FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Cascade Coal Pty Ltd [2019] FCAFC 154

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ costs of and incidental to its appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The proceedings below concerned an alleged understanding reached in June 2009 between the first respondent (Cascade), the second respondent (Voope), Loyal Coal Pty Ltd (Loyal) (a respondent at first instance), Buffalo Resources Pty Limited (Buffalo), and Mr Paul Gardner Brook (an officer of Voope and Buffalo, and also Loyal after 2 June 2009), in connection with a competitive expression of interest (EOI) process conducted by the New South Wales Department of Primary Industries (the Department) in respect of the opportunity to apply for and obtain exploration licences (ELs) for certain coal release areas in New South Wales (the EOI withdrawal understanding). The EOI withdrawal understanding was in part sourced to what we will later identify as the Buffalo agreement made on 5 June 2009 between Buffalo and Cascade. Voope, Buffalo and ultimately Loyal were entities associated with Mr Moses Obeid, the sixth respondent, and Mr Paul Obeid, the seventh respondent (the Obeids).

2    The primary judge found that the EOI withdrawal understanding included a provision whereby Buffalo and its associates, which included Voope, Loyal (formerly Monaro Coal Pty Ltd) and Mr Brook, would procure the withdrawal of expressions of interest made by Monaro Mining NL (MMNL) in respect of two coal release areas, being Mount Penny and Glendon Brook (the withdrawal provision). But the primary judge found that the making of the EOI withdrawal understanding containing the withdrawal provision did not contravene ss 4D and 45(2)(a)(i) of the then Trade Practices Act 1974 (Cth) (TPA) (now the Competition and Consumer Act 2010 (Cth) (CCA)) for three reasons.

3    First, his Honour found that Cascade was not relevantly competitive with Loyal or Voope as required by the then s 4D of the TPA.

4    Second, his Honour found that the withdrawal provision did not have the purpose of preventing, restricting or limiting the supply or acquisition of services from particular persons or classes of persons by parties to the relevant contract, arrangement or understanding as required by the then s 4D.

5    Third, his Honour found that the joint venture defence in the then s 76C of the TPA would have been made out in any event.

6    The appellant (ACCC) has appealed each of these conclusions. Below, the ACCC also put a “giving effect to” case, but the primary judge also found against the ACCC in relation to that case; the ACCC does not now press grounds 8 and 9 of its amended notice of appeal on that aspect. For completeness, we note that as matters presently stand, the ACCC has not pursued its appeal against the third and fifth respondents and now has no case on appeal concerning the fourth respondent. As a result it is unnecessary to consider any conduct which occurred after the commencement of the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Cth) and is therefore unnecessary to consider the operation of ss 44ZRD, 44ZRK and 44ZRP of the CCA as in force after that commencement.

7    For the reasons that follow, we reject the ACCC’s grounds of appeal.

THE COMPETITION QUESTION

8    It is convenient to begin by reciting some of the factual background as found by the primary judge relevant to his Honour’s reasoning on the competition question (see [492] to [515]).

(a)    Some factual background

9    In November 2007, Locaway Pty Ltd, a company controlled by the Obeid family, completed the purchase of a rural property known as Cherrydale which is located at Bylong, New South Wales. Subsequently, over the next two years, the Obeid family, through companies and trusts controlled by the family, and, on occasion, in conjunction with associates of the family, also purchased two additional rural properties in the same area, Donola and Coggan Creek. These additional properties adjoined Cherrydale.

10    In early July 2008, Mr Moses Obeid, who is the eldest son of Mr Eddie Obeid, met with Mr Brook who was, at that time, Senior Vice President, Asia Special Situations Group, of Lehman Brothers (Lehman) in Sydney, in order to gauge Lehman’s interest in being involved in a coal mining venture in the Mount Penny coal exploration area. Bylong is a few kilometres from Mount Penny. Cherrydale, Donola and Coggan Creek are centrally located in the Mount Penny coal exploration area which was one of the areas released by the New South Wales Government for the purposes of allowing exploration for coal to be undertaken there as we will now explain.

11    In August 2008, the Department prepared an “EOI Information Package” in respect of 11 coal release areas in New South Wales. This initiated a closed tender process whereby specific mining companies were invited by the Department “to submit an EOI to be considered as a company that might, after due evaluation, be invited, with the Minister’s consent, to apply for an EL” ([505]). The Department issued the relevant invitations in September 2008 and January 2009.

12    On 19 September 2008, an invitation to lodge an EOI in respect of all eleven coal release areas was sent to MMNL. At the same time, invitations were also sent to other companies. An initial EOI information package was sent with each EOI invitation. Cascade did not receive an initial invitation to lodge an EOI for any of those coal release areas.

13    Soon after Mr Brook’s first meeting with Mr Moses Obeid, Mr Brook contacted Mr Warwick Grigor, who was then the Chairman of MMNL. Over the next few weeks, Mr Brook negotiated an arrangement between Voope, a company beneficially owned and controlled by the Obeid family, and MMNL, whereby MMNL granted to Voope or its nominee an option to acquire 80% of the issued capital of a special purpose vehicle, which was initially to be a wholly-owned subsidiary of MMNL, Monaro Coal Pty Ltd. Ultimately, Monaro Coal Pty Ltd was registered with the intention of being such a vehicle. The option granted to Voope by MMNL was designed to place Voope in control of any EOIs lodged by MMNL pursuant to the Department’s invitations of 19 September 2008. This arrangement was ultimately recorded in an Option Deed over Shares dated 20 August 2008 between MMNL and Voope (Voope Option Deed). Monaro Coal Pty Ltd later changed its name to Loyal Coal Pty Ltd.

14    On 15 September 2008, Lehman collapsed. As a result, Mr Brook began to act on his own and for himself in connection with his ongoing dealings with the Obeid family and MMNL. At the same time, his nominee company, Oregon Standard Pty Limited, signed a consultancy agreement with MMNL. Subsequently, Mr Brook also inserted himself into the dealings between the Obeid family and Cascade and its directors.

15    On 21 November 2008, MMNL lodged EOIs for nine of the eleven coal release areas referred to in the initial EOI information package. Included within those nine areas were the Mount Penny and Glendon Brook coal release areas and also the Yarrawa coal release area. As part of its submitted EOIs, MMNL promised to make financial contributions of some $60 million, including a $25 million voluntary contribution for the Mount Penny coal release area, a $5 million voluntary contribution for the Glendon Brook coal release area and a $2 million voluntary contribution for the Yarrawa coal release area. The voluntary financial contributions were in addition to the compulsory financial contributions that had to be paid.

16    In January 2009, the Department re-opened the EOI process. As a result, additional companies were invited by the Department to lodge EOIs, including Cascade.

17    On 16 February 2009, Cascade submitted EOIs to the Department in respect of the Mount Penny and Glendon Brook coal release areas. Glendon Brook is located in the Hunter Valley, approximately 12 km east of Singleton and approximately 170 km east of Mount Penny.

18    By 6 May 2009, MMNL was identified by the Department as the preferred applicant for five coal release areas including Mount Penny, Yarrawa and Glendon Brook. In this regard his Honour found that MMNL’s stated financial contributions had a decisive effect in the deliberations of the Department’s evaluation committee. The evaluation committee proposed that letters be written to the successful and unsuccessful applicants the latter of which included Cascade. The Department later confirmed to MMNL that “all financial contributions were required to be paid in a lump sum, up front … within 30 days of the Minister giving consent to an applicant to apply for an EL” ([232]).

19    But MMNL did not have the money to pay its financial contributions. His Honour found that MMNL “had no prospect of obtaining those funds within the timeframe laid down by the [Department]” ([423]).

20    As his Honour found, Mr Brook had been unable to raise the funds necessary to satisfy MMNL’s financial contribution conditions, notwithstanding his earnest efforts to secure finance during the period from September 2008 to late May 2009. And Buffalo and Mr Brook were well aware that Mr Brook had “no chance of raising the necessary funds within the requisite timeframe” ([523]).

21    By 20 May 2009, Mr Brook as well as the Obeids were aware that pursuing an EL though the MMNL bids for Mount Penny and Glendon Brook involved the payment of more than $30 million within 30 days after the Minister’s consent was given to MMNL to make an EL application. But they were not in a position to make those payments. Moreover, as his Honour found, neither Mr Brook nor the Obeid family had ever intended to capitalise any EL from their own funds or from borrowed funds for which they or entities associated with them would be liable.

22    As his Honour said, the Obeids and their associates “were never going to take over the EOIs themselves and had no realistic prospect of persuading anyone else of doing so other than Cascade” ([508]). And there was “absolutely no prospect” that either Loyal or Voope would pursue the MMNL EOIs ([524]). His Honour found there was “no doubt” that the Obeid family “was not going to fund any of the MMNL bids, either directly or through Voope” ([423]).

23    On 22 May 2009, MMNL’s board of directors resolved to withdraw MMNL’s EOIs. His Honour found that MMNL made “a firm and substantially unqualified decision” where “[t]he contingencies expressed in the resolution itself were mere window dressing” ([432]). MMNL was unwilling to progress its EOIs having decided to end its interest in coal and revert to uranium. Further, the directors of MMNL were concerned about insolvent trading if MMNL were to pursue EOIs that it did not have the money to fund.

24    Nevertheless, after MMNL’s board resolution of 22 May 2009, Mr Mart Rampe, the Managing Director of MMNL, proposed to other MMNL directors the “tall order” ([243]) of continuing to try to obtain finances for MMNL’s EOIs. And as we have said, he and the other board members of MMNL were concerned about insolvent trading and protecting MMNL’s good name in that regard. Mr Rampe wrote in an email copied to Mr Brook dated 25 May 2009: “[i]f the responses [from potential financiers] are unsatisfactory, then we can advise the [Department] of our withdrawal” ([243]). Mr Rampe regarded MMNL as free to decide whether to accept, or reject, any invitation by the Department to apply for an EL.

25    Before MMNL’s resolution was communicated to the Department or more widely, members of the Obeid family and others, including Mr Brook, sought to strike a deal with Cascade on the basis that the MMNL bid for Mount Penny was withdrawn and the Cascade bid succeeded, where Mr Moses Obeid knew that the MMNL bid would not proceed and that Cascade was the second ranked bidder.

26    On 23 May 2009, Mr Brook, Mr Moses Obeid, Mr John McGuigan (director of Cascade and the ninth respondent) and Mr James McGuigan (associate of Cascade and the tenth respondent) met in order to discuss a potential deal with Cascade.

27    Between 23 May 2009 and 31 May 2009, Mr Brook and Mr Moses Obeid took steps by which they intended that Voope would gain complete ownership and control of Monaro Coal Pty Ltd and control of the EOIs lodged by MMNL in respect of a number of coal exploration areas, including the Mount Penny and Glendon Brook coal exploration areas.

28    On 31 May 2009, a second meeting took place. Those in attendance were Mr Brook, the Obeids, Mr John McGuigan and Mr James McGuigan. An in-principle agreement was struck at this meeting. The substance of that agreement was as follows. For a consideration equivalent to four times the value of Cherrydale, Donola and Coggan Creek, the owners of those properties would transfer those properties to Cascade or its nominee. In addition, Cascade and a nominee entity of the Obeids would enter into a coal mining venture in order to exploit the coal reserves in the Mount Penny coal exploration area. The Obeid entity would have 25% equity in that venture subject to certain detailed terms. The Obeids and Mr Brook would ensure that the EOIs lodged by MMNL for Mount Penny and Glendon Brook would be withdrawn.

29    On 1 June 2009, Mr Rampe on behalf of MMNL emailed the Department to confirm MMNL’s understanding of funds payable, nominating “Royal Coal Pty Ltd” as MMNL’s “nominee company” and informing the Department that the ownership of “Royal Coal Pty Ltd” “will be transferred to Voope Pty Ltd who is the financial partner of Monaro’s consortium” ([272]). An updated version of this letter dated 2 June 2009 altered “Royal Coal Pty Ltd” to Loyal.

30    Mr Richard Poole was a director of Cascade and the sole director and shareholder of Coal & Minerals Group Pty Ltd being the fourth respondent before us. Mr Poole first became involved in the negotiations for what became the Buffalo agreement on 1 June 2009. His evidence was largely accepted by the primary judge.

31    On 1 June 2009, Mr Poole and Mr Brook had a meeting. At this meeting Mr Brook told Mr Poole that a joint venture was to be formed with Cascade and that the deal “had basically been agreed”. He told Mr Poole that he had secured all the land around Mount Penny, and that he had been working with an (unidentified) public company on an EOI, but had been unable to raise funding. He also “probably” told Mr Poole that the public company with which he had been working had got cold feet and had decided that it did not want to proceed with any of the EOIs. He told Mr Poole that at Mr John McGuigan’s suggestion, Mr Poole was being asked to draft the documents recording the deal.

32    The primary judge accepted Mr Poole’s evidence that after the 1 June 2009 meeting with Mr Brook, Mr Poole had a clear understanding that the public company with which Mr Brook had been working was not proceeding with its EOIs.

33    A draft of what became the Buffalo agreement recording the deal was prepared by Mr James McGuigan and reviewed by Mr Poole later in the day on 1 June 2009. The draft included a clause, proposed by Mr Poole, to the effect that the party whom Mr Brook represented (described as the “Nominee”), together with its associates and related parties, undertook “not to pursue the grant of any mining rights in the area or to any contiguous area” ([281]). Mr Poole’s evidence was that he proposed that amendment because he “believed that if you’re going to enter into a joint venture you had to agree you were going to work together” and he “didn’t want Gardner to pursue mining rights … in the area the subject of the joint venture”. The primary judge accepted Mr Poole’s evidence as to his subjective purpose.

34    But the proposed amendments made by Mr Poole on the evening of 1 June 2009 did not include any reference to the withdrawal of any existing applications for mining rights (see [281]). That was consistent with the Key Principles document of 31 May 2009, which his Honour took as a reliable record of the meeting earlier on 31 May 2009 between Mr Brook, the Obeids, Mr John McGuigan and Mr James McGuigan. The Key Principles document similarly made no reference to the withdrawal of any existing EOI applications (see [263]).

35    The 1 June 2009 draft of the Buffalo agreement stated that “in recognition of the Nominee’s position as the key owner of land in the Mount Penny area”, Cascade would grant the Nominee “a 25% interest in JVCO”. That language accorded with paragraph 6 of the Key Principles document of 31 May 2009, and with the fact that, as Mr Poole explained in his evidence, the primary reason that the deal with Cascade was to occur and did occur was that Mr Brook represented the key landholders and was bringing the land, without which Cascade could not mine Mount Penny.

36    On 2 June 2009, Voope and MMNL entered into a Deed of Release which terminated the Voope Option Deed (cl 5.1). As we will explain later, that instrument did not require MMNL to proceed with any application for an EL for which it obtained the consent of the Minister for Primary Industries (Minister) under s 13(4) of the Mining Act 1982 (NSW), unless Voope provided MMNL with funds to meet its financial obligations under the EOIs for Mount Penny and Glendon Brook.

37    At this point again we note that MMNL could not obtain the necessary funds within the 30 days required by the Department and Voope (controlled by the Obeids) did not want MMNL to obtain an EL for Mount Penny and would not provide funds to do so. The primary judge held that there was no real likelihood of MMNL nominating Loyal ([508], [513]).

38    On 3 June 2009, Mr Poole participated in a meeting with Mr Brook, Mr Moses Obeid and Mr James McGuigan. The primary judge accepted Mr Poole’s evidence that the main issues discussed at this meeting were the final multiples of the land value to be paid to the landowners for acquisition of the land in the event of the grant of a mining lease, the treatment of exploration funds to be outlaid in the joint venture by Cascade, and the requirement for Buffalo to contribute cash to the joint venture after Cascade met a maximum limit on expenditure ([295], [298]). The primary judge accepted Mr Poole’s evidence that, whilst going through the draft Buffalo agreement at this meeting, he read the “won’t pursue mining rights” clause and said at this meeting words to the effect: “Because this is a JV, the parties have to work together”, that there was no controversy about this at the meeting, and that Mr Brook confirmed he had no interest in Glendon Brook ([295], [298]).

39    The primary judge did not accept the ACCC’s submission that at the 3 June 2009 meeting which Mr Poole attended, there had been discussion to the effect that, if an agreement could be reached with Cascade, Loyal would send letters to the Department withdrawing the MMNL EOIs for Mount Penny and Glendon Brook ([306] to [307]). However, his Honour was prepared to accept that at some time prior to the sending of Mr James McGuigan’s email at 5:57 pm on 3 June 2009 ([303] to [304]), there was discussion amongst the parties to that effect ([307]).

40    At 9.49 am on 4 June 2009, Mr James McGuigan sent an email to his father containing the text of the draft Landowners agreement and the draft Buffalo agreement, stating “I’m pretty sure we are there”. The draft Buffalo agreement contained the same language as the draft sent at 5.57 pm the previous evening including “ …Buffalo … and its associates or related parties undertaking not to pursue the grant of any mining rights to the Mount Penny area or any contiguous area, or the Glendon Brook EOI Coal Release Area …”.

41    On 5 June 2009 a meeting was held between Mr Moses Obeid and Mr Brook and representatives of Cascade, being Mr Richard Poole, Mr James McGuigan and Mr John McGuigan. At the meeting the draft Buffalo agreement was amended, for the first time, to refer to the “withdrawing” of “existing applications”. The primary judge accepted Mr Poole’s evidence that the amendment referring to the “withdrawing” of “existing applications” was made because, during the course of the meeting, Mr Brook raised a query concerning what should be said in the document concerning the MMNL EOIs for Mount Penny and Glendon Brook and it was agreed that the clause should be amended to say that they would be withdrawn.

42    Just to recapitulate, Mr Brook told Mr Poole on 1 June 2009 that the public company he (Mr Brook) was working with had decided not to proceed with its EOI. Mr Poole had a clear understanding after 1 June 2009 that the public company which Mr Brook had been working with, MMNL, was not proceeding with its EOIs. At the 5 June 2009 meeting, Mr Poole added the withdrawal provision, and as he explained it, “to reflect what [he] considered to be the commercial realities of joint venture partners”. He said:

I did not understand it was part of my role to suggest changes to the fundamental terms of either the landowners agreement or the joint venture agreement but only to ensure the documentation was legally sound and protected Cascade Coal. I understood that the principal terms of both letter agreements had been agreed and that Arthur Phillip was being asked to document those terms and finalise the letter agreements. I understood that it was my role to suggest amendments to ensure that the final terms of the letter agreements ‘protected’ Cascade Coal’s commercial interests and minimised its financial exposure. I suggested, by my marked-up changes to the draft letter agreements, that they be amended as follows:

(a)    I added terms that I viewed as standard clauses for a joint venture agreement to ensure the parties worked well together in the joint endeavour, I inserted:

(i)    what I would describe as a “general non-compete” clause in the joint venture agreement, namely the words: “.....the Nominee: ... and its associates and related parties undertaking not to pursue the grant of any mining rights to the area and any contiguous area ...”. I made this change to reflect what I considered to be the commercial realities of joint venture partners needing to work together. I considered that if Gardner (or his related entity) was going to be a joint venture partner with Cascade Coal, he (or his company) had to agree not to pursue mining rights in relation to the relevant Coal Release Areas that Cascade Coal was hoping to work in. From my experience as an investment banker and corporate adviser, it is commercially prudent, particularly in joint venture arrangements with small companies, to provide a term that the joint venturers will generally work together and where possible not act against each other’s interests. I considered at the time that this was a reasonable and sensible amendment. I considered that it would have been negligent of me, and of Arthur Phillip, to permit Cascade Coal to enter into a joint venture agreement in the absence of such a term;

(ii)    what I would describe as a “general assistance” clause, namely the words: “ .....the Nominee: ... agreeing to assist Cascade to explore and develop the Exploration Licence and Mining Lease”; and

(iii)    what I would describe as a general clause aimed at “sharing knowledge”, namely the words: “ .....the Nominee ... agreeing to make available and provide their expert knowledge of the area to assist with further exploration and review of the contiguous areas”.

43    The primary judge accepted Mr Poole’s evidence that all he intended to achieve by including the withdrawal provision in the Buffalo agreement was to reflect in that agreement what was already a fact, namely, that MMNL had decided to abandon its EOIs for Mount Penny and Glendon Brook and would have done so in the immediate future come what may. We would note at this point, relevant to an issue that we will come to later, that his Honour concluded that there was a reasonable basis for inferring Cascade’s purpose from Mr Poole’s purpose.

44    During the course of the 5 June 2009 meeting, Mr John McGuigan (on behalf of Cascade) and Mr Brook (on behalf of Buffalo) executed an agreement titled “Letter of Agreement between Cascade and Buffalo Resources Pty Ltd (“Buffalo”)” (the Buffalo agreement).

45    We should at this point set out some aspects of the Buffalo agreement.

46    Key and prefatory paragraphs provided:

Further to our recent discussions this agreement is intended to outline the commercial terms for which both Buffalo and Cascade intend to establish a joint venture with the specific purpose of exploring and developing the Mount Penny Coal Release Area (“The Area”).

Subject to the grant of the Exploration Licence (for the purposes of this agreement (“Exploration Licence”) means an exploration licence granted to Cascade (or an affiliate) as a result of the current tender process and includes any extension renewal or replacement of that licence), the Parties have agreed to form either a Joint Venture Company or an unincorporated Joint Venture (“JV”) to explore and develop the Exploration Licence and pursue the grant of Mining Approval over the Area. For the purposes of this agreement (“Mining Approval”) shall mean the obtaining of all necessary permits and approvals including without limitation the grant of an appropriate mining tenement or tenements and environmental and native title approvals necessary for the development of a 100 million tonne resource.

In addition the JV will pursue the grant and issue of relevant Exploration Licences and Mining Approvals over the area contiguous to the Area and detailed on the attachment hereto currently known as EL 6676 or any portion thereof (“Contiguous Area”).

47    The Area as defined did not include Glendon Brook.

48    Clearly the parties to the Buffalo agreement were agreeing to set up a future joint venture subject to the identified contingency.

49    In terms of the obligations of the parties, the following was said including the first dot point being the withdrawal provision that we have italicised:

In recognition of Buffalo’s intellectual property contribution and in consideration of Buffalo:

•    and its associates or related parties including Gardner Brook and Loyal Coal Pty Ltd withdrawing any existing applications in relation to the Mount Penny and Glendon Brook Coal Release Areas and undertaking not to pursue the grant of any mining rights to the Area or any Contiguous Area, or the Glendon Brook EOI Coal Release Area;

•    agreeing to assist Cascade to explore and develop the Exploration Licence and obtain the Mining Approvals;

•    agreeing to make available and provide their expert knowledge of the Area to assist with further exploration and review of the Contiguous Area.

Cascade agrees to:

•    vest 100% of its interest in the Exploration Licence in the JV; and

•    grant to Buffalo a 25% interest in the JV.

Buffalo does not have to make any contribution to costs of the JV until the earlier of either:

•    Mining Approval for a 100 million tonne resource; or

•    minimum exploration expenditure of A$10m.

Contributions up to this milestone by Cascade to the JV shall be treated as equity.

For the avoidance of doubt, prior to the earlier of the, granting of the Mining Approval or minimum exploration expenditure of A$10m, Buffalo will not be liable to contribute to the costs of the JV including exploration costs.

Upon the earlier of the grant of the Mining Approval or minimum exploration expenditure of A$10m Buffalo will be required to contribute its proportionate share of equity to fund costs should third party debt finance be unavailable or insufficient to fund such costs, including proportionate costs of any land acquisition. Failure to meet required equity contributions proportionate to Buffalo’s equity percentage will result in Buffalo’s interest in the JV being diluted pro rata in accordance with the provisions of the JV agreement governing the development of the Area.

(Emphasis added.)

50    Further, at or following the 5 June 2009 meeting, Mr John McGuigan (on behalf of Cascade), Mr Andrew Kaidbay (on behalf of United Pastoral Group Pty Ltd), Mr Giovanni Campo (on behalf of Geble Pty Ltd), and Mr Justin Lewis (on behalf of Justin Kennedy Lewis Pty Ltd) executed a document titled “Letter of Agreement” (the Landowners agreement). The Landowners agreement was negotiated and finalised by, inter-alia, the Obeids who were directors of Locaway and who had authority to enter into an agreement on behalf of Locaway for the sale of Cherrydale Park.

51    The Landowners agreement was for the sale of, inter-alia, Cherrydale Park. It referred to Cherrydale Park as UPG’s property, but at the time of execution of the Landowners agreement, UPG did not own Cherrydale Park, which was owned by Locaway.

52    As we have said, the Buffalo agreement was signed on 5 June 2009. It was amended by a letter signed in May 2010 backdated to 6 June 2009 (the 6 June amendment). As his Honour found, the Buffalo agreement set out “the commercial terms for which both Buffalo and Cascade intend[ed] to establish a joint venture with the specific purpose of exploring and developing the Mount Penny Coal Release Area” ([320]). It was expressed as subject to the grant of an EL to Cascade. The parties agreed to form either a joint venture company or an unincorporated joint venture “to explore and develop the [EL] and pursue the grant of Mining Approval over the Area” ([320]). This was later clarified by the 6 June amendment to be an incorporated joint venture ([325]). The Buffalo agreement contemplated that Buffalo “and its associates or related parties including Gardner Brook and Loyal” would withdraw “any existing applications in relation to the Mount Penny and Glendon Brook Coal Release Areas” ([320]). The Buffalo agreement purportedly imposed an obligation on Buffalo to contribute intellectual property and to contribute to the costs of the joint venture. It was also interdependent with the Landowners agreement. Acquisition of the land was the reason the deal was attractive to Cascade, and a significant reason for Cascade’s interest.

53    On 9 June 2009, Mr Brook on behalf of Loyal emailed the Department purporting to withdraw Loyal’s EOIs. There then followed an email exchange involving Mr Brook and the Department, copied to Mr Rampe, on 10 June 2009 stating, inter alia, that as of 9 June 2009, Loyal “and thereby Monaro Mining [i.e. MMNL]” withdrew the EOIs in Mount Penny, Spur Hill and Glendon Brook because “the consortium is unable to confirm the level of financing required to adhere to the EOI terms” ([329]).

54    This was consistent with MMNL’s board resolution of 22 May 2009 and Mr Rampe’s subsequent email dated 25 May 2009. There was no exercise by Mr Brook acting for Voope of any power, authority or control over MMNL in implementation of the Buffalo agreement. From MMNL’s perspective, Mr Brook’s communication implemented MMNL’s board resolution and strategy. As we will discuss later, Mr Brook’s asserted control could not require withdrawal of an application for an EL, nor require an application to be made. And there was no finding by his Honour that the Deed of Release of 2 June 2009 conferred such powers whether by itself or in combination with Mr Brook and the Obeids securing control and ownership of Loyal (see [433]), certainly not where funds to meet MMNL’s financial contributions were unavailable.

55    Further, the primary judge’s findings at [508] support the conclusion that, if Mr Brook had not sent the communications he did to the Department on 10 June 2009, MMNL would have done so, given MMNL’s earlier board resolution, the commercial developments (i.e. no finance) and no interest in coal projects ([432]).

56    On 19 June 2009, the Department informed Cascade that it had been selected as the successful EOI applicant in respect of the Mount Penny and Glendon Brook coal release areas.

57    On 27 October 2009, the Department granted ELs to Cascade over both the Mount Penny and Glendon Brook coal release areas.

(b)    The primary judge’s analysis

58    The question was whether the ACCC had established that any one or more of Loyal, Mr Brook, Buffalo, Voope or Locaway was in competition with Cascade in some relevant sense. His Honour pointed out that it was no part of the ACCC’s case that MMNL itself was a party to the EOI withdrawal understanding or was a party to the withdrawal provision.

59    His Honour considered that if those parties were competing for anything, they were competing for the opportunity to be invited by the Minister or his delegate to apply for and obtain an EL for coal in respect of mining activities in the Mount Penny and Glendon Brook coal release areas. His Honour said that the process into which MMNL, Cascade and the other EOI applicants had entered was a process which could only culminate in the grant of an EL. But the process was not directed to the obtaining of any other mining tenements subsequent to the grant of an EL although his Honour said that having an EL would have been a good starting point for procuring other relevant mining tenements.

60    His Honour pointed out that the EOI process was a closed tender process. Only companies which were invited to lodge an EOI could enter the process. And those invited companies which chose to enter that process had to comply with the EOI rules. The EOI process was not specifically authorised by any particular provision of the Mining Act. But his Honour said that it was a “perfectly” legal way for the Minister and the Department to award ELs for mining areas. But the process was not an invitation for tenders for an EL under s 14 of the Mining Act. A s 14 invitation could only occur after public notice had been given, but no such notice was given in the present case.

61    His Honour observed that according to the rules of the EOI process, the EOIs lodged by those companies which had been invited to participate were to be assessed by an evaluation committee. That committee was then to make recommendations to the Minister as to which company should be awarded the EL for each particular coal release area under consideration.

62    And in light of the committee’s recommendations, it was then incumbent upon the Minister to select the successful EOI applicant for each of the coal release areas in question and to formally provide his consent to each successful EOI applicant then making an application for an EL. We note that s 13(4) of the Mining Act provided that an application that related to land within a mineral allocation area could not be made, except with the consent of the Minister, in relation to any group of minerals that included an allocated mineral. It was intended that the Minister would communicate to the successful EOI applicants the fact that he had consented to those companies applying for an EL.

63    It was then envisaged that each of the successful EOI applicants to whom the Minister’s consent had been provided would then lodge an EL application. Such an application had to be made using the approved form for that purpose, which in 2009 was a Form 3.

64    It is appropriate to say something about ss 133(1) and (2) of the Mining Act which provided at the relevant time:

133    Nomination by applicant or tenderer

(1)    An applicant or tenderer for an authority may, by notice in writing lodged with the Director-General, nominate a person to whom the authority is to be granted.

(2)    The person nominated in an application or tender as the person to whom an authority is to be granted is, for the purposes of this Act, taken to be the applicant or tenderer for the authority.

…

65    The term “authority” as used in s 133 was defined as meaning “an exploration licence, an assessment lease or a mining lease”.

66    His Honour explained that in 2009 it seemed that there was an approved form for making a s 133(1) nomination, although the Department at that time also accepted such nominations by letter. A nomination under s 133 had to be made before the grant of the particular EL. This was because s 133 referred to “an applicant or tenderer for an authority” and not the holder of an issued EL. The deeming provision in s 133(2) only operated where a nomination was made in accordance with s 133(1). And the only person who could make a nomination under s 133(1) was an “applicant” or “tenderer” for an authority. But after the grant of an EL, the EL might be transferred pursuant to s 120 of the Mining Act, although as his Honour explained, in the case below the ACCC did not rely upon s 120.

67    His Honour recounted that the EOIs lodged by MMNL in the EOI process were not applications or tenders for an authority. Indeed, the invitations sent out by the Department in September 2008 and in January 2009 were not invitations to apply for an EL. They were invitations to submit an EOI so as to be considered as a company that might, after due evaluation, be invited with the Minister’s consent to apply for an EL. Therefore, as his Honour explained, as at 5 June 2009 when the process had not yet reached the stage where the Minister had consented to any company making an application for an EL, MMNL was not an “applicant” or a “tenderer” within s 133(1) of the Mining Act. Therefore, it could not at that time or at any earlier time make a valid nomination of Loyal under s 133(1). In our view his Honour’s legal analysis is correct.

68    So, as his Honour said, s 133(1) could not and did not authorise the nomination by MMNL of Loyal as the entity to which the ELs for Mount Penny and Glendon Brook should be issued and at no time on or before 5 June 2009 did anyone including MMNL have standing under s 133(1) to nominate any other entity as the entity to whom the ELs for those coal release areas should be granted.

69    Further, his Honour said that it was speculation whether, had the withdrawal provision not been entered into, Loyal would have ultimately been nominated as the holder of the relevant ELs. Indeed, his Honour considered that there was no real likelihood that such an outcome would have been achieved, given that MMNL had abandoned the project and given that the Obeids and their associates were never going to take over the EOIs themselves and had no realistic prospect of persuading anyone else of doing so other than Cascade.

70    For good measure, his Honour said that his construction of the relevant statutory provisions was confirmed by subsequent events and also by the practices of the Department. His Honour found that despite some apparent differences as to the practice of the Department between the evidence of Mr Bradley Mullard, Executive Director of Mineral Resources at the Department, and the evidence of Mr David Agnew, Manager Coal & Petroleum Titles and Systems at the Department, at the end of the day any significant differences disappeared. Overall, his Honour considered that the evidence established that the practice of the Department substantially accorded with the legislative scheme.

71    His Honour said that the award of the ELs for the Mount Penny and Glendon Brook coal release areas occurred only after the Minister had provided his s 13(4) consent to Cascade making an EL application, only after the Minister had informed Cascade that he had provided that consent and only after Cascade had lodged applications for ELs on Form 3 in each case. And once each Form 3 had been lodged, Cascade became an “applicant” for an “authority” within the meaning of s 133(1) and thereafter was permitted to nominate another entity as the party to whom the EL should be granted.

72    Taking into consideration the above analysis, his Honour went on to find that as at 5 June 2009 there was no actual or likely competition between Loyal or Voope on the one hand and Cascade on the other hand. He concluded that this was so for at least four reasons.

73    First, none of MMNL, Loyal or Voope had the financial resources or the willingness to satisfy the financial contributions to which MMNL had committed in its EOIs for the Mount Penny and Glendon Brook coal release areas, being $25 million and $5 million respectively.

74    Second, the power of nomination and the deeming effect of any properly authorised nomination pursuant to s 133 did not apply in the circumstances of the present case.

75    Third, in any event the EOI process was open only to a closed class of invited applicants who complied with the terms of the invitation and satisfied the evaluation criteria. But neither Loyal nor Voope ever satisfied those requirements.

76    Fourth, even if s 133 did apply, or if the practice of the Department otherwise permitted MMNL to nominate Loyal, it was still necessary for Loyal, as nominee, to comply with the conditions for the EOI and Loyal could never have done so.

77    His Honour referred to the fact that the ACCC endeavoured by relying upon s 133 to justify the proposition that prior to 5 June 2009 both Loyal and Cascade were competitors. But his Honour said that s 133 was not engaged in the present case and was never likely to have been engaged for the reasons that he explained and we have outlined above. That conclusion has not been challenged before us.

78    His Honour also referred to another pathway relied upon by the ACCC below being an aspect of the so-called practice of which Mr Mullard gave evidence. But his Honour said that to a large extent, he recanted that evidence. In any event, his Honour said that if the practice which he described was inconsistent with the legislative scheme, it had no validity. Further, his Honour said that the practice of the Department initially described by Mr Mullard was not applied in respect of any of the Mount Penny, Glendon Brook or Yarrawa coal release areas. For present purposes we can put this pathway to one side as it has not been persisted with before us.

79    Further, his Honour referred to the ACCC’s submission that there was no need for Loyal to be a current applicant in the EOI process. And as far as it went, as a matter of generality, his Honour accepted that submission. But his Honour said that the only way that Loyal could ever have entered into competition with Cascade for the opportunity to be invited by the Minister or his delegate to apply for and obtain an EL for coal in the Mount Penny and Glendon Brook coal release areas was to be nominated by MMNL once MMNL had achieved the status of “applicant” or “tenderer” for the purposes of s 133(1). But that was a status that MMNL never achieved. Further, for the reasons which his Honour explained, there was no likelihood that Loyal would ever have been so nominated at the first legally available opportunity, that is, after the Minister had granted his consent to MMNL under s 13(4) to apply for an EL in respect of the Mount Penny coal exploration area and after MMNL had lodged a completed Form 3 in respect of that proposed EL. Further, his Honour said that it mattered not that MMNL had in fact tried to nominate Loyal at an earlier point in time. But in any event, as his Honour said, that attempted nomination was rebuffed by the Department as being premature.

80    Accordingly, his Honour concluded that at all relevant times, the only competitors or likely competitors which Cascade had in respect of the Mount Penny and Glendon Brook coal release areas were those companies who had been invited to lodge an EOI in the EOI process. And his Honour concluded that Loyal was not such a competitor and nor was Voope. His Honour said that neither of those companies were ever likely to be such competitors. Further, given the structure of the EOI process, his Honour concluded that competition was very likely going to cease, in any event, once the stage was reached where the relevant Form 3 was lodged by the successful applicant.

81    In summary his Honour said that the ACCC had failed to establish that the relevant understanding was arrived at between persons any two or more of whom were competitive with each other at the relevant time.

(c)    ACCC’s submissions

82    The ACCC contends that the primary judge adopted an approach to competition that was unduly narrow in considering whether as at 5 June 2009 Cascade on the one hand, and Voope and Loyal on the other hand, were competitive with or likely to be competitive with each other within the meaning of s 4D(1)(a) of the TPA. We would say at the outset that in our view his Honour’s analytical framework substantially reflects the way the ACCC put the case below. Its position before us seems to have substantially evolved. Let us explain.

83    For convenience, s 4D at the relevant time provided:

4D Exclusionary provisions

(1)     A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if:

(a)     the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and

   (b)     the provision has the purpose of preventing, restricting or limiting:

(i)    the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or

(ii)    the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions;

by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.

(2)    A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if, the first-mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates.

84    The ACCC contends that as competition is a process directed to informing and enforcing resource allocation decisions, identification of the persons who are competitive or in competition requires identification of those persons whose rivalrous activities have a capacity to constrain the decision-making of other firms. And it says that such a constraint is typically evidenced through the impact that one firm has on another’s decision making as to products, services or prices, although this need not always be the case. It says that in the present case, the clearest evidence of the constraint that Loyal and Voope imposed on Cascade’s decision-making was Cascade’s willingness to grant valuable rights to the Obeids and Mr Brook in exchange for the withdrawal of the MMNL EOIs.

85    The ACCC makes the point, which we of course accept, that where there is an anti-competitive arrangement in place, competition is likely to be attenuated. Accordingly, where parties are engaging in anti-competitive conduct, competition may be potential rather than actual because the conduct of the parties may be effective to remove competition that would otherwise occur. So as observed in Australian Gas Light Company v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317 (AGL v ACCC) at [350] per French J, the “theatre of competition” is made up of “real actors and shadow actors”, with the latter including potential new entrants and rivals. We will return to this passage later.

86    The ACCC accepts that the primary judge correctly identified (at [494]) the relevant object of competition in the present case as the opportunity to be invited by the Minister or his delegate to apply for and obtain an exploration licence (EL) for coal in respect of mining activities in the Mount Penny and Glendon Brook coal release areas. But the ACCC says that assessing whether Cascade on the one hand, and Voope and Loyal on the other hand, were competitive or likely to be competitive with each other for that object required consideration of whether each had the capacity to affect the decision making of the other, including as to the disposition of resources, to obtain that goal.

87    The ACCC points out that each of MMNL and Cascade had lodged EOIs for ELs for the Mount Penny and Glendon Brook coal release areas. Importantly, so the ACCC says, MMNL had also lodged EOIs for a number of other coal release areas, including Yarrawa. Further, MMNL’s EOIs were attended with significant obligations to Voope. And those obligations arose initially from the Voope Option Deed, which in addition to giving Voope an option over 80% of the shares in Loyal (then known as Monaro Coal Pty Ltd), obliged MMNL to ensure that all applications for “Tenements” (as defined, ELs) were made through Loyal, required MMNL to act in accordance with the directions or suggestions of Voope in lodging any application for an EL or in responding to any request for information from or correspondence from the Department, and obliged MMNL not to withdraw any application for an EL without the consent of Voope. The ACCC says that the Voope Option Deed was designed to place Voope in control of the EOIs lodged by MMNL. Consistently with the Voope Option Deed so the ACCC says, on 17 March 2009 MMNL advised the Department that should it be successful in its EOI for the Mount Penny coal release area, it was its intention that the EL should issue to Loyal (then Monaro Coal Pty Ltd).

88    Further, the ACCC says that Voope’s control of the MMNL EOIs was further secured by the Deed of Release entered into between Voope and MMNL on 2 June 2009. According to the ACCC the purpose of that document, which purpose it says was achieved, was for Voope to gain ownership and control of Loyal and the EOIs lodged by MMNL in respect of the coal release areas, including but not limited to Mount Penny and Glendon Brook. The Deed of Release followed from MMNL’s decision not to pursue the EOIs in its own right, and instead was designed to pass those rights on to Voope/Loyal in exchange for an indemnity against its obligations to the Department and a Loyal success fee. The Deed of Release transferred all the shares in Loyal (then Monaro Coal Pty Ltd) to Voope and obliged MMNL to ensure that any EL was granted in the name of Loyal, including by performing all acts and things and executing documents to bring that about. This was in consideration for payments by Voope to MMNL of $1, and $300,000 if Loyal was awarded an EL. And Voope indemnified MMNL against all claims and liabilities arising from Loyal becoming the successful bidder in respect of a relevant EL.

89    We will return to the terms of the Deed of Release later.

90    Further, according to the ACCC, as at 2 June 2009 the situation was as follows. Cascade was a participant in the EOI process for the opportunity to apply for and obtain ELs for Mount Penny and Glendon Brook. MMNL was also a participant in that process and in the equivalent process for other coal release areas, but its EOIs were subject to the control of Voope and it was obliged to ensure that any ELs were granted to Loyal. And although MMNL was the named applicant in the EOI process, it could never consistently with its contractual obligations obtain an EL. Instead, it was required to nominate Loyal as the entity to receive the EL. So, all of MMNL’s activities in that regard were under the direction of Voope according to the ACCC. This is a contentious proposition to which we will return later.

91    So, the ACCC says that whilst MMNL could not obtain an EL, Loyal was in the running to obtain ELs for various coal release areas. Indeed, it says that Loyal subsequently obtained an EL for Yarrawa by the actions of MMNL consistent with its contractual obligations to Voope.

92    The ACCC says that Yarrawa was relevantly analogous to Mount Penny and Glendon Brook with reference to four matters. First, MMNL was the Department’s preferred EOI applicant. Second, MMNL’s EOI bid required the payment of a substantial additional sum being $2 million within 30 days of consent being given to apply for an EL. Third, neither the Obeids nor Mr Brook had an intention to fund the additional sum themselves. Fourth, MMNL had resolved not to pursue the application.

93    The ACCC says that rather than funding Yarrawa themselves, the Obeids and Mr Brook first negotiated with Cascade, and then with the underbidders in the EOI process, and reached an agreement with the underbidder Coalworks whereby it provided the $2 million, and Voope took an interest in the resulting structure. In that regard, so the ACCC submitted, it was never the intention of the Obeids or Mr Brook to provide significant funding themselves for any of the coal release areas. Rather, so the ACCC says, the intention was that Voope’s interest would be reduced upon a principal investor (i.e. source of funding) being identified.

94    The ACCC has sought to obtain considerable leverage before us utilising Yarrawa. And it contends that the significance of Yarrawa was substantially overlooked by the primary judge. It says that Yarrawa provided an obvious counterfactual to the Buffalo agreement. According to the ACCC, Yarrawa confirmed that Loyal was at least in the running to obtain an EL for Mount Penny and Glendon Brook, as it did with Yarrawa, were it not for the withdrawal provision. We disagree and will return to this later.

95    By reason of the foregoing the ACCC says that Cascade on the one hand, and Voope and Loyal through the MMNL EOIs on the other, can be said to have been actual rivals in the competition for the opportunity to be invited by the Minister or his delegate to apply for and obtain an EL for coal in respect of the Mount Penny and Glendon Brook coal release areas. But the ACCC also says that it only needs to show that but for the entry into of the Buffalo agreement, such competition was likely in the sense of a real chance. The ACCC says that each entity had the capacity to affect the decision making of the other as to the disposition of resources by the other to obtain that goal.

96    Let us elaborate further on some aspects.

97    The ACCC says that the rivalry of Cascade on the one hand, and Voope and Loyal on the other, was reflected in the primary judge’s finding that the ability of Mr Brook and the Obeids to control the MMNL EOIs for Mount Penny and Glendon Brook and procure their withdrawal “was a valuable bargaining chip in the negotiations with Cascade” ([424]). The ACCC says that it could only have been a valuable bargaining chip if the presence of the MMNL EOIs were a threat to Cascade. It says that the capacity of the MMNL EOIs (and Voope’s control of them) to affect Cascade’s decision making as to its disposition of resources was reflected in the concessions Cascade made in the Buffalo agreement to obtain the withdrawal of the MMNL EOIs. Indeed, the ACCC points out that as the primary judge observed at [483], that was “fairly much all” Cascade obtained under the Buffalo agreement. And in return for it, Cascade conceded to Buffalo a 25% interest in the “joint venture” it purported to create.

98    Now the ACCC says that the primary judge concluded that Cascade was not competitive with Voope or Loyal as at 5 June 2009 for the opportunity to be invited by the Minister or his delegate to apply for and obtain an EL for coal in respect of the Mount Penny and Glendon Brook coal release areas within the meaning of s 4D(1)(a) of the TPA even though:

(a)    MMNL was the Department’s preferred EOI applicant for both the Mount Penny and Glendon Brook coal release areas;

(b)    Voope had by contractual means control over the MMNL EOIs for the benefit of Loyal;

(c)    MMNL could not consistently with its contractual obligations obtain an EL, but Loyal could; and

(d)    Loyal did in fact acquire an EL for Yarrawa.

99    And the ACCC says that in reaching that conclusion, the primary judge referred to three matters. First, he suggested that Voope and Loyal were not participants in the EOI process, and only relevantly Cascade and MMNL were. Second, he said that as at 5 June 2009, MMNL had not been successful in the EOI process and therefore was not an “applicant” or “tenderer” with the capacity to nominate another person (Loyal) under s 133 to be an applicant or tenderer for an EL. Third, he said that none of MMNL, Voope and Loyal (including Mr Brook and the Obeids) had the ability or willingness to satisfy the financial contributions required by the MMNL EOIs so that Loyal could be nominated as the holder of the ELs.

100    But the ACCC says that in treating each of these matters as negativing the relevant conclusion, the primary judge erred.

101    First, the ACCC says that it is artificial to assess the relevant “theatre of competition” and its constituent actors for the purposes of the then TPA by reference to the confines of the administrative structures used by the Department under the Mining Act for the assessment of EOIs and the granting of ELs. Now before us at least, the ACCC accepted that only relevantly Cascade and MMNL were direct participants in the EOIs as at 5 June 2009. But the ACCC says that after 2 June 2009, at the latest, MMNL’s EOIs were under the complete control of Voope, and MMNL was obliged to ensure that any EL was granted to Loyal. And MMNL could not, consistently with its contractual obligations, obtain the EL. The ACCC says that to leave these matters out of account when assessing the existence of competition was to neglect commercial reality. It was also said to neglect the key matter that provided what the primary judge found to be the “valuable bargaining chip” which explained Cascade’s entry into the Buffalo agreement. The ACCC says that Cascade’s entry into the Buffalo agreement, and its requirement that Buffalo and its associates and related parties, which included Mr Brook, Loyal and Voope, withdraw and not pursue EOIs for Mount Penny and Glendon Brook coal release areas, reflected Cascade’s perception of Loyal and Voope as rivals in the competition for the opportunity to seek and obtain ELs for those areas.

102    Second, the ACCC says that whilst it may be accepted that as at 5 June 2009 MMNL was not in a position to immediately nominate Loyal as the applicant for an EL, that is not to the point. It says that nobody could obtain an EL immediately. It says that Cascade was in the running to obtain an EL in due course, as was Loyal. And they were competing for that prize.

103    Further, the ACCC says that to end the analysis of competition at that point is to erroneously adopt the heretical perspective of a snapshot view. It says that competition includes the potential rivalry of potential participants. So far, so good in our view. The ACCC then says that what mattered was the capacity of Loyal’s potential rivalry to affect the decision making of other rivals for the ELs for Mount Penny and Glendon Brook. It says that the terms of the Buffalo agreement demonstrated that it had that capacity.

104    At this point we would note that this theme seems to have evolved more before us than before the primary judge. But in any event, the capacity of one rival to affect the decision making processes of another rival can only be part of the story in addressing competition.

105    Third, the ACCC says that the primary judge’s focus on whether MMNL, Loyal or Voope had the intention or capacity or was likely to satisfy the financial contributions attendant on the MMNL EOIs for Mount Penny or Glendon Brook coal release areas when assessing the relevant competitors was misplaced. It says that as to intention, an uncommunicated intention of a party to a bid rigging arrangement not to be successful in the bid does not negative its status as a competitor; see J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 at [111] to [112] and Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243. Further, it says that in any bid rigging scenario, one or more bidders will intend to lose the bid so as to give effect to the anti-competitive arrangement or understanding. But that does not mean that they are not competitors. It says that the intention of the Obeids and Mr Brook was affected by their desire to enter into an arrangement, including a bid rigging arrangement, with Cascade in relation to Mount Penny. It says that at the relevant time, the Obeids and Mr Brook saw a bid withdrawal arrangement with Cascade as the most likely pathway to obtaining an interest in a coal mine. Generally, the ACCC says that where parties are intent upon bid rigging, it is not appropriate to assess whether they are competitors by reference to whether they have a present intention to compete.

106    Now all of this may be so. But here the question is not just the intention to compete but the capacity to compete. Moreover, some precision is required as to what precisely is the subject matter or focus of the competition in question.

107    Further, the ACCC says that to assess competition by reference to the probabilities of success is erroneous. Taken to its logical conclusion, the ACCC says that it would mean that two underbidders who agreed between themselves not to compete in a tender process would not relevantly be in competition with each other as neither would be likely to win the tender. Generally, it says that the likelihood of winning is not determinative of whether one is competing. For example, a person who is coming last in a race and unlikely to win is nevertheless a competitor. Likewise, assessed as at 5 June 2009, it says that Loyal was not likely to obtain the EL for Yarrawa. Nevertheless, it was in the running for that EL and it ultimately obtained it. Accordingly, it was a competitor for that EL.

108    The ACCC points out that there is US authority to the effect that parties to a bid rigging process may be competitors for the purposes of the Sherman Act (15 USC §1) even though one of them is unable to perform the bid; see United States v Reicher 983 F 2d 168 (10th Cir, 1992) at 172 where it was said that “the determination of a per se antitrust violation depends on whether there was an agreement to subvert the competition, not on whether each party to the scam could perform”. It says that this is also consistent with the nature of competition as explained by the then Trade Practices Tribunal in Re Queensland Co-Operative Milling Association Ltd (1976) 25 FLR 169 at 187 to 189.

109    Generally the ACCC says that as competition is concerned with the capacity of rivalrous conduct to affect the business decision making of rivals, a person is not denied the status of a competitor merely because its competitive efforts are unlikely to succeed, or even if they are doomed to failure. And it says that this is also consistent with the per se nature of ss 45(2)(a)(i) and (2)(b)(i) contraventions, which do not require an assessment of any likely impact on competition.

110    Further, the ACCC says that the primary judge’s conclusions of “no real likelihood” and “absolutely no prospect” (at [508] and [524]) were overstated in any event. It says that as the primary judge found, as at 5 June 2009 Mr Brook and the Obeids (through Voope) had control of the MMNL EOIs and knew that MMNL was the favoured EOI applicant for Mount Penny and Glendon Brook. The ACCC says that if MMNL’s EOIs were not withdrawn, the likelihood was that MMNL would have been chosen by the Department as the successful EOI applicant for those areas. It says that MMNL would likely have been advised of this on or about 19 June 2009, and on or about 10 August 2009 would have been notified that it had consent under s 13(4) of the Mining Act to apply for an EL for the Mount Penny and Glendon Brook coal release areas ([346]). It says that MMNL would then have been empowered to nominate Loyal as the applicant for the ELs under s 133 of the Mining Act. And MMNL would also have had 30 days from 10 August 2009 to meet the required financial contributions for the MMNL EOIs ([176]).

111    Now the ACCC accepted, at least before us, that the financial contributions for the Mount Penny EOI were large (a total of $25 million). And the ACCC had to accept that Mr Brook’s efforts to raise finance for the MMNL EOIs had to that point utterly failed. But the ACCC says that after (and assuming) MMNL’s selection as the successful EOI applicant, the Obeids and Mr Brook (through Voope) would have had a more valuable asset with which to seek financiers or joint venture partners to pursue the ELs for Mount Penny and Glendon Brook. And they would have had the period from 19 June 2009 to around 10 September 2009 to do so. The ACCC says that it is at least possible in those circumstances that rather than abandoning the MMNL EOIs for the Mount Penny and Glendon Brook coal release areas, Mr Brook and the Obeids would have attempted to reach an arrangement with a third party to that effect, as they did with Yarrawa. And it says that those third parties may have included the unsuccessful EOI applicants for Mount Penny and Glendon Brook including Cascade. The ACCC says that this would all have had the advantage of the resolution of what Mr Brook described to the MMNL Board as a “chicken and egg” problem, that is, that without being the preferred EOI applicant it was difficult to attract financial commitments. The ACCC says that there was evidence before the primary judge that Mount Penny was considered an attractive potential coal resource. And in the second half of 2009, ELs for coal were in high demand. The ACCC says that success would not have been assured or even likely. But as the experience with Yarrawa demonstrated, the ACCC says that it was impossible to rule it out entirely, which the primary judge appears to have done.

112    We must say at this point that such a submission is rose-tinted and divorced from the commercial realities and the meaningful opportunities that his Honour had to consider. Moreover, the finance necessary to make the Yarrawa payment is of a lesser and different order of magnitude.

113    Finally, the ACCC says that the conclusion of the primary judge, that even if the Buffalo agreement had not been entered into it was inevitable that the MMNL EOIs for the Mount Penny and Glendon Brook coal release areas would not have proceeded, was not one that depended on his view as to the credibility of any witness. It was an inference from facts found or undisputed. So although the primary judge’s view was entitled to respect and weight, it says that if we are persuaded to the contrary, we should not shrink from giving effect to our own conclusion. True enough, at least on this part of his Honour’s analysis.

114    In summary, the ACCC says that the primary judge erred in concluding that Cascade on the one hand, and Voope and Loyal on the other, were not competitive or likely to be competitive with each other from 2 June 2009 for the opportunity to apply for and obtain an EL for the Mount Penny and Glendon Brook coal release areas. It says that as at 5 June 2009, nothing in relation to MMNL’s EOI applications for Mount Penny and Glendon Brook had come to an end, except by the artificial means of a bid rigging arrangement whereby it was agreed that MMNL’s bid would be withdrawn, as it subsequently was on 9 June 2009. It says that in the absence of the withdrawal provision, the relevant parties were competitive with each other.

(d)    Analysis

115    The ACCC’s case at first instance that Loyal and Cascade were competitive with each other or were likely to be competitive involved various arguments. Some arguments were directed to establishing that Loyal, by the nominations of 1 and 2 June 2009 or by Department practices, became an applicant for the Minister’s consent to apply for an EL. But these arguments were rejected below and have not been pursued on appeal. Another argument below rested on the alleged control which Voope had under the Deed of Release of 2 June 2009, which it was said made Loyal a competitor with Cascade for the grant of an EL. But the primary judge rejected this argument for two reasons.

116    First, it required the ACCC to establish that Voope’s alleged control of MMNL’s EOI applications meant that it could compel satisfaction of the relevant contingencies, particularly nomination of Loyal by MMNL following lodgement of applications by it and payment of the financial contributions offered under its EOIs. But the primary judge held that this had no prospect of occurring.

117    Second, at the point in time when MMNL could legally nominate Loyal, being after its funding contingencies were satisfied, Cascade was not involved in competition with any party. MMNL would have won the competition to apply for the Minister’s consent and obtain an EL for coal. Cascade would have lost. And the competition would have ceased once a Form 3 application for an EL was lodged.

118    We see little difficulty with his Honour’s reasons in this respect which were cast within the analytical framework reflecting how the ACCC put the case below.

119    The ACCC before us has put its case on various related bases in support of the proposition that as at 5 June 2009 Loyal/Voope was competitive with Cascade. But there are difficulties with the ACCC’s position as we have summarised above.

120    First, Loyal and Voope were never participants in the EOI process, which determined who would be invited to apply for and obtain an EL, being the competition identified by the primary judge. And it was within the EOI process that the relevant competition for the Minister’s consent to apply for and obtain an EL occurred. In our view, the more direct and immediate competition was for the Minister’s consent to apply for the EL. Without that consent there could be no EL. And it is not in doubt that only Cascade, MMNL and other EOI applicants were competitors for the opportunity to be invited by the Minister or his delegate to apply for and obtain an EL for coal in respect of mining activities in the Mount Penny and Glendon Brook coal release areas.

121    Further, we agree with the respondents that the fact that Loyal might be a beneficiary of MMNL’s success in obtaining the Minister’s consent does not entail that Loyal was in competition with the other EOI applicants for consent in the period in which competition existed. Loyal could not obtain the Minister’s consent. And neither Voope nor Loyal were recognised by the Department as participants or as having any rights in the EOI process.

122    We agree with the respondents that the competition described by the primary judge for “the opportunity and the ultimate prize” ([494]) was not at large. It was governed by the terms of the EOI process, the Department’s practice and the Mining Act. Section 13(4) of the Mining Act provided that an applicant for an EL for coal had first to obtain the consent of the Minister.

123    As we have said, the EOI process involved a closed tender. Only companies invited to do so could lodge an EOI. And invited companies that participated in the process by lodging an EOI had to comply with the rules of the EOI. In particular, participants had to pay any voluntary financial contributions offered in their EOIs within 30 days of the Minister granting consent to apply for an EL for the relevant coal exploration area. Applicants who had submitted an EOI were to have their bids assessed by the evaluation committee, which was then to recommend to the Minister who should be the successful applicant. The Minister would then provide consent under s 13(4) to a successful applicant to apply for an EL. The successful EOI applicant to whom the Minister’s consent was provided would apply for the EL by lodging a Form 3. A successful applicant who had lodged an application and paid any financial contributions within 30 days of the Minister’s consent could nominate a party to which the EL should be granted.

124    Of course, Cascade and MMNL had lodged EOIs and were accordingly applicants. And competition in the EOI process was between applicants. But Voope and Loyal had not lodged EOIs, and nor had they been invited to do so. Loyal was not recognised by the Department as participating in the EOI process, and the Department did not prior to 9 June 2009 regard Loyal as a competitor for Mount Penny. We would note that the views of “market participants”, indeed including the Department here, are not irrelevant to assessing whether parties are competitors.

125    So, only Cascade, MMNL and other applicants who had lodged EOIs could potentially succeed to obtain the consent of the Minister to apply for an EL. And only a party who obtained the Minister’s consent to apply for an EL could lodge an application for an EL.

126    Moreover, as we have already implicitly indicated, the ACCC’s submission that the power of nomination arose once an applicant was granted formal consent under s 13(4) of the Mining Act is not correct. A party granted the Minister’s consent had to lodge a Form 3 and apply for the EL before it could nominate. But MMNL would not apply for an EL, and then nominate Loyal, without first being satisfied that financial contributions involved with the Form 3 application were paid, as occurred with Yarrawa.

127    Further, once the Minister granted consent to apply for an EL, and a Form 3 application was lodged by a successful applicant, the competition between applicants in the EOI process ceased. And only the successful party could apply for the EL.

128    In summary, we agree with the primary judge that the relevant competition occurred only in the EOI process. Only an applicant in the EOI process could obtain an invitation, namely, consent under s 13(4) from the Minister to apply for an EL, a step necessary before an application for an EL could be made.

129    Now the ACCC has, perhaps understandably as it does not help it, significantly downplayed the competition for the Minister’s consent, and rather emphasised the competition for the EL. But we agree with the respondents that the important aspect of the competition was to obtain the Minister’s consent. Without that consent a party could not apply for, and thereby obtain, an EL. And plainly put, if Loyal could not compete for that consent, but Cascade could compete, the two were not competitive. As we say, Loyal could not compete for the Minister’s invitation. Further, any nomination of Loyal could only be by MMNL. But this could only occur after Cascade had ceased to be a competitor.

130    Second, let it be assumed that a broader view of competition is appropriate. In our view, on the evidence before his Honour, as at 5 June 2009 the commercial reality was that Loyal was neither a potential rival, nor likely to be competitive with Cascade, but for the withdrawal provision. As his Honour in substance found, neither MMNL nor Voope/Loyal had any intention of proceeding with the MMNL EOIs for the Mount Penny and Glendon Brook coal release areas. They lacked the financial means to do so. Those EOIs would not have likely resulted in Loyal obtaining ELs for Mount Penny and Glendon Brook had MMNL’s EOIs not been withdrawn on 9 June 2009.

131    Loyal’s ability to secure an EL was always subject to a number of contingencies, or steps, namely:

(a)    MMNL obtaining the Minister’s consent in the EOI process;

(b)    MMNL lodging an application for the ELs in the coal mineral area for which it had consent;

(c)    MMNL paying the voluntary financial contributions offered in its EOI, whether from its own funds, or funds provided by others, within 30 days of the Minister granting consent to apply; and

(d)    MMNL then nominating Loyal as the holder of the EL title.

132    But we agree with the respondents that the Deed of Release did not allow Voope to compel MMNL to lodge the application in (b) without at the least Voope providing funds to enable MMNL to meet the obligations in (c).

133    It is worth setting out various provisions of the Deed of Release and to note the following:

(a)    Clauses 2, 3, 4 and 5.1 provided:

2.    OBLIGATIONS OF MONARO

2.1    Monaro will, before 5.00pm on Tuesday 2 June 2009, notify the Department the following:

(a)    That any coal exploration areas are to be awarded to the entity known as Loyal Coal Pty Ltd.

(b)    That to comply with the Department’s requirements that all financial obligations are paid in 30 days, Monaro is transferring its interest in Loyal Coal to Voope.

(c)    Monaro will communicate to the Department that Voope is a financial partner.

(d)    It is intended that Monaro will provide Voope with consultancy services via a management agreement should Loyal Coal be awarded any Exploration Licences.

2.2    By 6pm on 1 June 2009, change the name of Monaro Coal Pty Ltd to Loyal Coal Pty Ltd.

2.3    Monaro will not knowingly and intentionally in any way, either by act or omission, do anything to jeopardise Loyal Coal from becoming the Successful Bidder.

2.4    Monaro will not communicate with the Department either verbally or in writing without the express permission of Loyal Coal.

2.5    Upon Monaro advising the Department in accordance with Clause 2.1 above, Monaro will without delay, transfer all of its shares in Loyal Coal to Voope, Monaro agrees and undertakes that it will not transfer, assign or deal with the shares of Loyal Coal in any way whatsoever.

3.    CONSIDERATION

3.1    In consideration for Monaro transferring all of its shares in Loyal Coal to Voope, Voope will pay Monaro the sum of $1.00 and Voope will indemnify and keep indemnified Monaro and its directors from and against all claims, costs, liabilities or causes of action arising from Loyal Coal becoming the Successful Bidder (and without limiting the generality of the foregoing, Voope will indemnify Monaro from all financial obligations to the Department or any other government instrumentality arising there from).

4.    OBLIGATIONS OF VOOPE

4.1    Upon Loyal Coal being awarded any Exploration Licence which it subsequently takes up, Voope will pay Monaro the sum of $300,000.00 (three hundred thousand dollars) within 60 days.

5.    RELEASE

5.1    Immediately upon Monaro transferring all of its shares in Loyal Coal to Voope, Monaro and Voope mutually agree to terminate the Option, as varied.

(b)    Relevantly to cls 2 and 3, “Successful Bidder” was defined in cl 1.1 to mean “the applicant who is awarded one or more exploration licences in respect of the EOI”. The term “EOI” is defined consistently with the process that we have previously described.

(c)    Further, cl 7.1 provided:

7.1    Further acts

The Parties will:

(a)    promptly do and perform all acts and things, including execute all documents, as may from time to time be required, and

(b)    at all times act in good faith,

for the purposes of or to give effect to this Deed.

134    It is convenient to make a number of observations at this point. There is nothing in cl 2.1 that would compel MMNL to lodge an application for the ELs for which it had consent. Clause 2.1 simply requires MMNL to make various notifications to the Department concerning Loyal and Voope. It does not impose any substantial obligation to lodge an application, let alone where it has not been put in funds. Further, cls 2.3 and 7.1 in combination do not impose a positive obligation to lodge an application for the ELs, particularly where MMNL is not putting in funds. Further, cl 2.4 merely only in substance prevents the withdrawal of the EOIs. It does not compel the filing of an EL particularly without funds. Finally, cl 3.1 does not in terms impose any such positive obligation.

135    In our view the ACCC has overstated the situation as to Voope having “complete control” of MMNL’s EOIs where all of MMNL’s activities relating to obtaining an EL were under Voope’s control.

136    Further, MMNL’s board of directors, being aware of the obligations which would arise from MMNL’s EOIs and wary of solvency and reputational issues, had resolved to withdraw those EOIs on 22 May 2009, deciding to abandon MMNL’s interest in coal and revert to uranium. As his Honour found, by the time of that resolution, MMNL was not in a position to progress its EOIs and had no prospect of obtaining the necessary funds to do so. Therefore, irrespective of Voope’s alleged “control”, MMNL could not meet a fundamental requirement of the EOI bidding process, namely compliance with the terms of the EOIs it had submitted by paying the financial contributions within 30 days of the Minister’s consent being granted to MMNL to apply for ELs for Mount Penny and Glendon Brook. In such circumstances, the commercial reality was that by 5 June 2009, MMNL had ceased to be a competitor or likely competitor.

137    Further, neither Voope nor Loyal had any realistic prospect of persuading others to take over MMNL’s Mount Penny and Glendon Brook EOIs. His Honour put it in terms that there was “no chance” of Mr Brook raising the necessary funds ([523]). There was thus “absolutely no prospect” that Voope or Loyal “would pursue the MMNL EOIs” ([524]). In those circumstances, his Honour was correct to conclude that the control alleged by virtue of the Voope Option Deed or the Deed of Release could never result in Voope causing MMNL to nominate Loyal as applicant for the ELs. And as we have indicated, MMNL would not lodge a Form 3 application and nominate Loyal without funds being available. And Mr Brook’s evidence was that MMNL would have required bank cheques before it was prepared to lodge the Form 3 for Yarrawa.

138    Further, contrary to the ACCC’s submission, the 30 day timeframe for MMNL to make the payments it had promised to do in its EOIs did not expire around 10 September 2009. Rather, had the evaluation committee’s recommendations of 6 May 2009 been implemented, the Minister’s formal consent to MMNL applying for ELs would likely have occurred by mid-June 2009, not 10 August 2009. The thirty day period after that formal consent would have expired in mid-July 2009. Contrastingly, 10 August 2009 was the date formal consents were issued, after the reconvening of the evaluation committee on 19 June 2009, nearly seven weeks after the committee’s original decision on 6 May 2009.

139    More generally, we accept that whether parties are competitive with each other or likely to be competitive in the future involves a question of fact. But this question must have regard to commercial reality and the context in which the suggested competition occurs. In relation to the contingencies which have been identified, if Loyal had no real commercial prospect of securing a nomination by MMNL, then it could not be competitive with Cascade for the opportunity to obtain an EL. And this is so even on the broader conception of competition advanced by the ACCC.

140    Third and as we have already indicated, any entitlement Loyal potentially had to be nominated by MMNL as the holder of an EL only arose after the EOI process had ended and MMNL had been successful. But then competition with Cascade would have ceased. If MMNL’s EOIs were not withdrawn, MMNL would have been the preferred applicant. But if MMNL nominated Loyal by filing a Form 3 application, then by definition at that stage any competition for ELs for Mount Penny and Glendon Brook involving Cascade would have been over.

141    Fourth, in relation to the case advanced by the ACCC before us that Cascade was competitive with Loyal because it was a potential rival who affected Cascade’s decision-making, it would seem that on its case below, little attention or emphasis was given to this by the ACCC before the primary judge.

142    Apparently it was never put to the Cascade parties in terms that they were so concerned about this alleged potential rivalry from Loyal that they surrendered a 25% interest in the joint venture solely in return for the withdrawal. Further, as the respondents have submitted, it would seem that Mr John McGuigan was cross-examined on a different basis. It was put that the Buffalo agreement and the Landowners agreement were a package and that the decision to give Buffalo a 25% interest in the joint venture would not have occurred without the Landowners agreement. Further, such a case on appeal invites us to infer that the purpose of the Cascade parties and Mr Poole differed from what the primary judge found. In substance this can be seen as an attack on credit-based findings of fact, which has its obvious difficulties.

143    In all the circumstances and contrary to the ACCC’s submissions, in our view the primary judge cannot fairly be criticised for failing to address an argument not clearly put below.

144    But in any event, the ACCC’s assertion in the context of assessing competition or likely competition that “what matters is the capacity of Loyal’s potential rivalry to affect the decision making of other rivals for the ELs for Mount Penny and Glendon Brook” is problematic in both its generality and incompleteness.

145    Let it be assumed that the relevant acquisition of services from the Crown or the supply of services to the Crown is taken to be that alleged by the ACCC. And to keep the matter simplified for illustrative purposes, let us deal with the alleged competition in terms of the supply of services. In this respect, the ACCC alleged in its further amended statement of claim (at [97]):

The services which Cascade and Loyal, and/or Cascade and Voope, competed to supply or were likely to compete to supply included:

vi.    giving the Crown the valuable opportunity to grant an Exploration Licence in respect of the Mount Penny and Glendon Brook Coal Release Areas under the Mining Act 1992 (NSW), with conditions, undertakings and requirements to be performed by the licensee;

vii.    the performance of the conditions, undertakings and requirements attached to an Exploration Licence in respect of the Mount Penny and Glendon Brook Coal Release Areas, including paying or negotiating for the payment of additional financial contributions referred to at p 10 of the document titled Expression of Interest Information for the Mount Penny and Glendon Brook Coal Release Areas published by the Crown, dated January 2009;

viii.    the exploration of each of the Mount Penny and Glendon Brook Coal Release Areas;

ix.    the development and operation of a mine and related infrastructure in each of the Mount Penny and Glendon Brook Coal Release Areas; and

x.    the payment of royalties to the Crown.

146    As the fourth and eighth respondents correctly submitted, competition is a dynamic process which can be generated by market pressure from alternative sources of supply. But a source of supply is not alternative in the requisite sense if the putative supplier lacks both the financial capacity and the intention to supply, and is perceived as so lacking. In such a case, the putative alternative supplier is incapable of generating meaningful market pressure and is not relevantly in competition with the subject firm.

147    It is not in doubt that the economic meaning of “competition” must be applied in a practical way to accommodate the concerns of the legislation with business and commerce. Any analysis of the competitive process is to be approached as a practical matter of business and is not to be divorced from the commercial context of the conduct in question. So assessed, the essence of competition is rivalrous behaviour in the course of which the matching of supply with demand occurs. But where an alleged rival has neither the resources nor the intention to engage in the process of supply and demand, such rivalrous behaviour is absent.

148    Now we accept that likely competition may be established by showing a real chance of competition. But the real chance must be commercially relevant or meaningful. A mere or theoretical possibility is not sufficient. In sum, the ACCC’s evolved case before us rises no higher.

149    As the respondents rightly point out, the commercial reality is that Loyal and Voope lacked the financial resources and intention to engage in the ACCC’s so-called actual or potential rivalry. And it is inapt for the ACCC, as the respondents contended, to seek to test the existence of competition by reference to a proposition expressed at a level of generality which leaves out of account Loyal/Voope’s financial resources and intention. By focusing on the possible effect of Loyal/Voope’s conduct upon the decision-making of others, the ACCC’s approach incorrectly treats a merely theoretical possibility as a practical reality and divorces the impugned behaviour from its commercial context.

150    Further, cases such as J McPhee & Son (Australia) Pty Ltd v ACCC and ACCC v Yazaki Corporation are of little assistance. Whether a lack of financial resources or a lack of intention on the part of one alleged competitor alone or in combination with another or other considerations precludes a finding of competition depends upon the circumstances. The question is one of fact. Further, the authorities prayed in aid by the ACCC are not cases in which one putative competitor lacked both the financial capacity and the intention to compete at all, in any relevant field of rivalry, with the other alleged competitor. As the respondents point out, each was a case in which established and well-resourced competitors in a particular industry engaged in an anti-competitive arrangement with respect to a particular tender process or in respect of a particular supply contract. The question was whether an absence of intention to succeed on the part of one competitor in that specific process or in respect of that specific supply contract operated to deny the conclusion that was otherwise open that the parties were in competition in a relevant market. But in each case, the specific activity was part of a broader process of competition between existing competitors. Contrastingly, in the present case there was no possible rivalry between Loyal/Voope and Cascade beyond the EOI process which Loyal/Voope lacked both the resources and the resolve to pursue. As the respondents submitted, having neither the capacity nor the intention to pursue the relevant acquisition or supply of the relevant services, Loyal and Voope were not in competition with Cascade, which had both the capacity and the intention to do so.

151    In our view the primary judge did not err in placing reliance upon the fact that Loyal and Voope lacked the intention or capacity to satisfy the financial contributions attendant on the MMNL EOIs for the Mount Penny or Glendon Brook coal release areas. And as he in essence found, Loyal and Voope had neither the intention nor the means to pursue the EOIs for Mount Penny and Glendon Brook. Accordingly, this was not a case in which the absence of a present intention to compete was caused by an intention to enter into a “bid rigging” arrangement. Rather, Loyal and Voope lacked the intention and financial capacity to compete for reasons relating to their commercial position which existed independently of any arrangement with Cascade.

152    Further, the determination of what would have occurred in the absence of the withdrawal provision in the Buffalo agreement has to be reasonably grounded. In this respect the ACCC failed to establish that assessed as a matter of commercial reality as at 5 June 2009, there was any real chance that Loyal or Voope would have obtained or controlled ELs over Mount Penny or Glendon Brook. Moreover, and contrary to the ACCC’s suggestion, the primary judge did not equate unlikelihood of winning with an absence of competition. It was not merely unlikely that Loyal and Voope would succeed in obtaining ELs for Mount Penny and Glendon Brook. To use the ACCC’s sporting analogy, Loyal and Voope were not merely “coming last in a race, and unlikely to win”. As a matter of commercial reality, they were never in the race at all, which was to obtain the consent of the Minister under s 13(4). Loyal and Voope never had the ability or the intention to obtain that consent.

153    Now the ACCC has speculated that it was “at least possible” that Mr Brook and the Obeids might have “attempted” to reach an (unidentified) arrangement with an (unidentified) third party to obtain the necessary funding, or that “it is impossible to rule ... out entirely” that such an attempt might be successful. But in our view that speculation does not establish the existence of a real chance as opposed to a mere theoretical possibility of competition.

154    Further, the ACCC asserts that the “clearest evidence” of the constraint that Loyal and Voope allegedly imposed on Cascade’s decision making was Cascade’s “willingness to grant valuable rights to the Obeids and Brook in exchange for the withdrawal of the MMNL EOIs”. But this is a problematic submission. Although the withdrawal of the MMNL EOIs was one aspect of the obligations undertaken by Buffalo in the Buffalo agreement, Buffalo undertook other obligations. The ACCC’s case that the withdrawal of the EOIs was the only consideration provided under the Buffalo agreement or the essential obligation is inaccurate. Further, in addition to the obligations undertaken by Buffalo in the Buffalo agreement, the commercial reality was that the acquisition of the land was the reason the deal was attractive to Cascade, which was a significant reason for Cascade’s interest and the explanation as to why the Buffalo agreement and the Landowners agreement were interdependent, as his Honour found ([471]).

155    Further, the ACCC has referred to “Cascade’s perception of Loyal and Voope as rivals in the competition for the opportunity to seek and obtain ELs”. But there was no such perception. On the contrary, his Honour accepted Mr Poole’s evidence ([522] and [526]) that he understood that MMNL had decided to abandon its EOIs for Mount Penny and Glendon Brook and would have done so in the immediate future come what may. He also accepted Mr John McGuigan’s evidence that he did not believe that Cascade was in competition with Loyal for the right to apply for an EL over Mount Penny and that he thought Cascade was competing only with the parties who had lodged EOIs for that area, including MMNL, even though he had been told that MMNL had decided to withdraw its EOI for that area. Moreover, in that context the withdrawal provision may more readily be seen as confirmation of the existing reality, rather than as any driver of the bargain.

156    Before dealing with the final topic on the question of competition, let us say something further about “shadow actors”.

157    French J in AGL v ACCC at [350] stated:

Competition in a market is not assessed by a snapshot view of participant behaviour at a particular time. The theatre of competition is a theatre of real actors and shadow actors. The shadows are cast by the potential for new entry. The competitive process is informed by the rivalry of the participants and the potential rivalry of potential participants. Competition so understood is conceptually distinct from the idea of the market and the elements of market structure which may constrain or facilitate it.

158    None of this is controversial, but nor does this assist the ACCC. It may be accepted that competition and likely competition requires looking at actual and potential dynamics. It may be accepted that shadow actors and their actual and potential behaviour are to be considered. And there are two types of shadow actors to consider. One type is a potential actor who aspires to be an actual actor. Another type is an entity who does not aspire to be an actual actor but controls or aspires to control an actual actor. French J was dealing with the first type. But even to include the second type does not assist the ACCC.

159    Voope did not control MMNL. Voope and Loyal lacked the financial resources and the intention to engage in what the ACCC said to be potential rivalry. And Loyal and Voope were not in the relevant race where the competition in question was occurring, namely, to obtain the Minister’s consent. And beyond the EOI process, there could be no competition between Loyal/Voope on the one hand and Cascade on the other. But for the withdrawal provision, if MMNL won, Cascade would not be further competing. And if MMNL lost, Loyal/Voope would be nowhere, and in that scenario they would not be in competition with Cascade.

160    Fifth, the ACCC has sought to finesse a lot out of the Yarrawa experience, but none of this works.

161    We agree with the respondents that the fact that Loyal subsequently obtained an EL for the Yarrawa coal release area does not provide a relevant hypothetical counterfactual which advances the ACCC’s position in the appeal concerning Mount Penny or Glendon Brook.

162    Mr Brook agreed that in order for MMNL’s application for an EL in respect of Yarrawa to proceed, it was necessary for the under-bidder (Coalworks) to lend MMNL the funds necessary for the application, including the $2 million additional financial contribution, which is what occurred. It was clear to Mr Brook, as at 21 September 2009 being the last date for payment of the $2 million financial contribution, that MMNL was not prepared to proceed with the application for the EL in respect of Yarrawa unless and until MMNL had an assurance that bank cheques necessary to cover its financial obligations if it proceeded with the application were delivered, together with the application, to the Department.

163    But contrastingly, there was no prospect that Loyal or Voope could obtain, within 30 days of Ministerial consent under s 13(4), the $25 million or the $5 million necessary to satisfy the financial contribution conditions of the MMNL EOI for Mount Penny or Glendon Brook, respectively. And as we have said, MMNL would not have permitted the lodgement of any application for an EL for Mount Penny or Glendon Brook unless the applicable financial contribution was paid in full, by bank cheque, at the time of lodgement of the application. But there was no prospect of that occurring. We agree with the respondents that Yarrawa was not an obvious counterfactual. And the facts relating to Yarrawa hardly support the ACCC’s flimsy assertion that Loyal was “at least in the running to obtain an EL for Mount Penny and Glendon Brook, as it did with Yarrawa, were it not for the withdrawal provision”.

164    In summary, we reject the ACCC’s grounds of challenge concerning the competition question. It is convenient to now turn to the purpose question.

THE PURPOSE QUESTION

165    In order for the ACCC to succeed, it had to show that the withdrawal provision was entered into for the purpose of preventing, restricting or limiting the supply or acquisition of specified services by all or any of the parties to the understanding. To be clear in the discussion from hereon, the content of the withdrawal provision is that expressed in the Buffalo agreement that we have set out earlier being the first dot point made under the prefatory words “In recognition of Buffalo’s intellectual property contribution and in consideration of Buffalo: …”.

166    Purpose focuses on the end sought to be accomplished by the conduct, rather than the reason for seeking that end, that is, motive (News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 (News v South Sydney) at [18] per Gleeson CJ). The relevant purpose is that of the parties to the contract, arrangement or understanding and it is their subjective purpose. Further, it is not necessary that all of the parties to the understanding should have a common purpose.

167    Now the “manifest effect of a provision in an agreement, in a given case, may be the clearest indication of its purpose” (News v South Sydney at [18] per Gleeson CJ). But to consider objective effect ought not be given undue significance. After all, one is considering the effect that the parties sought to achieve (News v South Sydney at [63] per Gummow J). But the text and effect of the provision and a consideration of the circumstances surrounding the relevant arrangement or understanding may inform the subjective purpose. Although purpose is subjective (ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 at 474 per Lockhart, Gummow and von Doussa JJ and News v South Sydney at [41] per McHugh J, and [62] to [63] per Gummow J), it can be identified using objective considerations and inferred from circumstantial evidence. Moreover, where conduct is part of a wider strategy, the purpose of that strategy can be relevant to determining the purpose of the provision (Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222 at [494] per Beach J).

168    Further, it must be recognised that the application of a subjective test may have its difficulties where parties have different subjective purposes or have not turned their minds to the purpose of the relevant provision (cf McHugh J at [38]). But where multiple parties give rise to multiple subjective purposes, s 4F may have a role to play (News v South Sydney at [59] to [62] per Gummow J).

169    Further, a provision of a relevant arrangement or understanding will be deemed to have had a particular purpose if it was included in the relevant arrangement or understanding for multiple purposes, provided that the proscribed purpose was a substantial one. To be “substantial” it must be “considerable or large” or a “real purpose for the inclusion of the provision” (Seven Network Limited v News Limited (2009) 182 FCR 160 (Seven v News) at [858] per Dowsett and Lander JJ).

170    Finally, in the context of s 4D, the prohibited purpose of preventing, restricting or limiting supply must be directed toward particular persons or a particular class of persons. In other words, there must be identified persons or classes of persons as the object of the provision (Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 (Rural Press) at [8] per Gleeson CJ and Callinan J). That does not necessarily mean that the identity of all members of the defined class of persons must be readily ascertainable, but it is essential that the provision in question be directed toward specified persons or class of persons (ASX Operations v Pont Data (No 1) at 488; Rural Press at [8] per Gleeson CJ and Callinan J and [87] per Gummow, Hayne and Heydon JJ). In the present case we also do not need to dwell on this aspect of the matter.

171    It is convenient to first address how his Honour dealt with the question of purpose ([517] to [526]), although his observations were not decisive given his finding on the competition question.

(a)    The primary judge’s analysis

172    Before the primary judge, the respondents submitted that the purpose of the withdrawal provision was to define the terms of the joint venture rather than to prevent, limit or restrict the supply or acquisition of services. His Honour analysed that question in some detail.

173    His Honour recounted that Mr Poole gave evidence as to his purpose and that such evidence was a reasonable basis for inferring Cascade’s purpose.

174    Mr Poole said that all he intended to achieve by including the withdrawal provision was to reflect in the Buffalo agreement what was already a fact, that is, that MMNL had decided to abandon its EOIs for the Mount Penny and Glendon Brook coal release areas and would have done so in the immediate future come what may. Mr Poole said that because Mr Brook remained interested in squeezing some profit out of other MMNL EOI bids, including the EOI lodged for Yarrawa, he included the specific obligation that Buffalo and its associates and related parties would procure the withdrawal of the EOIs in respect of the Mount Penny and Glendon Brook coal release areas.

175    His Honour also recounted that Mr John McGuigan said that he did not believe that Cascade was in competition with Loyal for the right to apply for an EL over the Mount Penny coal release area. He said he thought that Cascade was competing only with the parties who had lodged EOIs for that area, including MMNL, even though he had been told that MMNL had decided to withdraw its EOI for that area. His Honour concluded that these purposes were not proscribed purposes. Moreover, his Honour said that Mr James McGuigan was not a decision-maker or director of Cascade. He did not have any purpose other than to do as he was asked when he took the steps which he did in the present case.

176    Further, his Honour concluded that as far as Buffalo and Mr Brook were concerned, they too did not have the requisite proscribed purpose. They knew that the MMNL EOIs for the Mount Penny and Glendon Brook coal release areas were “dead in the water” and that Mr Brook had not been able to raise the necessary funds. Further, they were well aware that Mr Brook had no chance of raising the necessary funds within the requisite timeframe.

177    His Honour said that similar considerations applied in respect of Loyal and Voope. As we have already indicated, his Honour concluded that there was no prospect that either of those companies would pursue the MMNL EOIs.

178    His Honour asked rhetorically: How could the withdrawal provision have the necessary anti-competitive effect if MMNL was going to abandon the two EOIs in question in any event and therefore how could the participants have acted for the requisite proscribed purpose?

179    His Honour referred to the ACCC’s submission that the requisite proscribed purpose was self-evident from the terms of the withdrawal provision and that it also relied upon various concessions made in the evidence by Mr John McGuigan and Mr Poole. But his Honour said that these submissions ignored the fact that neither Loyal nor Voope was, as at 5 June 2009, a competitor of Cascade in the relevant sense nor was either of those companies likely to be such a competitor, assessed as at that date. His Honour said that as at that date, MMNL had ceased to be a competitor or likely competitor in reality, because it did not have the resources to progress its EOIs nor was it willing to do so. It had by then decided to abandon its EOIs and would have given effect to that decision come what may.

180    His Honour said that had it been necessary to do so, he would have accepted the evidence given as to the various parties’ subjective purposes. And in that circumstance, the ACCC failed to establish that the parties to the EOI withdrawal understanding entered into the withdrawal provision for the requisite proscribed purpose.

(b)    ACCC’s submissions

181    The ACCC said correctly that to establish a contravention of s 45(2)(a)(i) of the TPA it was necessary to establish that the withdrawal provision had the purpose specified in s 4D(1)(b), namely, the purpose of preventing, restricting or limiting the supply or acquisition of services from particular persons or classes of persons by all or any parties to the arrangement or understanding.

182    The ACCC emphasised the observations of Dowsett and Lander JJ in Seven v News at [876] that:

[i]n reality, the purpose for including a provision will generally be obvious from its terms, seen in the context of the contract as a whole, the parties to it, the industrial and/or commercial context in which it is to operate and the objective circumstances surrounding such inclusion. In most cases, those factors will provide a satisfactory basis for inferring purpose. In many, perhaps most, cases, it will be difficult for a decision-maker to resist the inference that all of the parties to a contract, arrangement or understanding were aware of the purpose of a particular provision and had the purpose of producing the intended result. Any differences in attitude to such a provision are more likely to be as to motive than as to purpose.

183    The ACCC said that this was a case where the purpose of the withdrawal provision, that is, the effect sought to be achieved by the parties to the arrangement or understanding containing that provision was manifest from the provision itself. The ACCC said that the relevant part of the Buffalo agreement required in terms that MMNL’s EOIs be withdrawn and not further pursued thereby preventing Loyal from acquiring services from the Crown, namely, an EL for Mount Penny and Glendon Brook and any subsequent mining rights, or supplying services to the Crown, namely, the performance of the obligations attendant on the issue of an EL or any subsequent mining rights to Loyal. Moreover, the ACCC said that that was its effect. On 9 June 2009, after sending to the Department the withdrawal of MMNL’s EOIs for the Mount Penny and Glendon Brook coal release areas, Mr Brook observed in an email to Cascade’s directors “see below and attached withdrawal in accordance with our agreement” ([327]). In that context the ACCC emphasised Gleeson CJ’s observations in News v South Sydney at [18] that “[t]he manifest effect of a provision in an agreement, in a given case, may be the clearest indication of its purpose”.

184    The ACCC says that in the present case the manifest effect was the clearest indication of purpose. Accordingly, the conclusion that the withdrawal provision had the proscribed purpose was straightforward and the primary judge erred in failing to reach that conclusion.

185    Now, as the ACCC pointed out, the primary judge rejected (at [525]) the proposition that the requisite proscribed purpose was self-evident from the terms of the withdrawal provision in the Buffalo agreement by reference to his conclusion that neither Voope, Loyal or MMNL was, as at 5 June 2009, a competitor, or likely to be a competitor, of Cascade because none had the capacity or willingness to progress the EOIs for the Mount Penny and Glendon Brook coal release areas. But the ACCC says that this conclusion was in error for the reasons submitted concerning the competition question; of course, we have rejected these submissions as we have explained. Moreover, it says that any absence of competition did not logically negate the existence of a proscribed purpose of the parties to the arrangement or understanding containing the withdrawal provision. In our view that proposition may be correct in such a desiccated form, but in a commercial context if there is no competition and could be no competition, that hardly assists the ACCC’s case to positively establish purpose.

186    Further, the ACCC pointed out that the primary judge (at [522]) rejected the existence of a proscribed purpose on the part of Cascade by reference to a stated intention of Mr Poole “to achieve [by the withdrawal provision] what was already a fact, that is, MMNL had decided to abandon its EOIs for the Mt Penny and Glendon Brook coal release areas and would have done so in the immediate future come what may”. This was explained by Mr Poole in the light of what he said was Mr Brook’s stated intention of “squeezing some profit out of other MMNL EOI bids, including … Yarrawa” ([522]). But the ACCC says that Mr Poole’s explanation is a statement of motive, not purpose in the relevant sense, namely, the effect sought to be achieved by the provision. In any event, it says that it is a motive consistent with the existence of a proscribed purpose. In its submission, a purpose of ensuring that MMNL’s EOIs were withdrawn and not further pursued, so as to obviate the risk that Mr Brook might attempt to do something to “squeeze some profit” out of them, is consistent with a purpose of preventing Loyal, as the party to whom any EL arising out of MMNL’s EOIs would be issued, acquiring services (an EL) or supplying services (performance of the obligations attendant on an EL) to the Crown. The ACCC says that this is because if Loyal was so prevented, Mr Brook would necessarily be unable to “squeeze some profit” out of MMNL’s EOIs.

187    Further, the ACCC points out that the primary judge (at [522]) also rejected the existence of a proscribed purpose on the part of Cascade by reference to Mr John McGuigan’s belief that Cascade was not in competition with Loyal for an EL for the Mount Penny coal release areas and “he had been told that MMNL had decided to withdraw its EOI for that area”. But the ACCC says that such a belief, even if Mr John McGuigan entertained it, does not logically negate the presence of a proscribed purpose to achieve an effect which is evident on the face of the withdrawal provision.

188    Further, the ACCC says that the primary judge’s acceptance (at [522]) that Mr Poole and Mr John McGuigan believed as at 5 June 2009 that MMNL had decided to abandon its EOIs for the Mount Penny and Glendon Brook coal release areas could not stand with his conclusion (at [427] to [431]) that Mr Brook and Mr Moses Obeid had every reason to conceal, and did conceal, from Cascade’s directors “MMNL’s true position in respect of its EOIs for the Mt Penny and Glendon Brook coal release areas” ([427]). This is because, so the ACCC says, as his Honour observed ([427]), the “capacity to secure a withdrawal of MMNL’s EOIs for those two coal release areas” was a “significant bargaining chip” for Mr Brook and Mr Moses Obeid in their efforts to secure a deal with Cascade which culminated in the Buffalo agreement of 5 June 2009. His Honour further observed at [431] that “[h]ad the true position been revealed … the bargaining position of the Obeids and Mr Brook would have been detrimentally affected”. The ACCC says that Mr John McGuigan and Mr Poole cannot have believed something which the primary judge (correctly) found was actively concealed from them and, if true, would have denied to the Buffalo agreement what the primary judge regarded as its sine qua non (see [483] and [489]).

189    The ACCC also says that to the extent that the primary judge’s acceptance of Mr Poole’s explanation of his intention at [522] arose from the conversation deposed by Mr Poole set out at [315], and apparently accepted by the primary judge at [319], his Honour erred in accepting that evidence. His Honour’s reason for accepting it at [319] was that there was “no evidence from Brook … suggesting that this evidence given by Poole … was incorrect in any respect”. But, so the ACCC submitted, his Honour had set out at [316] to [318] two respects in which Mr Brook disputed Mr Poole’s account. Further, at [536] the primary judge overall accepted Mr Brook’s evidence as “essentially reliable”. Moreover, the respects in which Mr Brook disputed Mr Poole’s account (referred to at [316] and [317]) were consistent with the primary judge’s finding (at [428]) that Mr Brook told Mr John McGuigan on 23 May 2009 that he was in a position to obtain control of and withdraw MMNL’s EOIs for the Mount Penny coal release area (but not that MMNL had resolved to withdraw them) and his Honour’s finding that such withdrawal was the quid pro quo offered by, and the essential obligation of, Buffalo, Loyal, Voope and Mr Brook under the Buffalo agreement ([483] and [489]).

190    Generally, the ACCC says that the evidence of Mr John McGuigan and Mr Poole as to their understanding of the effect of the withdrawal provision was consistent with the proscribed purposes which emerge from its very terms. Mr John McGuigan accepted that he knew that by the withdrawal provision Mr Brook and the Obeids were agreeing not to pursue mining rights in respect of Mount Penny and Glendon Brook using any entity, including Loyal. Further, he accepted that if Mr Brook or the Obeids had control over an application for mining rights for Mount Penny and Glendon Brook and did not withdraw it, he would regard that as in breach of the deal. Likewise, Mr Poole accepted that he knew that an aspect of the deal Cascade entered into on 5 June 2009 was that Mr Brook and Loyal would withdraw the MMNL EOIs for Mount Penny and Glendon Brook and that Mr Brook, or any entity associated with him, would not pursue mining rights for those areas.

191    Further, the ACCC points out that the primary judge (at [523] and [524]) rejected the existence of a proscribed purpose on the part of Buffalo, Mr Brook, Loyal and Voope by reference to his finding that they knew that MMNL had resolved to abandon the Mount Penny and Glendon Brook EOIs and that none of them had the intention or capacity to pursue the grant of an EL for those areas themselves. In those circumstances, his Honour concluded that the withdrawal provision could not “have the necessary anti-competitive effect” and, therefore, “the participants [could not] have acted for the requisite proscribed purpose” ([523]).

192    But the ACCC says that the absence of an “anti-competitive effect”, on the hypothesis that none of the non-Cascade parties to the withdrawal provision or MMNL intended to, or had the capacity to, pursue an EL for Mount Penny and Glendon Brook, did not logically negate the existence of a proscribed purpose on the part of Buffalo, Mr Brook, Loyal and Voope in agreeing to the withdrawal provision.

193    Further, it says that an uncommunicated incapacity or irresolution on the part of MMNL, Voope or Loyal to pursue the MMNL EOIs for the Mount Penny and Glendon Brook coal release areas did not deny the existence of competition between Cascade on the one hand, and Voope or Loyal on the other, for the opportunity to apply for and obtain ELs for the Mount Penny and Glendon Brook coal release areas.

194    Further, the ACCC says that the primary judge’s conclusion that it was inevitable that the MMNL EOIs for the Mount Penny and Glendon Brook coal release areas would be abandoned had the Buffalo agreement not been reached on 5 June 2009 was in error.

195    Finally, as s 4F implicitly indicates, it may be sufficient to establish a contravention of s 45(2)(a)(i) that only one of the parties to the arrangement or understanding had the proscribed purpose (Seven v News at [887]). But the ACCC says that in this case there was no need to differentiate between the purposes of Cascade on the one hand, and Buffalo, Voope, Loyal and Mr Brook on the other, in agreeing to the withdrawal provision. The purpose of each of those parties in agreeing to the withdrawal provision was a proscribed purpose which the ACCC says emerged clearly from the text and effect of the withdrawal provision, and was consistent with the evidence of the Cascade directors.

(c)    Analysis

196    In our view, his Honour correctly found that the purpose of the withdrawal provision was to protect and contribute to the joint venture. This was not a proscribed purpose. In our view, the ACCC’s submissions fail to adequately distinguish between the purpose of the provision and its effect. Here the purpose was to define the terms of the proposed joint venture. As the respondents correctly pointed out, there had to be some scope given to the joint venture, that is, what was within it, and what was outside of it. And in that sense the purpose of the withdrawal provision could be seen as being definitional. It defined the parameters of the joint venture and the scope of the obligations of the parties to it.

197    As we have stated, in assessing the purpose of a provision, the relevant purpose is the subjective purpose of the parties to the contract, arrangement or understanding, being the end they had in view. Accordingly, one can go beyond the words of the Buffalo agreement. The surrounding circumstances and conduct of the parties, as well as their direct evidence of their subjective purpose, are all relevant to the inquiry. In the present case, the primary judge was entitled to find as he did that the subjective purposes of Mr Poole and Mr John McGuigan were not proscribed purposes ([522] to [526]). There was probative evidence before his Honour to find, as he did, that this was the subjective purpose of Mr Poole and of Mr John McGuigan, which also sufficiently supported an inference that it was also Cascade’s purpose. There is no error to be discerned in that conclusion.

198    Now the ACCC seeks to set aside credit-based findings as to the purposes of Mr John McGuigan and Mr Poole. But the primary judge, with the benefit and the advantages he had in seeing and hearing the evidence, was entitled to accept the evidence of the subjective purposes of Mr John McGuigan and Mr Poole ([526]).

199    The primary judge accepted Mr Poole’s evidence as to how the EOI withdrawal understanding came to be included in the Buffalo agreement ([315] and [319]), which involved the acceptance of Mr Poole’s evidence that the amendments were uncontroversial, as he understood Mr Brook was always going to proceed with a joint venture since meeting him on 1 June 2009. His Honour also accepted Mr Poole’s evidence that on 5 June 2009 he believed MMNL had decided to abandon its EOIs for the Mount Penny and Glendon Brook areas which would have occurred “in the immediate future come what may” ([522]). This belief was based on Mr Poole’s evidence that on 1 June 2009, Mr Brook told Mr Poole that the public company which Mr Brook had been working with was not proceeding any further with its EOIs ([270], [526]).

200    The primary judge also accepted ([522]) Mr John McGuigan’s evidence that in May and June 2009 he did not believe that Loyal and Cascade were in competition for the right to apply for an EL over the Mount Penny coal release area. Rather, he thought Cascade was competing only with parties who had lodged EOIs for that area, including MMNL.

201    Further, Mr Poole gave evidence of his belief that the purpose and effect of the EOI withdrawal understanding was to contribute to the success of the joint venture constituted by the Buffalo agreement by ensuring that a party would not pursue mining rights in the areas Cascade was hoping to operate in. This purpose was accepted by the primary judge.

202    In cross-examination, Mr Poole also gave evidence as follows:

I thought that Gardner Brook not trying to pursue, under the Monaro subsidiary, the potential under an EOI to get an EL had some value, whether that was large or small, but the reduction in that, you know, it – it was obviously for me, if you wanted to be in the joint venture you have to be in the joint venture. It wasn’t the driving purpose or reason or anything behind this, but…

203    Further, as the respondents point out, the withdrawal provision extended to areas contiguous to the Mount Penny and Glendon Brook coal reserve areas, such that there was a prohibition on pursuing mining rights in contiguous areas to those being mined by the joint venture. We agree with the respondents that this supports the proposition that the purpose of the withdrawal provision was to ensure that Buffalo, Loyal and Mr Brook acted consistently with Buffalo’s obligations under the joint venture.

204    Further, as we have indicated, Mr Poole gave evidence that on 5 June 2009 he understood and believed that MMNL had decided not to pursue its EOIs for Mount Penny and Glendon Brook, that on 5 June 2009 he did not believe that Loyal, or any party standing behind Loyal, was a competitor of Cascade, and that the deal was attractive to Cascade because it secured access to land, allowing exploration to start immediately.

205    Further, Mr John McGuigan gave evidence that he thought the withdrawal provision had the purpose of making clear that it was the obligation of joint venture parties not to act inconsistently with the joint venture obligations, and that if Buffalo, its associates and related parties were to be in a joint venture with Cascade, they should not be competing for the same rights.

206    In our view, his Honour was entitled to accept all of this evidence, as he did.

207    Now we accept that the terms of the provision itself and its manifest effect may be used to infer purpose. But how useful the terms are to support such an inference depends upon the particular provision, its context, the parties and the surrounding circumstances. And contrary to what the ACCC has submitted, Dowsett and Lander JJ in Seven v News did not say that the purpose for including a provision will generally be obvious from its terms alone. Rather, their Honours said (at [876]):

In reality, the purpose for including a provision will generally be obvious from its terms, seen in the context of the contract as a whole, the parties to it, the industrial and/or commercial context in which it is to operate and the objective circumstances surrounding such inclusion. In most cases, those factors will provide a satisfactory basis for inferring purpose.

208    Further, and contrary also to the emphasis that the ACCC sought to give, in News v South Sydney at [18] Gleeson CJ’s observation that “the manifest effect of a provision … may be the clearest indication of its purpose” was an observation that may be applicable in a given case. But his Honour also said:

In other cases, it may be difficult, or even impossible, to determine the purpose (of a kind relevant to the operation of the Act) of a provision in a written contract merely by reading the document.

209    Further, in the ACCC’s endeavour to objectively determine subjective purpose by consideration of the terms and effect of the withdrawal provision, as Gummow J explained in News v South Sydney at [63] there is a danger that undue emphasis will be given to the substantive effect of the provision rather than what the parties sought to achieve by it. In our view, the ACCC has overplayed the text and effect of the withdrawal provision and underplayed the objective circumstances surrounding its inclusion and the cogent evidence of subjective purpose given by the witnesses, particularly the Cascade individuals.

210    The ACCC submits that the primary judge’s rejection of its principal submission was based on his Honour’s conclusions that as at 5 June 2009, Voope and Loyal were not competitors of Cascade, or likely to be, and MMNL had ceased to be a competitor or likely competitor (at [525]). But we would also point out that the primary judge’s reasoning is to be understood in the context of his earlier findings that, in substance, the Cascade parties (through Mr Poole and Mr John McGuigan) believed that MMNL had decided not to proceed with its bids and that Loyal and Cascade were not in competition with each other ([522] to [524]). Moreover, Buffalo and Mr Brook had the same understanding that the MMNL EOIs were “dead in the water” ([523]). Accordingly, purpose had to be assessed against that background, as his Honour correctly did.

211    Moreover, we agree with the respondents that the primary judge’s observations (at [525]) reflect these earlier findings. Further, as we have said, the primary judge accepted Mr Poole’s evidence that the withdrawal provision was included because of Mr Poole’s view that it was appropriate to ensure that Buffalo and its associates not have interests which Mr Poole regarded as contrary to its obligations as a joint venture party. Mr Poole said he required the withdrawal provision because, in his view, a party wanting to enter a joint venture with Cascade should not pursue ventures inconsistent with the joint venture ([562]).

212    Now we note that the ACCC has emphasised the second aspect of Mr Poole’s evidence (recorded at [522]) as to Mr Poole’s concern that Mr Brook was attempting to “squeeze profit” out of areas other than Mount Penny and Glendon Brook. But as the respondents point out, the primary judge had earlier accepted Mr Poole’s evidence as to the purpose of the withdrawal provision ([522]). His Honour did not find that Mr Poole’s purpose was to prevent Mr Brook from “squeezing profit” from the Mount Penny and Glendon Brook areas or to prevent Loyal from acquiring or providing services.

213    The ACCC submits that the finding about Mr John McGuigan’s belief that he did not believe that Cascade was in competition with Loyal for the Mount Penny coal release area and that he had been told MMNL had decided to withdraw does not negate a proscribed purpose evident from the terms of the withdrawal provision. But in our view, an acceptance of Mr John McGuigan’s belief that there was no competition partly provides support for the conclusion that Mr John McGuigan did not intend the provision to prevent Loyal from providing the relevant services. Mr John McGuigan did not think that Loyal was going to provide, or would ever be in a position to provide, those services.

214    Further, the ACCC asserts an inconsistency in the primary judge on the one hand accepting the beliefs of Mr John McGuigan and Mr Poole that MMNL had decided to abandon the relevant EOIs, and on the other hand his finding that between 23 May 2009 and 5 June 2009 Mr Brook and Mr Moses Obeid had every reason to conceal MMNL’s decision to withdraw its EOIs (at [427]).

215    But his Honour’s findings (at [427] and [429]) accepting Mr Brook’s version of the 23 May 2009 conversation over Mr John McGuigan’s version are the subject of Cascade’s and the McGuigans’ notice of contention, which in our view has some merit on this aspect.

216    When cross-examined about his meeting with Mr John McGuigan, Mr Brook did not recall whether he said that the MMNL board had funding problems in advancing its EOIs, and did not recall whether he said that MMNL had resolved to withdraw those EOIs. Notwithstanding this, the primary judge’s findings (at [411], [414] and [428]) were that Mr Brook did not say anything to Mr John McGuigan about MMNL having funding difficulties in meeting its obligations under the EOIs which it had lodged, although the primary judge found that the evidence in common between Mr Brook and Mr John McGuigan was that Mr Brook did communicate that he and the Obeids were in a position to get control of the MMNL bid for the Mount Penny coal release area and withdraw it. But Mr James McGuigan corroborated his father’s account, saying that at the meeting Mr Brook had said that MMNL had already resolved to withdraw the Mount Penny bid, although Mr James McGuigan did not recall whether Mr Brook communicated that he was in a position to control the bid. The primary judge did not consider that evidence, finding that “James McGuigan gave no evidence about the substance of the 23 May discussions” ([408]).

217    Further, the primary judge’s findings (at [427] and [429]) also appeared to overlook Mr Brook’s oral evidence in which he seemed to agree with Mr Poole’s evidence when he admitted that he “probably” told Mr Poole on 1 June 2009 at his first meeting with Mr Poole that the public company he had been working with had got cold feet and had decided that it did not want to proceed with any of the EOIs. This evidence was contrary to Mr Brook’s previous denial of Mr Poole’s version. Mr Poole’s evidence was that Mr Brook told him at the 1 June 2009 meeting that the bids of the public company Mr Brook was working with were not proceeding. He thereafter believed that those bids were not proceeding. Mr Poole maintained that evidence in cross-examination.

218    Further, in our view the primary judge’s findings at [522], which accepted Mr John McGuigan’s evidence that he did not believe that Cascade was in competition with Loyal and was in competition only with the parties who lodged EOI bids, was not dependent on the outcome of whichever version of the 23 May 2009 conversation (i.e. Mr Brook’s or Mr John McGuigan’s) was accepted. And nor did such findings depend on the correctness of the other findings (at [427] and [429]).

219    The ACCC submits, based on his Honour’s findings in [427], that revealing MMNL’s decision not to proceed with its EOIs was unlikely to occur. It is said that to reveal it would detrimentally affect the Obeids’ bargaining position. It is said that withdrawal of the MMNL EOIs was the commercial essence of the Buffalo agreement. It is said that such withdrawal was of central significance to Cascade. But we agree with the respondents that the ACCC overstates the commercial significance to Cascade of the Obeids’ ability to secure a withdrawal of the MMNL bids. The primary judge’s finding at [483] is to be understood in the context of his Honour’s findings at [552] and [554] that under the Buffalo agreement, Buffalo assumed financial obligations to contribute to the joint venture and to the cost of land acquisition. The Buffalo agreement was interdependent with the Landowners agreement ([471]) and the Obeids’ control of the adjoining land was a significant aspect of the deal to Cascade ([427]). The reference in [483] to what Buffalo “committed to do” was a reference to its obligations on entering into the agreement because the primary judge found that Buffalo had other obligations.

220    In the minds of Mr John McGuigan and Mr Poole, the Buffalo agreement was a means of allowing Cascade access to the land necessary to conduct exploration activities, the importance of which is recorded in the Key Principles document of 31 May 2009 ([263]), which the primary judge accepted as a reliable account of the discussions on 31 May 2009 attended by Mr Brook, various members of the Obeid family, Mr John McGuigan and his son James. The importance of securing the land was emphasised by Mr Poole and by Mr John McGuigan in his account of the 23 May 2009 meeting with Mr Brook. And the Key Principles document records (at [6]) the interest in the joint venture being conferred because of ownership of the land. Importantly, there is no reference in the Key Principles to withdrawal of the EOIs. We agree with the respondents that such an omission is inconsistent with the proposition advanced by the ACCC that the withdrawal had significance to the Cascade parties.

221    Further, the ACCC attacks the finding at [522] as to Mr Poole’s belief that MMNL had decided to withdraw its EOIs. It submitted that to the extent that such a belief depended on the primary judge’s acceptance of Mr Poole’s account of the 5 June 2009 meeting, the primary judge’s fact finding miscarried. Now at [319] his Honour accepted Mr Poole’s account at [315], saying that Mr Brook’s evidence did not suggest that this account was incorrect, although Mr Brook did dispute another aspect of the conversation. But Mr Poole’s version of the 5 June 2009 meeting did not mention that MMNL was not proceeding with its EOIs. Rather, Mr Poole’s evidence was that Mr Brook had said at the earlier meeting of 1 June 2009 that the bids of the public company Mr Brook was working with were not proceeding ([268]), and Mr Brook agreed in cross-examination that he probably said this. So, as at 5 June 2009 Mr Poole understood that the public company with which Mr Brook had been working was not proceeding any further with its EOI. Moreover, the primary judge generally accepted (at [526]) the evidence of the subjective purposes of the parties. The ACCC’s criticism lacks substance.

222    Further and contrary to the ACCC’s submission, we agree with the respondents that the third sentence of [522] (“because Brook remained interested in squeezing some profit out of other MMNL EOI bids …”) was not a finding as to Mr Poole’s purpose. The finding as to Mr Poole’s purpose was contained in the second sentence of [522], read with [526]. The third sentence of [522] was a description by the primary judge of Mr Poole’s perception as to Mr Brook’s intentions or motive. There was no finding that Mr Poole’s purpose was to prevent Loyal from acquiring or providing services, and the finding in the second sentence of [522] when read with [526] makes that plain.

223    Further and to repeat, we reject the ACCC’s challenges to the primary judge’s findings (at [522] and [526]) regarding Mr Poole’s and John McGuigan’s belief as at 5 June 2009 that MMNL had decided to abandon its EOIs for Mount Penny and Glendon Brook. Those findings were based, in part, on his Honour’s assessment of the credit of Mr Poole and Mr McGuigan. Further, as to Mr Poole, the finding was supported by Mr Brook’s evidence, in cross-examination, that he probably told Mr Poole on 1 June 2009 that the public company he had been working with had got cold feet and had decided that it did not want to proceed with any of the EOIs. And we also agree with the respondents that the primary judge’s finding at [427] that, at all times from 23 May 2009 to at least 5 June 2009, Mr Brook “had every reason to conceal from the Cascade directors MMNL’s true position in respect of the EOIs for the Mt Penny and Glendon Brook coal release areas”, overlooked that concession by Mr Brook. And to that extent we accept the point made in the fourth and eighth respondents’ notice of contention.

224    Further, the ACCC submits that Mr John McGuigan and Mr Poole knew that by the withdrawal provision, Mr Brook and the Obeids were agreeing not to pursue mining rights using any entity. But that does not mean that their purpose of including the withdrawal provision was to achieve the result that Loyal would not acquire from nor provide services to government. Their belief, which the primary judge accepted, is as we have discussed above.

225    Further, the ACCC criticises the primary judge’s finding ([523]) that the Obeids did not have a proscribed purpose because they knew that MMNL and Loyal would not be proceeding to provide or acquire the particularised services because the funds necessary to pursue any EL were not available. But in our view, this criticism goes nowhere either. Agreeing to withdraw something which will never proceed in the circumstances described by the primary judge does not support the ACCC’s proscribed purpose thesis.

226    Further, in our view the non-existence of a proscribed purpose is consistent with the contemporaneous documents. As the respondents point out, there is no reference in the Key Principles document (at [263]) to the proposed withdrawal of existing EOIs. Further, there is no such reference in any drafts of the Buffalo agreement circulated during the period 1 to 4 June 2009 inclusive. Indeed it is not in doubt that the withdrawal provision and any references to existing applications was not included in the Buffalo agreement until 5 June 2009 being its day of execution. The contemporaneous material supports the position that the substantial purpose of the withdrawal provision was to give effect to the joint venture. At most, any anti-competitive purpose or effect was, to use the respondents’ words, “a mere incident, and a conventional term, of the joint venture”. The withdrawal itself was not the end sought to be achieved by the negotiations culminating on 5 June 2009 in the execution of the Buffalo agreement and the Landowners agreement and the substantial purpose of the withdrawal provision was not such an end.

227    Finally, as to the respondents’ distinction between a joint venture purpose and the proscribed purpose of preventing, restricting or limiting the supply or acquisition of services, the ACCC says that as the creation of the joint venture was conditional on Cascade obtaining an EL for the Mount Penny area, the asserted distinction is illusory. It says that the supposed joint venture’s existence and success depended on the achievement of the proscribed purpose to which the withdrawal provision was directed, that is, ensuring Buffalo and its associates did not pursue and obtain an EL and Cascade did. Accordingly, it says that the joint venture purpose does not deny the existence of the proscribed purpose.

228    But again, we consider that the ACCC concentrates on the effect of the withdrawal provision. Its purpose was for the joint venture. That was the end in mind. Further, the ACCC’s submission as to some intermediate purpose is decontextualised from the reality within which the withdrawal provision was agreed to including the evidence given by Cascade’s representatives concerning their states of mind and purpose on 5 June 2009, and the reality of MMNL intending in any event to abandon its EOIs for the Mount Penny and Glendon Brook areas.

229    The ACCC’s challenge on this aspect of its appeal fails.

THE JOINT VENTURE DEFENCE

230    We now turn to the joint venture defence raised by the respondents and accepted by his Honour that the withdrawal provision was for the purpose of a future joint venture between Cascade and Buffalo or, alternatively, between Cascade, on the one hand, and Buffalo, Loyal, Voope and Mr Brook, on the other hand, the proposed joint venture relating to exploring and mining coal at Mount Penny.

231    The respondents’ position below and before us was that the parties to the proposed joint venture were Cascade and Buffalo or their respective nominees. The essential terms which were to govern the joint venture were set out in the Buffalo agreement. In that agreement, the parties agreed to form either a joint venture company or an unincorporated joint venture to explore and develop the EL over the Mount Penny coal exploration area and a specified contiguous area and to pursue the grant of mining approval over the same area. The establishment of the joint venture was conditional upon Cascade being granted the relevant EL. So, the Buffalo agreement recorded a promise to establish a joint venture in the future, when the award of the EL to Cascade was satisfied.

232    The respondents’ position was that the Buffalo agreement imposed an obligation on Buffalo to contribute to the costs of the joint venture, including exploration costs, subject to certain thresholds being met. These thresholds had been discussed with Mr Poole at the 3 June 2009 meeting. As they put it, the essence of the Buffalo agreement was that in consideration and in recognition of the three matters set out next to the dot points at the top of p 2 of the agreement, Cascade agreed to establish a joint venture with the specific purpose of exploring, developing and mining the Mount Penny coal release area and contiguous areas and to grant Buffalo a 25% equity interest in the joint venture which, at that time, was intended to be either an incorporated joint venture vehicle or an unincorporated joint venture. This was later clarified by an amendment made in May 2010 but backdated to 6 June 2009 to be an incorporated joint venture.

233    It is said that the joint venture was recognised by the express terms of the Buffalo agreement, which referred to a “joint venture” and used the acronym “JV”. Further, it was referred to as such by the parties in their contemporaneous written and oral communications. Further, Mr Brook’s evidence confirmed that he and the Obeids conceived of the arrangement as a joint venture from the outset. Moreover, it is said that the contemporaneous instructions given by Mr Brook to HWL Ebsworth Lawyers confirmed the intention to establish a joint venture.

234    Indeed, it is said that by their words and conduct, the parties manifested an objectively ascertainable intention that their working relationship was to bear the character of a joint venture. We have set out earlier in these reasons some aspects of the Buffalo agreement.

235    In summary, according to the respondents, the joint venture defence provided for by ss 4J and 76C had been made out.

236    Sections 4J and 76C(1) of the then TPA provided:

4J Joint ventures

In this Act:

 (a)    a reference to a joint venture is a reference to an activity in trade or commerce:

(i)    carried on jointly by two or more persons, whether or not in partnership; or

(ii)    carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate; and

(b)    a reference to a contract or arrangement made or understanding arrived at, or to a proposed contract or arrangement to be made or proposed understanding to be arrived at, for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate as mentioned in subparagraph (a)(ii), be read as including a reference to the memorandum and articles of association, rules or other document that constitute or constitutes, or are or is to constitute, that body corporate.

…

76C Defence to proceedings relating to exclusionary provisions

Defence

(1)    In proceedings against a person in relation to a contravention of subparagraph 45(2)(a)(i) or (b)(i) in relation to an exclusionary provision, it is a defence if the person establishes that the provision:

   (a)    is for the purposes of a joint venture; and

(b)    does not have the purpose, and does not have and is not likely to have the effect, of substantially lessening competition.

237    It is convenient to first discuss his Honour’s treatment of the matter ([544] to [567]), although given his other findings on the competition question and the purpose question, the availability of the joint venture defence was not dispositive.

(a)    The primary judge’s analysis

238    His Honour referred to United Dominions Corporation Limited v Brian Proprietary Limited (1985) 157 CLR 1 at 10, where Mason, Brennan and Deane JJ observed:

The term “joint venture” is not a technical one with a settled common law meaning. As a matter of ordinary language, it connotes an association of persons for the purposes of a particular trading, commercial, mining or other financial undertaking or endeavour with a view to mutual profit, with each participant usually (but not necessarily) contributing money, property or skill. Such a joint venture (or, under Scots’ law, “adventure”) will often be a partnership. The term is, however, apposite to refer to a joint undertaking or activity carried out through a medium other than a partnership: such as a company, a trust, an agency or joint ownership. The borderline between what can properly be described as a “joint venture” and what should more properly be seen as no more than a simple contractual relationship may on occasion be blurred. Thus, where one party contributes only money or other property, it may sometimes be difficult to determine whether a relationship is a joint venture in which both parties are entitled to a share of profits or a simple contract of loan or a lease under which the interest or rent payable to the party providing the money or property is determined by reference to the profits made by the other.

239    It was accepted before his Honour that the general law definition was consistent with the statutory definition found in s 4J. We do not need to dwell further on the general law definition as debate about that or the fluidity of the concept is not relevant to the issues that we need to decide.

240    His Honour said that notwithstanding that he had found that certain of the parties formed an understanding on or about 5 June 2009, of which the two letter agreements being the Buffalo agreement and the Landowners agreement formed part, he did not think that all of the parties who were parties to that understanding were intended to be parties to the contemplated joint venture. In his view, the Buffalo agreement made clear that the parties to the proposed joint venture were Buffalo or a nominee of Buffalo, and Cascade or a nominee of Cascade. We agree.

241    His Honour said that in the Buffalo agreement, the parties agreed to form either a joint venture company or an unincorporated joint venture to explore and develop the EL over the Mount Penny coal exploration area and a specified contiguous area and to pursue the grant of mining approval over the same area. But the establishment of that joint venture was conditional upon Cascade being granted the relevant EL. The essential terms of the joint venture were set out in the Buffalo agreement. Contrastingly, the Landowners agreement contained no provisions which addressed the terms of the joint venture. In our view his Honour’s description is accurate.

242    Now some of the respondents submitted before his Honour that at all times from 5 June 2009 to late 2010, there was in existence a joint venture between Cascade and Buffalo or between Cascade and Buffalo and its associates. But his Honour did not consider that the Buffalo agreement immediately established the requisite joint venture. Rather, it recorded a promise to do so in the future when the necessary condition being the award of the EL to Cascade was satisfied. Again, his Honour’s characterisation of the arrangement is accurate. But in any event, his Honour considered that the fact that the joint venture had not actually been established as at 5 June 2009 would not be a reason for denying access to the joint venture defences provided for in the then TPA. We will return to this issue later.

243    His Honour said that under the Buffalo agreement, Buffalo had significant obligations regarding the funding of the joint venture including contributing its proportionate share of equity once certain conditions were met, as well as obligations to provide what was described as its intellectual property and future assistance.

244    In essence, his Honour considered that Buffalo was contributing something of substance to the joint venture. His Honour considered that the fact that Buffalo may have had a “free carry” did not mean that it was not contributing money. All that such a “free carry” meant was that the occasion for it to contribute was deferred until defined circumstances eventuated. Further, the fact that Buffalo could “elect” not to contribute, with the consequence that its interest would be diluted, did not change that analysis; we are not sure that the concept of election quite captures the precise obligations of Buffalo and will return to this question later. Further, the Buffalo agreement when read with the Landowners agreement contemplated a “pooling of assets”, which was one of the hallmarks of a joint venture. Further, the role of Buffalo as a future funding partner needed to be assessed in conjunction with the expected role of Mr Brook. Further, the fact that intellectual property contributed by Buffalo was ultimately not used or was ultimately useless, did not mean that the relationship of the parties lost its status as a joint venture. The fact that one party to a joint venture contributes ideas, assets or skills that are ultimately not used does not change the nature of the arrangement.

245    Further, his Honour accepted that the parties themselves regarded their proposed association as a “joint venture”. The parties had always looked at matters in that way and the parties’ views on the matter were relevant. We agree, although we would note that the views and labels of the parties whilst relevant are not definitive. The status and characterisation of the relevant association must be objectively assessed particularly given that it must fall within the statutory meaning for the defence to be available.

246    Further, his Honour said that although the Buffalo agreement contemplated that the Buffalo interests would not actively participate in the exploration and mining activities at Mount Penny, it did contemplate a pooling of assets which involved Buffalo being obliged to contribute proportionately to the costs of any land acquisition.

247    Further, his Honour rejected the ACCC’s submission that the respondents were unable to identify the joint activity which was to be carried on pursuant to the Buffalo agreement. His Honour said that the Buffalo agreement itself identified the joint activity to be carried out quite specifically. And the fact that the searching and digging at Mount Penny was to be undertaken by Cascade or contractors employed by Cascade was not to the point. In his Honour’s view, s 4J and the general law did not require that the physical activity to be undertaken at Mount Penny be carried on by the parties together.

248    Further, his Honour said that once one was satisfied that there was a joint venture within the meaning of s 4J and s 76C of the then TPA, for the defence to run the withdrawal provision had to be shown to be “for the purposes of a joint venture”.

249    His Honour accepted that the withdrawal provisions in the present case were for the purposes of the joint venture which was agreed to be established pursuant to the Buffalo agreement. His Honour found that the purpose of requiring Buffalo and its associates to provide the promises which they gave in the withdrawal provisions was to ensure that those parties did not engage in conduct which would contradict or undermine the activities of the joint venture. His Honour said that given that co-venturers or prospective co-venturers owe fiduciary duties to each other, setting out the content of those duties explicitly was sufficiently connected to the proposed joint venture to be for the purposes of that joint venture. His Honour referred to the fact that as Mr Poole put it in his evidence, if Buffalo wanted to be involved with Cascade in a joint venture, it needed to promise that it would not compete with the activities contemplated by that joint venture.

250    Finally, his Honour referred to the element of the s 76C defence requiring that the impugned provisions not have the purpose, effect or likely effect of “substantially lessening competition”. His Honour accepted the respondents’ submissions that they had satisfied this requirement in the present case for the following reasons.

251    First, the purpose of the withdrawal provisions was to contribute to the foundation, protection, subsistence, efficacy, viability and success of the proposed joint venture. But as at 5 June 2009, the withdrawal provisions were seen to be incidental or ancillary to the formation and development of the joint venture described in the Buffalo agreement. In this regard, the Cascade representatives considered the inclusion of the impugned provisions as a matter of low priority since they could not see how Loyal could inject itself into the process in any event.

252    Second, the evidence demonstrated that if the withdrawal provisions had not been included in the Buffalo agreement, in any event MMNL would have withdrawn its EOIs for Mount Penny and Glendon Brook. This was because MMNL did not have sufficient financial resources to progress its EOIs and also because it had changed direction and was no longer interested in pursuing coal mining.

253    Third, in any event, neither Loyal, Voope, Buffalo, Mr Brook nor Moses Obeid had expressed any interest in an EL over Glendon Brook.

254    In summary his Honour found that the withdrawal provisions did not have the purpose, effect or likely effect of substantially affecting competition in the market for the allocation of an EL for Mount Penny. Therefore his Honour held, if he needed to say so, that the joint venture defence was made out.

(b)    Arguments and analysis

255    The ACCC contends that his Honour was in error for seven reasons. It is convenient to address each of the identified reasons in turn.

256    First, it submitted that the withdrawal provision could not be “for purposes of a joint venture” insofar as it required the withdrawal of the MMNL EOI for the Glendon Brook coal release area because the putative joint venture did not extend to the Glendon Brook coal release area. On the terms of the Buffalo agreement, the putative joint venture was limited to the exploration and development of the Mount Penny coal release area. This was confirmed by Mr John McGuigan and Mr Poole, both of whom accepted that the joint venture did not include Glendon Brook. Accordingly, it submitted that the agreement by Buffalo to procure the withdrawal of the MMNL EOI in respect of Glendon Brook could not be “for the purposes” of the putative joint venture in connection with Mount Penny. According to the ACCC, the primary judge appeared to accept that submission at [559], yet nevertheless ultimately concluded that the respondents would have made out their defence under s 76C of the TPA ([565], [567]). So, the ACCC submitted that his Honour’s ultimate conclusion was at odds with what he said at [559] and that his Honour did not explain how that conclusion could follow.

257    But as to this first reason, in our view his Honour correctly accepted that the joint venture, although in respect of Mount Penny, involved wider obligations including the withdrawal of any application in relation to Glendon Brook so that there was no other conduct which would contradict or undermine the activities of the joint venture. So, as his Honour said, “if Buffalo wanted to be involved with Cascade in a joint venture, it needed to promise that it would not compete with the activities contemplated by that joint venture” ([562]). Accordingly, the withdrawal provision, as it applied to Glendon Brook, was for the purposes of a joint venture even if that joint venture did not include Glendon Brook.

258    Further, as Mr Poole explained in evidence before the primary judge, the purpose of the withdrawal provision was to prevent conflicts between the joint venture parties. That extended to preventing Buffalo from seeking to obtain any knowledge or information derived from the Mount Penny development, relating to such matters as railway lines and freight, and then attempting to use that knowledge or information for the purpose of developing Glendon Brook. Indeed and in context, those were matters of commercial significance in circumstances where Mount Penny and Glendon Brook were connected by the same railway line and it was necessary to purchase limited space on the railway line.

259    Further, as the respondents correctly submitted, there is no reason to read down the words of s 76C “for the purposes of a joint venture” so as to require that the impugned provision regulate conduct covering the same geographical region as the joint venture. As Mr Poole’s evidence demonstrated, the commercial reality was that conduct by Buffalo or its associates in respect of Glendon Brook had the potential to contradict or undermine the activities of the joint venture in respect of Mount Penny.

260    Second, the ACCC says that the primary judge erred in finding that the withdrawal provision was “for the purposes of a joint venture” (s 76C(1)(a)) in circumstances where the putative joint venture was itself only the product or consequence of, or pay off for, the anti-competitive conduct. According to the ACCC, this was not a case in which the relevantly anti-competitive provision was an incidental aspect of creating an otherwise bona fide joint venture that the putative joint venturers wished to pursue. Rather, in this case the putative joint venture was itself only created as the consideration for the anti-competitive conduct.

261    The ACCC referred to the fact that the primary judge found that the essence of the Buffalo agreement was that Buffalo would receive a joint venture interest in exchange for its agreement to procure the withdrawal of the MMNL EOIs in respect of the Mount Penny and Glendon Brook coal release areas. His Honour concluded that “the promises made by Cascade to establish a joint venture upon the terms set out in the Buffalo Agreement [were] entirely referable to the promises made by the Buffalo interests to procure the withdrawal of the MMNL EOIs for the Mt Penny and Glendon Brook coal release areas” ([483]). Similarly, at [489], the primary judge described the creation of the joint venture interest as “clearly the quid pro quo for the promises made by Buffalo, Loyal, Voope and Brook” in the Buffalo agreement and said that “[t]hat quid pro quo… was not referable to anything else.”

262    The ACCC submitted before us that where the rationale for creating a joint venture was to reward a competitor for engaging in anti-competitive conduct, that anti-competitive conduct could not be “for the purpose of a joint venture” within s 76C. Rather, the anti-competitive conduct was the reason for the joint venture. The ACCC said that a related concept was discussed in the Explanatory Memorandum to what became the Trade Practices Legislation Amendment Act (No 1) 2006 (Cth) (2006 Amending Act) in relation to the defence then introduced in s 76C. The Explanatory Memorandum to the Trade Practices Legislation Amendment Bill (No 1) 2005 (Cth) at 74 said:

If the only activity being carried on jointly by the parties is the activity of making, or giving effect to, a contract, arrangement or understanding containing an exclusionary provision or other illegal provision, then the provision in question cannot be for the purposes of a joint venture.

263    According to the ACCC it is apparent from this passage that the provision must have a purpose, being a joint venture purpose, separate from its otherwise illegitimate purpose or role. Therefore, according to the ACCC, his Honour having found that the creation of the joint venture was entirely referable to the withdrawal provision, he should have found that the withdrawal provision was not “for the purposes of a joint venture” within the meaning of s 76C. Rather, it was merely the payoff for engaging in the anti-competitive conduct at issue.

264    The ACCC says that the primary judge appears to have reasoned that the withdrawal provision was “for the purposes of a joint venture” because it was “to ensure that [Buffalo and its associates] did not engage in conduct which would contradict or undermine the activities of the joint venture” ([562], [564(a)] and [565]). But the ACCC says that his Honour’s conclusion in this regard was inconsistent with his reasoning as to how the withdrawal provision came about. According to the ACCC, his Honour found that the withdrawal provision was not merely an incidental protection conceived of by Cascade to prevent frustration of the objects of an otherwise legitimate, extant joint venture. Rather it was, as his Honour found, the quid pro quo for the creation of the joint venture itself ([474], [476], [483], [489]). According to the ACCC, in those circumstances, the primary judge should have rejected the proposition that the purpose of the withdrawal provision was simply to ensure that Buffalo did not compete with the joint venture.

265    We would reject the ACCC’s second reason. The quid pro quo provided by Buffalo and its associates in exchange for the 25% interest in the joint venture was not confined to the withdrawal of the MMNL EOIs for Mount Penny and Glendon Brook.

266    It is convenient at this point to note our reading of the terms of the Buffalo agreement by observing the following, noting that the ACCC did not run any case below asserting that the agreement or any part of these terms were a sham. First, it recited or recognised “Buffalo’s intellectual property contribution”. Second, Buffalo accepted the obligations under the withdrawal provision. Third, Buffalo agreed to assist Cascade to explore and develop the EL and obtain relevant mining approvals. Fourth, Buffalo agreed to make available its expert knowledge to assist exploration concerning the contiguous area. Fifth, after the earlier of the granting of Mining Approval (as described in the Buffalo agreement) for 100 million tonnes or minimum exploration expenditure of $10 million, Buffalo was obliged to make a contribution to costs. At the least, by necessary implication it was so liable, if third party debt finance was unavailable. Further, the default mechanism of equity dilution was just that. That mechanism did not entail that there was no liability. Rather, it addressed the scenario where the liability was not met.

267    The primary judge (at [551] to [555]) did not embrace the proposition that the only consideration provided for the joint venture was the withdrawal provision. This was made clear by his Honour by the reference to Buffalo’s obligation once exploration expenditure exceeded $10 million, which was expressed as a liability “to contribute its proportionate share of equity to fund costs should third party debt finance be unavailable, or insufficient to fund such costs, including proportionate costs of any land acquisition”.

268    The ACCC says that Buffalo had no liability to pay, could elect not to pay and suffer dilution and thus could make no contribution. But we do not accept this characterisation. In our view, strictly Buffalo had a liability subject to various contingencies. But even if Buffalo had a right not to pay expenditure but could elect to dilute, the interest diluted was in substance a contribution to the joint venture because Buffalo’s loss of interest would have value.

269    Further, as we have indicated, Buffalo gave other consideration in addition to the withdrawal provision. In this regard it promised to assist Cascade to explore and develop the EL, it undertook not to pursue mining rights in any contiguous area, and it promised to provide intellectual property. Indeed, Buffalo contributed intellectual property by making available for Cascade, in mid to late June 2009, materials contained on a USB stick handed by Mr Brook to Mr Poole, which included information relating to the MMNL EOIs for Mount Penny and Glendon Brook, environmental, traffic and geological reports and other reports and exploration data assembled by MMNL.

270    Further, Mr Brook accepted that at the meeting with Mr John McGuigan and Mr James McGuigan on 31 May 2009, there was discussion to the effect that MMNL was prepared to hand over the work that had been done in relation to its EOI application, that this work included environmental and access reports and reports on other matters, and that if a deal could be done this intellectual property would be provided. And as we have said, in June 2009 Mr Brook handed over to Mr Poole a USB stick on which various reports were contained.

271    Further, Buffalo and the Obeid interests provided for the benefit of the joint venture control of the land, which was critical to any successful mining operation. Control of the land was described by Mr Poole as the primary reason for the deal with Cascade. Mr Brook gave evidence that he was told by the Obeids from the outset that what they thought they had, by way of bargaining chips with anybody that might obtain an EL, was access to the land and the water rights. On this aspect we note that the primary judge accepted that the Obeids’ control of the land, and the licences and the other permissions that went with the land, gave the Obeids “significant bargaining power with Cascade”, irrespective of what Cascade was told regarding the MMNL EOIs ([431]). He accepted that Mr Brook and the Obeids’ control of the land gave them “significant bargaining chips” in their negotiations with Cascade ([427]). And he accepted that the Buffalo agreement and the Landowners agreement were interdependent in the sense that the parties intended that performance of one required performance of the other ([471]).

272    In the circumstances, we accept the fourth and eighth respondents’ contention that the primary judge at [483] may not have accurately described that “the essence of that which Buffalo and its associated parties committed to do”, or “fairly much all that Buffalo and its associated and related parties had to do”, was to procure the withdrawal of the MMNL EOIs for Mount Penny and Glendon Brook and not to pursue mining rights in respect of those areas and contiguous areas (if that was intended to be a finding that this was all Buffalo was required to do at any time, as opposed to in the immediate future), and at [489] that the quid pro quo provided by Cascade was “not referable to anything else”. These findings are not fully consistent with the evidence and other findings we have just identified.

273    Further, although the ACCC also relied in this context upon the 6 June 2009 amendment, this was not signed until May 2010. We agree with the respondents that the execution of the amending agreement does not significantly affect determining whether the withdrawal provision in the Buffalo agreement was for the purposes of a joint venture.

274    Finally, the ACCC disputed the primary judge’s finding that the joint venture contemplated a “pooling of assets” ([552]), because this was inconsistent with the fact that Buffalo was not a party to the Landowners agreement. But his Honour found that “the Buffalo Agreement and the Landowners Agreement were interdependent in the sense that the parties to those Agreements intended that performance of one required performance of the other” ([471]). The land was to be provided by Cascade for the benefit of the joint venture with Buffalo obliged to contribute to the costs of land acquisition. There is nothing in the ACCC’s point on this aspect.

275    In summary, as the respondents correctly submitted, the rationale for the withdrawal provision was the joint venture rather than vice versa.

276    Third, the ACCC says that the primary judge erred in concluding that the joint venture defences were enlivened notwithstanding that the putative joint venture was never established. Now his Honour found that the putative joint venture did not exist at the time the withdrawal provision was made or given effect ([550]). Further, his Honour found that the putative joint venture was never formed ([528]). Nevertheless, his Honour concluded that these were not reasons for denying access to the defence under s 76C ([550]). That conclusion, so the ACCC submitted, involved a construction of the term “joint venture” to include “a contemplated joint venture”. But according to the ACCC, there is no warrant for reading these additional words into the provision. The ACCC submitted that there was nothing in the definition of “joint venture” in s 4J that supported such a construction. That definition speaks in the present tense: e.g. “a reference to a joint venture is a reference to an activity in trade or commerce carried on jointly by two or more persons”.

277    In support of its position, the ACCC submitted that the s 76C defence operated in respect of conduct that was otherwise illegal per se under the TPA. Moreover, it said that cartel conduct is generally regarded as the most pernicious of all breaches of competition law, a proposition which generally speaking we accept. The ACCC said that the rationale behind the joint venture exception created by s 76C is that, notwithstanding that such conduct is usually anti-competitive, it may be socially beneficial or pro-competitive where it is an aspect of a bona fide joint venture, for example because the joint venture provides a means of developing new products which would not be possible absent the joint venture, or the joint venture can provide economies of scale. But the ACCC says that such a rationale has no application in circumstances where a joint venture is contemplated, but never actually formed. In such circumstances, the impugned conduct carries with it all of the risks of anti-competitive harm but without any countervailing, pro-competitive benefit. The ACCC says that the language of s 76C should not be construed in a way that would encompass such an outcome. Accordingly, s 76C properly construed had no operation in the circumstances of the present case.

278    Now in response to this the respondents say that the ACCC’s point is answered by the text of s 76C(1)(a), which requires that the offending provision be “for the purposes of a joint venture”. The respondents submit that it does not say “existing” joint venture or a joint venture “which has already commenced”. They say that the primary judge was correct to conclude that “the fact that the joint venture had not actually been established as at 5 June 2009 would not be a reason for denying access to the joint venture defences” ([550]). They point out that the primary judge held that there was a promise to establish a joint venture and that promise imposed obligations on Cascade to hold the benefit of its EOI application and any EL which may issue for the joint venture parties. That was a joint venture obligation which existed on and from 5 June 2009.

279    But the ACCC counters that engaging s 76C required, first, the identification of an “activity in trade or commerce” which Buffalo “carried on jointly” with Cascade (s 4J(a)). Now the relevant “activity” identified in the Buffalo agreement was the exploration and development of the Mount Penny Coal Release Area. But the ACCC says that it has not been satisfactorily identified what Buffalo did jointly with Cascade to explore and develop the Mount Penny Coal Release Area so as to constitute a joint venture within the meaning of s 4J. And the ACCC says that that is not a question answered by pointing to the consideration in the Buffalo agreement provided by Buffalo according to simple contract law or by asserting joint venture obligations. Further, it says that it is not plausible to say that Buffalo jointly carried on the activity of exploring and developing the Mount Penny Coal Release Area by being “silent and passive”. But the respondents principally rely on three things being first, the prospect of the provision of equity by Buffalo, second, the supposed provision of intellectual property by Buffalo and, third, the provision of access to the land on which the Mount Penny Coal Release Area was located. But the ACCC says that none of these establish Buffalo’s joint carrying on of exploration and development activities of the Mount Penny Coal Release Area. First, as the primary judge accepted at [552(a)], Buffalo had no obligation to provide equity, but could suffer a dilution of its equity interest. But the ACCC says that suffering a dilution of equity interest does not reflect any joint activity by Buffalo. Second, what the primary judge described as “vague and amorphous promises in relation to the delivery up of … intellectual property and future assistance” ([483]) and Mr Brook’s handing over to Mr Poole of miscellaneous reports generated by MMNL did not reflect Buffalo’s joint participation in exploring and developing the Mount Penny Coal Release Area. Indeed, the primary judge found the material was “actually useless” ([552(b)]). Third, the respondents’ reliance on the provision of access to the relevant land has the problem that only Buffalo and Cascade were the parties to the joint venture ([548] to [549]). Buffalo was not a holder of any land access to which it could contribute to the joint venture. The ACCC says that these points support the primary judge’s finding at [483] that the withdrawal of MMNL’s EOI was “fairly much all that Buffalo and its associated and related parties had to do” under the Buffalo agreement and that the contemplated “pooling of assets” in the Buffalo agreement to which he referred at [554] did not manifest in any real joint activity establishing a joint venture within the terms of s 4J(a).

280    We reject the ACCC’s submissions on this aspect.

281    It is immaterial that the proposed joint venture was not established and instead was superseded by a fresh agreement in 2010 ([528]).

282    Further, we agree with the respondents that the ACCC’s submissions wrongly focus upon the language in the definitional provision in s 4J, which in any event is neutral on this point, whilst ignoring the express words of the substantive provision which creates the defence, namely s 76C. Section 76C(l)(a) relevantly requires a defendant to establish that “the provision … is for the purposes of a joint venture”. That directs attention to the state of affairs at the time of entry into of the contract, arrangement or understanding which contains the provision, which in this case was 5 June 2009. There is no requirement to show that the provision is for the purposes of an existing joint venture.

283    Further, the “rationale” identified by the ACCC is, in terms, expressed as an example only. But there is no warrant for reading into s 76C additional, unexpressed, elements drawn from an incomplete description in the extrinsic materials of the intended operation of the defence. Contrary to the premise of the ACCC’s argument, the availability of the defence must be assessed as at the time of the allegedly contravening conduct. A provision entered into “for the purposes of a joint venture” does not cease to answer that statutory description at the time of the alleged contravention merely because, at a later time and by reason of subsequent events, the contemplated joint venture does not come to pass.

284    Further, we reject the ACCC’s submissions concerning the joint activity question. There were meaningful obligations imposed upon Buffalo in addition to the withdrawal provision.

285    Fourth, and related to the third point, it was said by the ACCC that the primary judge erred in finding that the withdrawal provision was for the purposes of a joint venture in circumstances where the obligation to withdraw the MMNL EOIs was unconditional, but the obligation to confer a joint venture interest was conditional and might never arise.

286    The ACCC pointed out that the primary judge found that the establishment of the joint venture was conditional upon Cascade being granted an EL ([549] to [550]). This was consistent with the terms of the Buffalo agreement, which made the obligation to create a joint venture “subject to” the grant of an EL to Cascade or an affiliate of Cascade ([320]). Contrastingly, the withdrawal of the MMNL EOIs for Mount Penny and Glendon Brook was unconditional and would, of its nature, be given effect prior to the grant of any EL. In those circumstances, according to the ACCC, the withdrawal provision could not be “for the purposes of a joint venture” because the relevant joint venture did not exist at the time that the withdrawal provision was agreed, would not exist at the time it was given effect, and might never come into existence if the condition precedent for the creation of the joint venture (the grant of an EL to Cascade or its affiliate) did not come to pass.

287    The ACCC submitted that the circumstance that the withdrawal provision obliged Buffalo and its associates to withdraw the MMNL EOIs in respect of Mount Penny and Glendon Brook irrespective of whether or not a joint venture was ever created is a powerful indication that the purpose of the provision was not to serve the interests of the prospective joint venture, but was rather to serve the independent interests of the Buffalo and Cascade parties. According to the ACCC, it reflected the fact that it served the purposes of Cascade to have the MMNL EOIs in respect of Mount Penny and Glendon Brook withdrawn in any event, and it served the interests of the Buffalo parties to try to monetise their power to procure that outcome by doing a deal with Cascade. Those were the purposes served by the withdrawal provision. The ACCC submitted that the fact that the ultimate consequence of the withdrawal provision was that a putative joint venture may have been created did not convert that bargain into one made, and given effect, for the purposes of a joint venture within the meaning of s 76C.

288    But as we have already indicated, the ACCC’s submission ignores the fact that from 5 June 2009 joint venture obligations binding the parties came into existence. Further, the ACCC’s point is also answered by the text of s 76C, which speaks of “the purposes of a joint venture”, not the purposes of an “unconditional” joint venture or similar.

289    Further, we agree with the respondents that a construction of s 76C which precludes its application where an obligation to confer a joint venture interest is conditional and might never arise would undermine the utility of the defence. In many commercial contexts, such an obligation will necessarily be conditional because the activity in trade or commerce to be carried on jointly, spoken of in s 4J, cannot commence until a relevant permit or regulatory approval is granted. Nothing in the language of s 76C suggests that the joint venture must be unconditional and immediately operative. The legislature could readily have confined the provision to “unconditional” joint ventures if that is what it intended.

290    Fifth, and in some respects a repeat of some of its earlier points, it was said by the ACCC that the primary judge erred in finding that the parties agreed to form a joint venture within the meaning of s 4J in circumstances where, in reality, the parties did not jointly carry on, or intend jointly to carry on, any activity in trade or commerce. The definition of “joint venture” in s 4J relevantly requires that there be some identified “activity in trade or commerce”, and that that activity either be carried on jointly by two or more persons or carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly. The ACCC said that this concept of a “joint activity” is traceable to the recommendations of the Trade Practices Act Review Committee chaired by Mr T.B. Swanson in its report to the Minister for Business and Consumer Affairs dated August 1976. The Swanson Committee’s recommendations in relation to the treatment of joint ventures led to the introduction of s 4J into the TPA by s 6 of the Trade Practices Amendment Act 1977 (Cth).

291    The Swanson report recognised that there were the following difficulties in defining a “joint venture” for the purposes of competition law:

4.74    A joint venture may arise due to the desire or need for additional size or complementary nature of plant and equipment, staff, finance, know-how or property which amalgamation may achieve. That desire or need may be in respect of a single project, or a continuing relationship. …

4.75    There is an initial question as to the meaning of a ‘joint venture’. The problem here is that joint ventures, as referred to in common parlance, take so many legal forms. In the ensuing discussion the Committee has regarded a joint venture as being an association between two or more enterprises to carry on together a joint activity... The joint activity need not require the creation of a separate corporation or partnership; there may merely be physical pooling of assets but retention of individual ownership. Alternatively, a separate joint organisation may be formed and it may, or may not, have a separate legal existence (e.g. company or partnership). …

292    According to the ACCC, the Swanson Committee adopted a definition of “joint venture” that operated by reference to the nature of its activities, rather than its legal form. That definition turned on whether the activities of the putative joint venture were truly “joint”, in the sense of involving some contribution by each of the putative joint venturers. It was in this context that the Swanson Committee referred to the pooling of such things as plant, equipment, finance, know-how or property. What was envisaged was that to constitute a “joint venture”, there must be some genuine and bona fide endeavour, to which each of the putative joint venturers made a real contribution.

293    The ACCC submitted that this concept of “joint venture” was retained with the introduction of s 76C into the TPA by the 2006 Amending Act. Consistently with the quoted passage from the Swanson report, the Explanatory Memorandum to what became the 2006 Amending Act indicated that the definition in s 4J requires some genuine joint activity (see at 74):

Section 4J defines a joint venture to be ‘an activity in trade or commerce…carried on jointly by two or more persons’ or ‘an activity in trade or commerce…carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly’. Satisfying this requirement will ordinarily require the parties to provide evidence that the activity in question is separable from the activities they are individually engaged in and evidence of each party’s contribution to that activity, for example, the capital or skill.

294    The ACCC submitted that this passage emphasises that to prove the existence of a joint venture for the purposes of ss 4J and 76C, a person must be able to demonstrate that the activities in question are truly joint and distinguishable from the activities of the individual joint venturers, and that each putative joint venturer makes some real and substantial contribution to the putative joint venture.

295    In some respects to repeat what has been previously discussed, the ACCC submitted that in the present case, the primary judge found that Buffalo’s sole contribution in connection with the putative joint venture was procuring the withdrawal of the MMNL EOIs for the Mount Penny and Glendon Brook coal release areas (at [483]). As his Honour put it, “That was fairly much all that Buffalo and its associated parties had to do”. His Honour observed that, “the promises made by Cascade to establish a joint venture… [were] entirely referable to the promises made by the Buffalo interests to procure the withdrawal of the MMNL EOIs for the Mt Penny and Glendon Brook coal release areas” ([483]). His Honour described this as “the essence of that which Buffalo and its associates committed to do” ([483]). According to the ACCC those findings were sufficient to demonstrate that the Buffalo agreement did not, as a matter of reality and substance, contemplate that there would be any joint activity in trade or commerce carried on by Cascade and Buffalo. The ACCC said that this was not an arrangement whereby two parties wished to pool plant, equipment, finance, know-how or property to carry out some joint endeavour. Rather, what was contemplated was that Cascade would simply reward Buffalo for withdrawing the MMNL EOIs for Mount Penny and Glendon Brook by conferring a 25% share of Cascade’s resulting interest in Mount Penny. But the ACCC submitted that a transaction of that kind can only be described as “joint venture” in the sense that any anti-competitive, collusive arrangement might be so described. It is not a transaction that involves the parties jointly engaging in some activity in trade or commerce as required by s 4J.

296    Now the ACCC had to accept that notwithstanding his Honour’s finding at [483], he also found that the relevant joint activity was established in the present case because Buffalo was contributing intellectual property, land and capital to the joint venture ([552] to [554]), and was jointly engaged with Cascade in the activity of exploring and developing Mount Penny ([558]). But the ACCC says that each of those conclusions was in error.

297    With respect to the contribution of intellectual property, the ACCC submitted that the Buffalo agreement contained what the primary judge characterised as “somewhat vague and amorphous promises” that Buffalo would contribute intellectual property and further assistance ([483]). And according to the ACCC, the evidence of Mr Poole was that those promises were of no substance. Mr Poole said that he proposed the inclusion of that language in the Buffalo agreement to ensure that there was some form of consideration sufficient to create a binding contract. According to the ACCC, the fact that Mr Poole thought that Buffalo was providing no consideration for the joint venture absent what it described as this “confected reference” demonstrated that Buffalo was not contributing to any joint activity at Mount Penny.

298    Further, with respect to the contribution of land, according to the ACCC the primary judge appeared to accept a submission by the Cascade respondents that the putative joint venture was constituted, in part, by a “pooling of assets” effected by the Landowners agreement ([552]). But the ACCC submitted that that submission was at odds with his Honour’s conclusion at [548] that the only parties to the joint venture were Buffalo and Cascade (or their nominees). Buffalo was not a party to the Landowners agreement and did not own any of the land conveyed under that agreement. Further, the primary judge found (at [473]) that the parties to the Landowners agreement did not join in the promises made by Buffalo under the Buffalo agreement. In light of those findings, according to the ACCC it is unclear how his Honour could have reasoned that Buffalo was contributing land through the mechanism of the Landowners agreement. The ACCC submitted that the primary judge should have found that Buffalo was not contributing land to the joint venture, whether under the Landowners agreement or otherwise.

299    Further and as we have said, with respect to capital, according to the ACCC there was no obligation on Buffalo to contribute financially to the joint venture. The terms of the Buffalo agreement provided that Buffalo would not be liable to contribute to the costs of the joint venture “prior to the earlier of the, granting of the Mining Approval or minimum exploration expenditure of A$10m” ([320]). But even upon one of those events occurring, the ACCC said that Buffalo was not required to contribute funds to the joint venture.

300    Now in any event, and contrary to the ACCC’s position, the primary judge rejected the proposition that these matters negated the existence of the putative joint venture for the purposes of s 4J. His Honour said that “[t]he fact that a party may elect to withdraw from the joint venture in the future, or diminish its participation in it, does not mean that there is no[t] presently a joint venture” ([552(a)]). But according to the ACCC, as a general statement that proposition is unobjectionable but it tended to misstate the factual circumstances before his Honour. According to the ACCC the relevant inquiry is whether Buffalo made some contribution to the exploration and development of the Mount Penny coal release area such that it could be said that it was engaged in a joint activity in trade and commerce with Cascade in that regard. But under the terms of the Buffalo agreement, Buffalo had no obligation at any time to fund the exploration and development of Mount Penny. If it elected not to do so, its interest might be diluted, but that consequence according to the ACCC did not alter the circumstance that it was free to make no financial contribution whatsoever. In those circumstances, so the ACCC submitted, his Honour erred in finding that Buffalo had agreed to make some financial contribution to the exploration and development of Mount Penny.

301    Further, the ACCC submitted that there were further indicia to suggest that, in reality, the Buffalo agreement did not give rise to, and was not intended to give rise to, any joint activity between Cascade and Buffalo in trade and commerce. When the EL for the Mount Penny coal release area was ultimately granted, all of the activity of exploring and developing Mount Penny, and of overseeing that exploration and development, was carried out by Cascade and its wholly-owned subsidiary, Mt Penny Coal Pty Ltd (Mt Penny Coal). But Buffalo was not involved in the formation of Mt Penny Coal, and had no ownership interest in Mt Penny Coal. The operations of Mt Penny Coal were directed by Cascade without the involvement of any representatives of Buffalo. According to the ACCC, the fact that the actual activity of exploring and developing Mount Penny was carried out by Cascade and Mt Penny Coal without the involvement of Buffalo was significant because that was the very activity which the primary judge said was to be carried out jointly by the putative joint venturers. Accordingly, so the ACCC submitted, the circumstance that those activities were performed unilaterally by only one of the putative joint venturers was clear evidence that there was no joint activity in trade or commerce for the purposes of s 4J.

302    Further, according to the ACCC the 6 June 2009 amendment to the Buffalo agreement provided that Buffalo had an option to obtain an interest, and otherwise had no interest, in the relevant “joint venture” entity. This further attenuated any possible joint venture, so the ACCC submitted.

303    Again, the ACCC says that the reality was that Buffalo contributed nothing of any substance to the putative joint venture, whether in terms of property, knowhow or capital, it was not involved in the exploration and development of Mount Penny in any respect, and it had no interest in, or control over, the entity which was engaged in that activity. According to the ACCC, taking into account those circumstances as a whole, it could not be said that as a matter of reality and substance Buffalo and Cascade were engaged in “a joint activity in trade or commerce” for the purposes of s 4J. Accordingly, it is said that his Honour erred in finding otherwise.

304    We reject the ACCC’s contentions.

305    In our view the primary judge correctly held that the Buffalo agreement identified the joint activity to be carried out. Moreover, and as his Honour found, s 4J and the general law “do not require that the physical activity to be undertaken at Mt Penny be carried on by the parties together” ([558]).

306    Further, as we have already indicated, the ACCC’s submission which treats [483] as the primary judge holding that Buffalo’s only obligation, and the only consideration given by it, was the withdrawal provision, is incorrect. There was additional consideration constituted by the obligation to fund the exploration activities of the joint venture and provide the intellectual property, as the primary judge held ([551], [552]). Further, Mr Brook provided Cascade with reports on a USB stick. Further, the Buffalo agreement makes plain that Buffalo assumed an obligation to contribute to the costs of the exploration undertaken by the joint venture and that the ACCC’s submission that Buffalo was not required to contribute funds to the joint venture is incorrect.

307    Further, the primary judge was correct to conclude at [552] that the circumstance that Buffalo would not be required to contribute money unless the threshold was satisfied did not place the joint venture beyond the reach of s 4J. It simply meant that the occasion for Buffalo to contribute money was deferred until relevant defined circumstances eventuated ([552]). Further, the Buffalo agreement and the Landowners agreement when read together specifically contemplated a pooling of assets, which was one of the hallmarks of a joint venture ([552]). Further, the fact that one party to a joint venture may contribute ideas, assets or skills that ultimately are not used does not change the nature of the arrangement between the parties.

308    But in any event, even if the actual contribution made, or proposed to be made, by Buffalo to the joint venture was minimal, that would be immaterial. Mr Brook’s evidence confirmed that the Obeids had intended, from the outset, that their participation in any mining venture would be “silent and passive”. As the respondents point out, many joint venture partners in a variety of industries including mining could be described aptly in those terms. Moreover, a joint venture does not cease to answer the description of s 4J simply because one of the joint venture partners performs, or is expected to perform, a smaller role than the other in the actual conduct of the joint venture activities. As the primary judge accepted (at [555]), a joint venture may exist notwithstanding that the contributions by the joint venture parties are unequal or disparate.

309    Further, and as we have said, if Buffalo did not provide funding and suffered dilution, any dilution of Buffalo’s interest would necessarily involve an enhancement of Cascade’s interest in the joint venture and would be a contribution.

310    Further, the ACCC’s submissions concerning what ultimately occurred when the EL for the Mount Penny coal release area was granted depend upon hindsight analysis. Those considerations are not entitled to significant weight in assessing whether as at 5 June 2009 the withdrawal provision was for the purposes of a joint venture.

311    Further, we agree with the respondents that the question is not whether, as at the time of entry into the Buffalo agreement, Buffalo and Cascade were engaged in any joint activity in trade or commerce. Rather, the issue under s 76C was whether the respondents established that, as at 5 June 2009, the withdrawal provision was for the purpose of a joint venture. In our view the primary judge has not been shown to have made any operable error in holding that it was for that purpose.

312    Sixth, it is said by the ACCC that the primary judge erred in finding that parties were engaged in a joint venture for the purposes of s 4J in circumstances where the joint venture was to be an incorporated joint venture in accordance with the 6 June amendment, but no joint venture company was ever created. Under the 6 June amendment, the ACCC says that the type of joint venture in contemplation by the parties was that described in s 4J(a)(ii) being one carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on a joint activity in trade or commerce by means of their joint control or ownership of that body corporate. But the ACCC says that no such company was ever incorporated and so the intended joint venture never came into being.

313    Further, the ACCC says that whereas the Buffalo agreement had contemplated that the joint venture might be incorporated or unincorporated, the reference to an unincorporated joint venture was expressly deleted by the 6 June amendment. So, according to the ACCC, it is clear that with effect from 6 June 2009, the parties did not intend to operate as an unincorporated joint venture. Accordingly, so the ACCC submits, the primary judge should have found that the joint venture contemplated in the Buffalo agreement, as amended by the 6 June amendment, was never formed. Therefore, so the ACCC says, in the absence of any such joint venture the defences under s 76C could not operate.

314    But the ACCC’s point should be rejected. The ACCC has engaged in hindsight analysis concerning the 6 June amendment, which in any event was not signed until the following year. The real question is the relevant purpose as at 5 June. Moreover, and as we have already said, the joint venture did not need to be constituted as at 5 June.

315    Seventh, it is said by the ACCC that the primary judge erred in finding that the withdrawal provision did not have the purpose, effect, or likely effect of substantially lessening competition as required to enliven the defence in s 76C ([565]). The ACCC says that his Honour stated that conclusion without identifying his underlying reasons.

316    According to the ACCC, the respondents bore the onus of establishing that the withdrawal provision did not have the proscribed purpose, effect or likely effect. And whilst the ACCC accepted that the respondents adduced evidence on the question of purpose, the respondents made no attempt to prove that the withdrawal provision did not have the effect or likely effect of substantially lessening competition. According to the ACCC, to discharge their onus in that respect, the respondents were required to negate the existence of any real chance of a commercially relevant or meaningful lessening of competition flowing from the withdrawal provision. Moreover, according to the ACCC, in order to prove these matters, the respondents were required to identify the relevantly affected market in which the competition occurred. But they made no effort to do so. In summary, it contended that in light of the respondents’ failure to adduce any evidence on these matters, the primary judge ought to have rejected the defences under s 76C.

317    Again, we reject the ACCC’s submissions on this aspect.

318    The primary judge stated his reasons in respect of this question at [564] and [565]. Further, it is not in doubt to us that the market in which the question of competition was to be assessed was the market for the supply and acquisition of the services particularised in the ACCC’s further amended statement of claim (at [97]).

319    In our view there is adequate support for the primary judge’s conclusion that the provision did not have the purpose, and did not have and was not likely to have the effect, of substantially lessening competition in the market for the acquisition or supply of the services particularised in [97] of the further amended statement of claim.

320    First, the withdrawal provision was not included in the Buffalo agreement for the purpose of substantially reducing competition between Loyal or Voope and Cascade. Rather, as we have already said, the purpose was to contribute to the foundation, protection, subsistence and success of the proposed joint venture.

321    Second, by 5 June 2009, MMNL had already determined that the MMNL EOIs would not proceed. Mr Poole was told that this was so. And Mr Brook admitted that it is likely he told Mr Poole this. That decision had been made by MMNL the previous month.

322    Third, even if Loyal, Voope or Buffalo could obtain or control ELs for Mount Penny or Glendon Brook, Loyal, Voope or Buffalo could only do so if the MMNL EOIs were to succeed. But neither Loyal nor Voope nor any other relevant person or entity including Buffalo had the financial capacity to satisfy the financial contribution conditions of the MMNL EOIs or had any intention of doing so. Accordingly, in the absence of a joint venture involving Cascade, there was no prospect that Loyal, Voope, or Buffalo at any time would succeed in obtaining or controlling an EL. We agree with the respondents that because each of Loyal, Voope and Buffalo lacked the financial capacity or intention, on its own, to perform the relevant function, namely, obtaining the “prize” of being invited by the Minister to apply for and obtain an EL for Mount Penny or Glendon Brook, the inclusion of the withdrawal provision in the Buffalo agreement did not substantially lessen competition.

323    Fourth, as at 5 June 2009, neither Loyal, Voope nor Buffalo had, or had expressed, any interest in an EL over Glendon Brook. And in this context, Mr Brook told Mr Poole on 3 June 2009 that he had no interest in Glendon Brook. This reflected the fact that, unlike Mount Penny, the Obeids did not have any interest in the land surrounding Glendon Brook.

324    In our view, and in summary, the primary judge was correct to conclude at [567] that, had all other elements of primary liability been established, nonetheless the respondents would have had a defence under s 76C in relation to any contravention of s 45(2)(a)(i) of the TPA.

CONCLUSION

325    For the foregoing reasons the ACCC’s appeal will be dismissed. We see no reason why costs should not follow the event.

Associate:

Dated:    4 September 2019

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