 2016, following which WPI was excluded from the site); (c) Thirdly, by success on the notice of contention, allowing for reliance upon Mr Meland's knowledge of the arrangement or understanding, contrary to the finding by the primary judge that he did not know. 151 The ACCC distinguished Wigney J's observations in Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1450; 353 ALR 460 at [430]-[431], to the effect that the ACCC's case then was specifically that there was an arrangement or understanding arising from the intention of particular people, because its case in this matter was simply that the arrangement or understanding was one that arose by virtue of the threat being made by the CFMEU to engage in industrial action unless there was termination of the WPI subcontract. 152 The immediate problem with the ACCC's argument is that even if the CFMEU expected that Hutchinson would ultimately succumb and give in, that was simply an expectation, not a meeting of the minds between the two organisations. That is, even when the act or omission sought to be achieved, being the subject matter of the putative arrangement or understanding, is arrived at by a unilateral demand and the party to whom it is directed succumbs, that capitulation can be with or without the indispensable meeting of the minds by the communication of assent. If either is equally likely, no arrangement or understanding is established. 153 The ACCC cite BlueScope Steel at [102(c), (e), (f)], [105], [107], [108] and [145]‐[148], emphasising [146], and arguing that typically where there is an issue of whether an expectation arises, it is in cases where there is parallel pricing. The question is then whether there is an attempt to induce an arrangement or understanding, or is it just providing information and expecting that they will act on information, but not thinking that the parties will do something on the basis of consensus. In this case, if the CFMEU had just made a threat, and never asked about it again, and then Hutchinson later decided to stop using WPI, the ACCC could have real issues about whether there was an understanding. However, the ACCC contends that the expectation arises from consensus reached by the parties, the consensus being that if Hutchinson cease engaging WPI, CFMEU will not engage in industrial disputation; and if Hutchinson keeps using WPI, CFMEU will engage in disputation. This is said to amount to a consensus that Hutchinson will terminate because of the threat. The substance of this argument is that there has to be an inference drawn from conduct that there was a consensus that Hutchinson would act in that way, a proposition put to senior counsel for the ACCC, who agreed. On this argument, once it was apparent to CFMEU that Hutchinson would act in accordance with its threat, there was a consensus arising from communications that passed between them. 154 In reply, Hutchinson notes that the ACCC had accepted in argument that to have an understanding, what is necessary is that the parties each understand or reach a consensus that conduct will occur as a result of the consensus that they have reached; and developing this reasoning further, submit that the person who makes a contract (and thus makes an arrangement or reaches an understanding) needs to know they are doing so or they cannot make it (or arrive at it), and if they do not make it, they cannot give effect to it. 155 Hutchinson also agrees with the statement by the ACCC in argument that the fundamental factual question for the primary judge was why the subcontract with WPI was terminated, but say that the answer to that question must be that the conduct was pursuant to, or in fulfilment of, an arrangement or understanding, or else s 45E(3) is not engaged. Hutchinson contend that the burden of the ACCC's submissions was either in truth to deny the need for an understanding, or to assume its existence in this case. The ACCC had argued that if it is the case that the CFMEU were to say explicitly to Hutchinson, "terminate this contract or we will engage in industrial action", at the point in time at which Hutchinson terminates the contract, they are only doing so because that is the thing that they have been asked to do by the CFMEU for a specific reason, and they have come to an understanding about what their conduct is to be. Hutchinson contests the soundness of that reasoning by pointing out that a person can do something that someone demands for reasons wholly unrelated to that demand. The bare fact of a demand having been made, and action occurring that is consistent with the demand, is not enough to support an inference that the demand is the most likely reason that the person has acted in that way. Their actions could be the product of many things, such as being accidental, coincidental, unilateral, or something else. Similarly, the CFMEU may expect someone to do something, but that is not enough. Hutchinson submits that the law is clear that to engage s 45E, there must at least be an understanding. That understanding does not need to "map perfectly onto the statutory language", but the persons making it must know that there is an understanding which in fact has a provision which has a character of being proscribed. 156 Hutchinson submits that the ACCC assumed the existence of an understanding and asserted that it had come to an understanding with the CFMEU about what its conduct was to be. But it was necessary to ask how, when and through whom. Corporate persons act through individual persons who have minds. These things can be identified, and they should be when penalty provisions are involved. 157 Hutchinson submits that, contrary to the substance of the ACCC's argument, a unilateral act flowing from a threat is not, without more, an arrangement or understanding and cannot contravene s 45E; and that CEPU v ACCC does not stand for that proposition, and the submission to that effect is characterised by Hutchinson as both wrong and revealing. In that case, the CEPU made a demand. Meetings were then held within Edison (the energy company) to discuss whether to accede to that demand. The primary judge in CEPU v ACCC found that the discussion was to the effect that Edison would agree with the CEPU's demand that it would only engage electrical contractors. There was then a written communication by which Edison agreed to comply with that demand, and they wrote "we agree to the following position … Please indicate your acceptance of this position on behalf of the CEPU." The parties then entered into a memorandum of understanding (MOU). The trial judge in CEPU v ACCC (at [8]) found that the MOU gave effect to the arrangement previously reached in writing; and the Full Court records that Edison told DGN, a company that had long worked for them, that it would not be allowed to continue. Having regard to all of the facts, the precise date of the alleged arrangement there was known, unlike in this case. 158 Hutchinson submits that, following the reasoning in CEPU v ACCC at [141], there is a need to establish the existence of the arrangement or understanding, before turning to the nature and extent of participation (that is, giving effect). And following [194] in CEPU v ACCC, reproduced above at [120], succumbing to a threat is not enough; succumbing to such pressure in a manner which involves inclusion of a provision in an arrangement is what was required in this case to engage s 45E(3). That is, following [195], also reproduced above at [120], the necessary hinge is a provision in an understanding, which must exist. 159 Hutchinson submits that this Court should find that the termination of the WPI contract was not proven to be the outcome of any bilateral understanding between the CFMEU and Hutchinson. Rather, it was a result of a unilateral misunderstanding on the part of Mr Meland that WPI needed an EBA, and a result of his inability to resolve difficulties arising from WPI's non-payment of entitlements. Hutchinson submits that the ACCC's case that the CFMEU unconditionally knew that WPI would not come back onsite, if accepted, does not assist, but instead tells against the existence of any arrangement or understanding. As Hutchinson put it, the utility of an arrangement or understanding of the kind alleged in circumstances where the CFMEU and Hutchinson already knew that WPI would not return to the site would be greatly reduced, if not non-existent. Hutchinson submits that the CFMEU in saying WPI are not coming back on site is asserting a conclusion as to what should happen, not seeking an assurance. Hutchinson therefore submits that the evidence establishes no more than that the CFMEU made a threat and, in due course, Hutchinson terminated the WPI's subcontract in light of an expectation of industrial disputes. There was no established meeting of the minds in Hutchinson acting in light of the threat, even if the CFMEU expected this would occur. 160 Hutchinson relies upon BlueScope Steel at [146]‐[147], reproduced at [110] above, which states that conduct must be engaged in to give rise to an inference of assent, submitting that in this case there are no dealings from which assent or assurance can be concluded, contrary to the conclusion reached by the primary judge. Mr Berlese spoke to Mr Steele once, and never spoke to anyone from the CFMEU again. Thus, Hutchinson submits, he cannot have given assent through words or conduct. Mr Meland never communicated assent to anyone at the CFMEU. 161 Hutchinson takes issue with the primary judge at LJ[340(24)] referring to Mr Steele saying to Mr Meland "WPI won't be doing your waterproofing", and to other things that Mr Steele could have said but did not, such as tying this outcome to the non-payment of entitlements or to WPI's failure to register with industry superannuation funds, with her Honour treating this as a strong indication that there was already an arrangement or understanding. Hutchinson characterises this as no more than a statement of fact on the part of Mr Steele (perhaps better described as a statement of the demanded outcome), and not constituting seeking an assurance. Hutchinson submits that there is no other evidence identified by the primary judge capable of supporting any inference of any assurance or assent being given. Hutchinson submits that this is why the ACCC endeavoured to claim that the arrangement or understanding and its execution occurred at the same time. It should be noted that this is not what her Honour found had taken place, instead finding a five-week gap between the arrangement or understanding being reached and it being given effect to (the five weeks being measured up to the time between the "deal with it" direction Mr Berlese gave to Mr Meland on or about 19 July 2016 and the termination of the WPI subcontract on 26 July 2016). 162 The ACCC submits that Hutchinson says "mutuality" is not required for an arrangement or understanding, but Hutchinson submits that is not the point it makes. Hutchinson argues that there need not be mutuality in the sense of reciprocity of obligation. That is, there need not be a quid pro quo, although, as Perram J observed in Australian Competition and Consumer Commission v Air New Zealand Ltd [2014] FCA 1157; 319 ALR 388 at [463(2)], it is difficult to imagine such a case in practice (his Honour citing observations to that effect by Lockhart J in Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230-1). However, Hutchinson submits, there is a different question as to whether an arrangement requires mutuality in the sense of a meeting of minds, or two minds directed at the same topic, with the authorities being unequivocal that this is necessary. 163 Hutchinson refers to the cross-examination of Mr Meland and the fact that he was not re‐examined about any other discussions he may have had with Mr Berlese. Indeed, Mr Meland gave evidence about difficulty of getting in contact with Mr Berlese. Hutchinson noted the following important facts about the state of the evidence that was before the primary judge: (a) there was no express undertaking given by anyone by word or deed; (b) the existence of an express undertaking was not put to any witness, and hence there was no finding that any individual knew they were making an arrangement or reaching an understanding; (c) no assurances were tacitly or explicitly given by Hutchinson to the CFMEU; (d) there is nothing that can be construed as the giving of assent by the CFMEU as to what Hutchinson proposed to do; (e) instead, Mr Meland acted contrary to the alleged boycott provision (that is, the arrangement or understanding found to exist by 11 June 2016 for more than a month by trying to get WPI a CFMEU EBA); (f) the CFMEU never followed up with Mr Meland to see if he had terminated WPI; (g) Mr Berlese did not chase up Mr Meland to see if he had terminated WPI; and (h) Mr Meland did not confirm to Mr Berlese that he had terminated WPI, and instead irregularly signed the termination letter himself. 164 By way of additional argument on top of adopting Hutchinson's submissions, the CFMEU notes that the ACCC had accepted that a threat and acquiescence is not enough to establish an arrangement and understanding, effectively adopting Hutchinson's argument that the evidence established that no more than this was shown to have taken place. The CFMEU rely upon the reasoning and outcome in Keith Russell Simplicity Funerals Pty Ltd v Cremation Society of Australia (ACT) Ltd (1982) 40 ALR 125, an early secondary boycott injunction application case, in which Franki J said in refusing the injunctive relief: (a) at 127-8: The president of the union advised the manager of the applicant that the union had placed a ban on the applicant preventing it from using crematoria which he said was due to a breach of a union rule arising out of the use of non-union labour in removing a body from a nursing home. (b) at 128: It was argued for the respondents that all they had done was to make a commercial decision, not by way of making an arrangement or arriving at an understanding but by accepting the consequences they regarded as inevitable … At all times, the fourth and fifth respondents wished to continue to supply services to the applicant but, because of the ban, this became commercially impossible. (c) at 129: In my opinion, the respondents have simply responded in a commercial way to a union ban, and I do not consider that there is evidence of either the fourth or fifth respondent having made an arrangement or arrived at an understanding which contained a provision which was included for a prohibited purpose. 165 The CFMEU, supporting Hutchinson, submits that this is an acute example of the result for which it contends, and that this should be read together with CEPU v ACCC, which Hutchinson took the Court to in detail in reply as summarised above at [157]-[158] in demonstrating the distinction with the facts and circumstances that are presented here. That case involved a finding on the evidence that the CEPU was aware that Edison was agreeing to their demands. That is not what happened in this case. 166 CFMEU also submits that it was not proven that it had the requisite knowledge or state of mind in this matter. The ACCC relied upon the following evidence from Mr Steele to demonstrate his knowledge and, consequently, the knowledge of the union: You would have found out and been made aware of or directly inquired yourself as to whether or not WPI was staying on the site?---Yes, eventually. 167 But the CFMEU submits that it was not clear whether Mr Steele was answering the question as to whether he had found out, or whether he had been made aware, or whether he had directly inquired himself. The answer was not only "Yes", but, "Yes, eventually", with nothing to indicate whether that was in terms of days, weeks, months or even later. That statement does not demonstrate any knowledge of why WPI were not onsite or that Hutchinson had acceded to their demand. 168 The CFMEU also point out that the ACCC relied upon the evidence in cross-examination of Mr Clarke, where he said "There is plenty of ways to know who has been there and who has not", to say Mr Clarke understood that WPI were not there. This suffers from the same vice. It is not evidence that he knew why WPI was not there or evidence that he knew that Hutchinson had acceded to the demand alleged of the union. 169 The CFMEU outline the following chronology: (a) on 11 June 2016, Mr Clarke made the threat to sit the job down if WPI came on site; (b) Mr Steele said to Mr Meland on some unspecified date: "Ray is a dog, he won't be doing your waterproofing. Why don't you use someone else like Spanos?"; (c) after 21 June 2016, well after the primary judge found the arrangement or understanding came into existence, Mr Clarke spoke to Mr Thone; (d) on 26 July 2016, the WPI subcontract was terminated without reference to the CFMEU, with there being no evidence that the CFMEU was told at all. 170 On the concession that threat and acquiescence is not enough, the CFMEU submit that this chronology is fatal, and the evidence establishes no more than threat and acquiescence.

Consideration 171 The requirement to prove a state of mind as part of a meeting of minds is a concept that stretches back to the notion of an unlawful combination, discussed by Isaacs J as the trial judge in the High Court in Associated Northern Collieries at 400. His Honour referred to a need for proof of a community of purpose, including by inferring pre-concert, mutual contemporaneous engagement, or manifestations of mutual consent. That has formed part of competition law ever since and is not new or novel. But proof of state of mind in any context can be very difficult in the absence of a documentary record, insider evidence of a particular calibre, and/or surveillance evidence of some kind. It is most commonly achieved by circumstantial evidence leading to an inference being drawn on a proven substratum of facts. But while there is no need to meet the criminal law requirement of excluding all reasonable explanations consistent with innocence, there is no avoiding the need for the inferred conclusion being the most probable. Intractable neutrality will not suffice, as the authority discussed in some detail above makes clear. The focus on the importance of crossing this critical threshold is highlighted by the further authority discussed below at [173]. 172 As already outlined above, the dispute of most significance in these appeals is whether the factual findings made by the primary judge were sufficient to support the inference that her Honour drew that what had taken place went beyond Hutchinson succumbing to threats made by the CFMEU, engendering no more than an expectation that the subcontract with WPI would be terminated, and as a result its services not being used. Only that much would not constitute the necessary meeting of minds for the making or an arrangement or reaching an understanding that this would take place, and potentially as a separate result, its subsequent implementation. 173 The task confronting any judge in deciding whether serious wrongdoing in civil proceedings has been proven to have been engaged in was addressed in Luxton v Vines (1952) 85 CLR 352 at 358, where Dixon, Fullagar and Kitto JJ quoted with approval from the following passage in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, dealing also with inferential fact-finding in civil proceedings: Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley (1911) AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at p 678. (emphasis added) 174 The facts found from the evidence from which an inference of an agreement or understanding is drawn must support that inference to the point of proving, with the requisite quality of evidence for the serious civil penalty allegations in this case, that there was the necessary knowledge or awareness component on both sides of the asserted proscribed arrangement or understanding for the necessary meeting of minds. A shortfall on either side is fatal. It is in this context that Beach J's observations in Olex are valuable and should be adopted as an authoritative statement on the topic of what is needed for sound inferential fact finding in relation to proof of the existence of an arrangement or understanding: [478] Second, as to the question of proof, an inference that an arrangement or understanding existed may be drawn from circumstantial evidence that the conduct of the parties exhibits "a concurrence of time, character, direction and result" (R v Associated Northern Collieries (1911) 14 CLR 387 at 400). Where competitors meet without any apparent legitimate purpose, then this may assist in proving the existence of an arrangement or understanding. Further, the presence of parallel conduct may be evidence of an arrangement or understanding, but it is not sufficient in and of itself to reach a conclusion one way or the other. Further, economically irrational behaviour can be indicative of the presence of a cartel. Further, the existence of a motive is a matter that can be taken into account in assessing whether an arrangement or understanding was entered into by parties. [479] A finding may be made in the absence of direct evidence. All that is necessary is that the more probable inference from the circumstances that sufficiently appear by evidence, left unexplained, justifies the conclusion. "More probable" means no more than that upon the balance of probabilities, such an inference has a greater degree of likelihood. A party who relies on circumstantial evidence must show that the circumstances raise the more probable inference in favour of what is alleged. It is not sufficient that the circumstances give rise to conflicting inferences of an equal degree of probability or plausibility or that the choice between them can only be made by conjecture. I accept though that the process of inference may involve an intuitive element that is not susceptible to detailed support or explanation. [480] There is a distinction between inference and conjecture even if the reasoning process occurs on a continuum in which there is no bright line division (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [84] to [88]). A conjecture, even though plausible, is no more than a guess, whereas an inference is a deduction from the evidence. If the deduction is reasonable, the inference may rise to legal proof (Jones v Great Western Railway Co (1931) 144 LT 194 at 202). But there must be objective facts from which the inference could be drawn, otherwise what is left is mere speculation or conjecture (Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169 and 170 per Lord Wright). [481] Generally, the proper inference to be drawn on the balance of probabilities depends upon a practical and reasonable assessment of the evidence as a whole (BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268 at [51] per Pullin JA and Siegwerk Australia Pty Ltd (In liq) v Nuplex Industries (Aust) Pty Ltd (2016) 334 ALR 443; [2016] FCA 158 at [85] to [88] per Beach J). (emphasis added) 175 In this case, while the primary judge embarked upon a careful and thorough analysis of the evidence, and made a number of important factual findings, appellate review is readily able to be conducted to ascertain whether the ultimate inferences drawn had a sufficient basis on the facts as found to meet the necessary description of being the most probable. For the following reasons, it must be respectfully concluded that they were not. 176 The problem with the conclusions reached by the primary judge is that there is a shortfall in identified evidence to support the more probable explanation for the exclusion and termination of WPI being an arrangement or understanding containing a provision that this is what would take place. There may well be room for grave suspicion that this point was reached, but that will not suffice. The additional step had to be proven going beyond Hutchinson succumbing to CFMEU demands and threats to a mutual position being reached, in the context of Hutchinson having an established history of being highly averse to industrial confrontation. This required either direct evidence, which was absent, or a substratum of circumstantial evidence sufficient to support that as the better inference to draw. That substratum was lacking in a number of respects. 177 A central problem with the primary judge's reasoning is the absence of an isolation of a sufficient basis for an inference of assent that went beyond succumbing to the ongoing demands and even threats of the CFMEU, including practical impediments to WPI working on the site, sufficient to rise to the level of the more probable explanation being that the expectation was exceeded, and an agreement or understanding encompassing the proscribed provision being made or reached. Absent that, the alternative benign explanation of Hutchinson merely succumbing could not be displaced as being at least equally likely. There is no getting around the perennial problem for secondary boycott allegations of showing that what has occurred is more than the simple explanation of industrial muscle prevailing (for which there may or may not be remedies in industrial law). A tolerably clear case is needed to show that this line has been crossed, even though the necessary ultimate adverse conclusion can, in principle, be substantially or even entirely based on inferences drawn in a circumstantial case. In practice, however, excluding an equally probable benign explanation which is still based on malign conduct can be insurmountably difficult. The ACCC's evidentiary case ultimately rose no higher than demonstrating that the evidence supported this as a possible and plausible explanation for what had taken place, rather than being the most probable. The primary judge's efforts to find this to be the more probable explanation for what had occurred regrettably fell short of what was required. 178 The reasons for reaching this conclusion can be succinctly stated as follows, largely (but not entirely) accepting the arguments advanced by the appellants as detailed above as to inadequacy of the substratum findings of the primary judge in the 33 subparagraphs of LJ[340] as a basis for inferring that the indispensable state of mind requirement of assent for the existence of an arrangement or understanding had been met, and largely (but not entirely) rejecting the arguments of the ACCC as to the sufficiency of those substratum findings for that state of mind aspect. 179 Consideration of the 33 subparagraphs of LJ[340] in light of the need for the conclusion of an arrangement or understanding being the more probable inference to draw gives rise to the following assessment: (a) Subparagraphs (1) to (11) are findings directed to the background of the subcontract tender process, including that process itself and the awarding of the subcontract to WPI. As such they provide context to what followed and are part of the factual matrix by which the later conduct falls to be understand and assessed. But they do not themselves amount to any basis for finding that there was the necessary conduct or state of mind for the bringing into existence of any arrangement or understanding. (b) Subparagraphs (12) to (16) are findings as to WPI performing some work under the subcontract, and Mr Steele and Mr Clarke becoming aware of WPI being engaged with the knowledge that WPI did not have an EBA (that is, a CFMEU EBA). The findings also address concerns raised about WPI as to a lack of consultation by Hutchinson with CFMEU as required by cl 35.2 of the EBA between Hutchinson and the CFMEU, and WPI not being registered with industry funds for the payment of worker entitlements. (c) Subparagraph (17) records the primary judge's inference, by reason of the matters in subparagraphs (2)-(4), (6), (10) and (16), that the subcontract with WPI would not have been entered into had the required consultation with the CFMEU taken place. This inference does not of itself contribute to the conclusion that an arrangement or understanding had come into existence, but is again a contextual matter relevant to the facts as found as a whole. (d) Subparagraph (18) contains the finding that on 11 June 2016, a Saturday, Mr Clarke had approached Mr Meland and said that he had strict instructions from Mr Steele to "sit the job down" if WPI came on the site, which the primary judge characterised as a threat to engage in industrial action if Hutchinson allowed WPI to come back on to the site. Subparagraph (19) contains the further finding that during the same conversation, the two men discussed the reason that WPI was not to be allowed back on the site was because it did not have an EBA. (e) Subparagraphs (18) and (19) are of singular importance to the primary judge's inferential reasoning, because they contain the CFMEU's demand and supporting threat, which is at the centre of the arrangement or understanding alleged by the ACCC and found by the primary judge to have been brought into existence by that day, 11 June 2016. (f) All of the findings by the primary judge after subparagraph (19) are about events that post-date 11 June 2016, being the date by which the primary judge found that the arrangement or understanding had come into existence. As such, the most that subparagraph (20) and following can do in supporting an inference of the existence of that arrangement or understanding is to reflect or be consistent with that having already taken place, described by her Honour at subparagraphs (25) (in relation to the findings at (24)), (27), (32) (in relation to the findings at (31)) and (33) as each being a later "manifestation of mutual consent to carry out a common purpose". Each event is therefore not itself evidence of the state of mind necessary at the point of formation of the arrangement or understanding, but rather at most the basis for finding an ex post facto manifestation that this is the state of mind that existed when that had earlier occurred. 180 Great care must be taken with drawing inferences about the state of mind attaching to what has taken place at a particular point of time from conduct that has taken place later, especially as it carries the danger identified by Hutchinson of circular reasoning in supporting a conclusion already reached which involves assuming that the prior conclusion is correct. As such, each event characterised by the primary judge as a manifestation of consent and thus the necessary state of mind, requires close consideration and assessment of its evidentiary capacity and weight. That is because the necessary state of mind cannot be acquired after the arrangement or understanding is found to have come into existence, because it is an indispensable part of what must be present for that to exist. 181 The primary judge: (a) at LJ[336], in paraphrasing Associated Northern Collieries at 400; and (b) at LJ[340] at subparagraphs (25), (27), (32) and (33) in using the phase "manifestation of mutual consent to carry out a common purpose" sourced from both the original quote from Associated Northern Collieries and her Honour's paraphrasing of that quote, relied on conduct by words and by actions of officers of the CFMEU in relation to WPI's attempts to obtain an EBA and to work on the site as evidence of the CFMEU's assent to the arrangement or understanding, or upon a conversation between Mr Berlese and Mr Meland about terminating the WPI subcontract (and subsequently doing so). The thrust of Hutchinson's argument, and also the CFMEU's argument although not quite stated as such, is that each of these later manifestations were equally explicable as reflecting the CFMEU's unilateral demand that Hutchinson cease using WPI to provide waterproofing services, and its determination that this use of WPI would not take place, as they were of reflecting any meeting of the minds as to an arrangement or understanding. That argument applies the formation of the requisite arrangement or understanding by 11 June 2016, being both that Hutchinson would no longer acquire waterproofing services from WPI at the Southpoint project, and that the WPI contract would be terminated. Hutchinson submits that her Honour's reasoning assumes the existence of the arrangement or understanding in order to give the malign interpretation of what was said or done by the CFMEU to manifest consent to the exclusion of WPI from the site and termination of its contract. For the following reasons that characterisation should be accepted. 182 As to the later manifestations of the arrangement or understanding found by the primary judge, subparagraph (24) contains findings by her Honour about Mr Meland's attempts to find a way to enable WPI to come back on site, by endeavouring to assist WPI to obtain an EBA. Those attempts included Mr Meland speaking to Mr Steele about why WPI could not get an EBA. The primary judge found that Mr Steele said that Mr Ray Hadfield (in context meaning WPI) would not be doing the waterproofing at the site because he would not be able to get an EBA, and suggested that Hutchinson instead use another subcontractor, Spanos, who did have an EBA. Her Honour found that these words uttered by Mr Steele were a strong indication that there was already an arrangement or understanding between Hutchinson and the CFMEU and that Hutchinson would no longer acquire waterproofing services from WPI at the site and, in the circumstances where it was known that there was already a subcontract, that this would be terminated. At subparagraph (25), her Honour found that Mr Steele's statements were a "manifestation of mutual consent to carry out a common purpose", being the state of mind applicable to the content of the arrangement or understanding. 183 There are two problems with this reasoning. First and foremost, this analysis and finding does not of itself amount to a finding that there was assent, but rather is at most some measure of corroboration for such a finding already independently reached. To regard it as going further than this involves unavoidable reasoning of assuming something has occurred in order to prove that it has taken place. A confirmatory manifestation of this kind does not of itself support the drawing of an inference that the necessary state of mind was present when the arrangement or understanding was said to have been reached at an earlier point in time, being the time of formation. Secondly, this manifestation is equally consistent with unilateral action on the part of Hutchinson to exclude WPI from the site. Properly viewed, it is intractably neutral, and affords no sound independent basis for a finding that the arrangement or understanding had been earlier brought into existence with the necessary state of mind. 184 As to the second later manifestation found by the primary judge, subparagraph (27) refers to WPI being informed by Mr Clarke on or about 21 June 2016 that it needed to call a CFMEU representative, Mr Scott Vink, to "get a go ahead with work". As Mr Vink was not able to be contacted until 4 July 2016, Mr Clarke told WPI to speak to Mr Steele, who could not be contacted despite repeated calls. Mr Meland was informed of these facts by email, which is considered below in relation to the third later manifestation found by the primary judge. Her Honour found that requiring WPI to contact Mr Vink and then Mr Steele to enable it to resume work at the site, and not returning the calls, was a further "manifestation of mutual consent to carry out a common purpose", being the state of mind applicable to the content of the arrangement or understanding. While it is not altogether clear how this conduct is a later manifestation of any prior state of mind, this finding in any event suffers from the same weakness as the first manifestation found, in that again it does not of itself support an inference that the necessary state of mind was present when the arrangement or understanding was said to have been reached at an earlier point in time. While it may not be equally consistent with unilateral action on the part of Hutchinson to exclude WPI from the site because encouragement is being given to taking the issue up with the CFMEU rather than Hutchinson, it remains evidence that is neutral in its effect because it suggests that a return to the site was thought possible contrary to an arrangement or understanding that this would not take place. Properly viewed, it too affords no independent basis or even any real contributory basis for a finding that the arrangement or understanding had earlier been brought into existence with the necessary state of mind. 185 As to the third later manifestation found by the primary judge, subparagraph (31) reproduces the email sent by Mr Ray Hadfield to Mr Meland on 13 July 2016 about the attempts to get in contact with Mr Vink and Mr Steele in relation to WPI being forced to stop work at the site and seeking his assistance. This email in substance is a written version of the second later manifestation, and accordingly the same conclusions apply. 186 As to the fourth and final later manifestation found by the primary judge, subparagraph (33) contains findings about the conversation between Mr Berlese and Mr Meland about terminating the WPI subcontract, culminating in Mr Berlese telling Mr Meland to "deal with it". Her Honour found that this conversation, including there being no resistance by Mr Berlese to terminating the subcontract, and her Honour's inference that this was what Mr Berlese intended Mr Meland to do, when coupled with that termination taking place a week or so later on 26 July 2016, was itself a "manifestation of mutual consent to carry out a common purpose", again being the state of mind applicable to the content of the arrangement or understanding. There are two problems with this conclusion. First, this is directed only to Hutchinson and accordingly does not take things further than unilateral conduct to terminate the WPI subcontract, and it is intractably neutral as to whether it is reflective of an arrangement or understanding or of parallel conduct. Secondly, it adds nothing to the more critical issue of assent by the CFMEU. 187 Taken as a whole, all four manifestations of mutual consent to carry out a common purpose as the state of mind applicable to the content of the arrangement or understanding relied upon by the primary judge do not advance in any material way the conversation between Mr Clarke and Mr Meland on 11 June 2016 as a basis for finding that the requisite state of mind existed to take what occurred beyond Hutchinson merely succumbing to threats by the CFMEU. This conversation on its own does not establish any more than unilateral parallel action by Hutchinson in response to the threats made by the CFMEU. The conclusion that must therefore be reached is that the primary judge erred in finding that the meeting of minds, or the equivalent, necessary for an arrangement or understanding was proven. 188 It follows that the finding by the primary judge that the ACCC proved the existence of the alleged arrangement or understanding between Hutchinson and the CFMEU cannot stand. The appeal grounds to that effect must succeed, noting the rejection of the ACCC's notices of contention below.

The ACCC notices of contention 189 The ACCC's notices of contention in each appeal, cast in substantially identical terms, assert that the primary judge erred in finding at LJ[340(33)] that Mr Meland was "not himself aware of the arrangement or understanding between Hutchinson and the CFMEU and was attempting to assist WPI to return to the site" upon the basis that this finding was not available to her Honour on the available evidence. The ACCC therefore contend that her Honour ought to have found that Mr Meland was aware of the arrangement or understanding between Hutchinson and the CFMEU and, even if reluctantly, entered into it and gave effect to it on behalf of Hutchinson. 190 On any view, a challenge to a trial judge finding an absence of knowledge or awareness on the part of a witness and participant in events the subject of litigation faces a steep hurdle. It is not enough to point to evidence that could have supported a contrary finding. That contrary finding must be shown to be compelled by the evidence such as to amount to an error in not making it. 191 The ACCC submits that the evidence and circumstances which supported a finding that Mr Meland was aware of an arrangement or understanding which had been reached between Hutchinson and the CFMEU was as follows: (a) Mr Meland knew about the CFMEU's threats and of the decision to suspend WPI in response; (b) it is unlikely that Mr Meland would have terminated the WPI subcontract without running it past Mr Berlese who was his supervisor and did not arrive at his decision to do so without exhausting attempts to get an EBA for WPI before realising this was futile, relying upon the primary judge's findings to that effect at LJ[273]; (c) a belief on the part of Mr Meland that he was duty-bound to adhere to the wishes of Hutchinson to terminate the WPI subcontract is able to be derived from his statement to Mr Thone, the site manager, that the issue concerning WPI was "out of [his] hands" in response to Mr Thone saying to him that there was no law saying it had to be an EBA subcontractor, relying upon her Honour's reasons at LJ[244]-[248]; (d) Mr Meland gave evidence that he had conversations with Mr Berlese about WPI prior to their last conversation on this topic on or about 19 July 2016; (e) Mr Meland's evidence was that the only reason he terminated the WPI subcontract by the 26 July 2016 letter using a "termination for convenience" clause was to avoid the risk of an industrial dispute with the CFMEU, with the use of such a clause being unusual and unorthodox; (f) the above facts support an inference that Mr Meland ultimately accepted that he had no choice but to terminate the WPI subcontract, however reluctantly, and the primary judge therefore ought to have found that he was aware of the arrangement or understanding and reluctantly participated in making and giving effect to it. 192 The compelling argument advanced by Hutchinson to the contrary is essentially one arising from the logic and sequence of events. Hutchinson notes that the ACCC does not identify a finding by the primary judge that Mr Meland knew about the threats made by the CFMEU, but he plainly knew about the exclusion of WPI from the site because of the steps that he took to overcome this. The main point advanced by Hutchinson (and therefore also the CFMEU) is that it does not make any sense for Mr Meland to have any awareness that an arrangement or understanding had been reached by 11 June 2016 to culminate in the end of contractual relations with WPI, and then try for over a month after that to get an EBA for WPI which would be contrary to any such arrangement or understanding, before giving up and terminating the subcontract. The primary judge's finding of a lack of such awareness on the part of Mr Meland is the only thing that makes sense of these continued endeavours. This conclusion is reinforced by the ACCC failing to identify any evidence that Mr Meland knew about the threats made by the CFMEU about continuing to use WPI. No error on the part of the primary judge has been demonstrated. 193 Both notices of contention must therefore be dismissed.

Whether it was open to the primary judge to find that the real issue between Hutchinson and the CFMEU was that WPI did not have an EBA 194 The primary judge found that the CFMEU did not only have an issue with WPI not registering with funds into which benefits were required to be paid in the construction industry covering superannuation, income protection and welfare benefits, but that the "real issue" for the union giving rise to the demands that were made was that WPI did not have an EBA, being a CFMEU EBA: see LJ[340] at (24), (25), (27) and (32), in the context of (18)-(22) addressing the meeting on Saturday, 11 June 2016 and the email sent by Mr Meland the following Monday, 13 June 2016; including the related references to the "true issue" and the "real reason". 195 Hutchinson advances this ground of appeal in support of the preceding successful grounds, largely to undercut the primary judge's reasoning leading to the finding of contravention by proffering an alternative explanation for what took place which was inconsistent with there being any arrangement or understanding as alleged. If successful, this would bolster the conclusion reached above that the primary judge erred in finding that there was an arrangement or understanding. 196 Hutchinson contends that the real issue, as a factual question on the evidence before the primary judge, was compliance with pay parity obligations in cl 35.2 of the EBA, mainly by way of registration with, and payment into, the industry funds consistently with those paid to other employees on the site. The CFMEU's appeal ground is wider, turning on broader analysis of the terms of cl 35.2 which was unsuccessful before the primary judge, but also encompassing aspects of Hutchinson's argument directed to the evidence. In light of conclusions already reached as to the finding of contravention being vitiated by error, each of these appeal grounds requires only relatively confined consideration. 197 The argument advanced by Hutchinson can be dealt with quite concisely. The real issue is whether error has been established on the part of the primary judge in finding that one motive standing behind the demands, supported by threats, made by the CFMEU should be found to have been more important than the other or even to the exclusion of the other. That is, was the CFMEU more concerned with WPI not being registered with the funds (which was rectified) and with payments being made to those funds (which did not occur before WPI was excluded from the site), or more concerned with WPI not having an EBA? The evidence principally relied upon by Hutchinson as to the former turned on the email sent by Mr Meland to Mr Berlese, copied to Mr Thone, on Monday, 13 June 2016 about the meeting two days earlier between Mr Meland and Mr Clarke, documentary evidence referring to the pay parity issues rather than EBA issues, and Mr Berlese's evidence (which was not accepted by the primary judge) that he considered the real issue to be pay parity. However, this binary approach did not find favour with her Honour. The email cast the pay parity issue as being an impediment to getting an EBA, rather than a separate or standalone issue, as her Honour correctly identified at LJ340. In cross-examination, Mr Meland made it clear that the conversation was "squarely and clearly about the fact that there was no EBA", being evidence from a participant to the conversation whose evidence her Honour accepted and was entitled to accept, even if the documentary evidence might have tilted in a different direction or emphasis. 198 It is not to the point that Mr Meland's understanding was apparently partly based on an incorrect understanding of what was taking place as to pay parity, and an incorrect belief as to the existence of a requirement that WPI have an EBA. Nor it is to the point that the evidence sought to be impugned by Hutchinson, as against other evidence, might have led to a different conclusion being reached. This is a situation where the primary judge enjoyed evaluative advantages, especially as to both oral evidence and its interplay with other evidence, which is not fully shared or able to be replicated by this Court. 199 Even allowing for flaws in the detail of Mr Meland's understanding of what had happened in relation to pay parity identified by Hutchinson, it has not been demonstrated that the primary judge erred in nonetheless concluding that the real issue was WPI not having an EBA, noting that Mr Meland moved to termination of the WPI subcontract upon realising that his protracted attempts to get it an EBA had proved futile. Her Honour was entitled to give weight to the underlying reality of the CFMEU's determination not to have WPI on the site, especially as reflected in what Mr Meland was told by Mr Clarke at the 11 June 2016 meeting, rather than giving weight to aspects of the written form in which that concern manifested, including in Hutchinson's records. Moreover, as the ACCC correctly point out, it is difficult to see how a finding of error would really have helped Hutchinson in any event, because that would be to confuse motive with purpose when it came to the arrangement or understanding. Whatever the motive, the purpose of the arrangement or understanding, had it been able to be proven to exist, was the exclusion of WPI from the site and the termination of its subcontract. 200 Hutchinson's appeal on the "real issue" point must therefore fail.

Whether an "acquisition situation" was precluded by breaches of industrial law 201 The argument advanced by the CFMEU that there was no contravention at all turns on the interpretation of cl 35.2 of the EBA between Hutchinson and the CFMEU. The point taken is to do with the interface between industrial law and competition law. In this case, the secondary boycott contravention alleged in part turned upon there being an "acquisition situation" because Hutchinson had a contractual obligation under the subcontract to acquire goods or services from WPI, so as to fall within s 45E(1)(b) of the CCA. However, if Hutchinson breached cl 35.2 of the EBA and thereby contravened s 50 of the Fair Work Act 2009 (Cth), that contravention takes the acquisition of goods or services from WPI outside the definition of "acquisition situation", so as to exclude the operation of the secondary boycott provisions. Hutchinson's and the CFMEU's conduct then becomes a question of industrial law, rather than competition law. 202 The primary breach of cl 35.2 alleged by the CFMEU and rejected by the primary judge was a failure to comply with the obligation imposed upon Hutchinson, before employing a contractor and its employees, to consult in good faith with potentially affected existing employees and their union. A consequential breach of not paying entitlements was also alleged. The primary judge found that the primary breach was not established and that as a consequence, the question of a secondary breach did not arise. 203 Clause 35 (excluding cl 35.3) of the EBA was as follows: [35.1] The Employer recognises that in certain circumstances the use of contractors and labour hire may affect the job security of Employees covered by this Agreement. [35.2] Use of Contractors If the Employer wishes to engage contractors and their Employees to perform work in the classifications covered by this Agreement, the Employer must first consult in good faith with potentially affected Employees and their Union. Consultation will occur prior to the engagement of sub-contractors for the construction works. If, after consultation, the Employer decides to engage bona fide contractors, these contractors and their Employees will receive terms and conditions of engagement (or terms no less favourable) as they would receive if they were engaged as Employees under this Agreement performing the same work. The use of sham sub-contracting arrangements is a breach of this Agreement. (emphasis added) 204 The dispute and its resolution turned on the meaning of "potentially affected Employees" in cl 35.2. The dispute maintained on appeal is highly fact specific and turns on the meaning of a provision of an industrial instrument, so does not warrant detailed summary or reproduction of either the arguments or the primary judge's reasons. In short, the CFMEU sought to give that phrase a very wide meaning, so as to require consultation with at least directly employed employees who could do the work, untrained employees who could be trained to do the work, and those likely to work side by side with the contractors or rectify their work. Hutchinson (being the principal contradictor at trial, and therefore supporting the ACCC on this issue) submitted that cl 35.2 had to be read in the context of cl 35.1 and the evident purpose of preserving job security of those directly affected, so that the phrase meant employees who could be affected by the retaining of a particular subcontractor, which in this case was confined to qualified water proofers, with there being no evidence that Hutchinson employed any qualified water proofers. 205 Hutchinson's argument was accepted by the primary judge, such that there were no employees who were required to be consulted. No error on the part of her Honour has been demonstrated. Any other interpretation would be incoherent. Her Honour was also correct to find that the second paragraph of cl 35.2 is only engaged when the obligation to consult is engaged, both because that is the clearly correct way to read the clause with the reference in the second paragraph to "after consultation"; and because to find otherwise would be to depart from the longstanding principle that industrial instruments are to be interpreted with a practical bent of mind: WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197]. 206 The CFMEU's appeal ground as to there being no acquisition situation so as to exclude the operation of the secondary boycott provisions must therefore fail.

Whether the primary judge erred in making findings of fact and credit which were inconsistent with or against the weight of the documentary evidence 207 As the appellants have succeeded, having vitiated the primary judge's findings of an arrangement or understanding upon the basis of accepting her Honour's factual findings, it is not sought and not necessary for this Court to determine whether there is any error in making findings of fact and credit, noting that it is unlikely that there would have been a sufficient measure of success on the arguments advanced for this to have been a sufficient basis for the appeals to succeed. As already noted, her Honour was meticulous in the analysis and evaluation of the evidence, with little in the way of substantial error being apparent as to primary fact-finding.

Whether the primary judge's decision on penalty was infected by error 208 As the liability appeals have been successful, the penalty aspect of the appeal by the CFMEU does not fall for consideration.

CONCLUSION 209 The appeals succeed and the finding of liability must be set aside. As a consequence, the penalties imposed must also be set aside. The ACCC must pay the appellants' costs, including in relation to the notices of contention. I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromwich and Anderson.