Federal Court of Australia

Delta Building Automation Pty Limited v Australian Competition and Consumer Commission [2025] FCAFC 119

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants are to pay the costs of the respondent, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from findings made by the primary judge that the appellants engaged in an attempt to make, in the case of the first appellant (Delta), and an attempt to induce, in the case of both Delta and the second appellant, Mr Timothy Davis, an arrangement or understanding proscribed by s 45AJ of the Competition and Consumer Act 2010 (Cth) (CCA) in contravention of s 76(1) of the CCA: Australian Competition and Consumer Commission v Delta Building Automation Pty Ltd [2023] FCA 880 (primary judgment and J).

2    The primary judge found that the appellants had engaged in attempted cartel conduct in relation to a tender for the replacement of a building management system for the National Gallery of Australia (NGA) in Canberra.

3    The attempts were found to have been made in a meeting at a coffee shop in Canberra on 18 December 2019 between Mr Davis and Mr Anthony (Tony) McEvilly, the principal of Logical Electrical Solutions Pty Ltd (LES), a competitor to Delta in the supply of building management systems (18 December 2019 meeting).

4    The appellants seek to challenge the findings made by the primary judge with respect to both the conduct and intent elements of s 45AJ of the CCA. They do not, however, seek to disturb any findings of fact made by the primary judge. Rather, the appellants challenge the reasoning process and conclusions of the primary judge on those findings.

5    As to conduct, the appellants contend that Mr McEvilly’s account of the discussion at the 18 December 2019 meeting, as accepted by the primary judge, did not rise above preparatory conduct and was not immediately connected, or proximate, to the proscribed arrangement or understanding found by the primary judge.

6    As to intention, the appellants contend that the primary judge erred in finding that the matters advanced by Mr Davis for seeking to meet with Mr McEvilly were not objectively logical or credible and erred in finding that Mr Davis must therefore have had the proscribed intention.

7    We address the primary judge’s reasoning process and conclusions in our consideration of the contentions advanced by the appellants in support of their three appeal grounds.

8    For the reasons advanced below we have concluded that none of the appeal grounds have been established, and the notice of appeal must be dismissed, with costs.

Factual Background

9    The following background facts, as found by the primary judge, were not disputed by the appellants.

10    During 2019, Delta was the exclusive distributor of the “Delta Controls”, a building management system brand in the Australian Capital Territory. Mr Davis was the sole and managing director of Delta: J [14].

11    In general terms, a building management system is a computer-based system that monitors and controls the internal environment of buildings. Such systems extend to areas such as air conditioning, ventilation, lighting, closed-circuit television (CCTV), lifts, utilities, security systems, and fire systems: J [12].

12    In 2019, LES was the exclusive supplier of the Automated Logic Corporation (ALC) brand of building management systems, also known as Web Control or WebCTRL. Mr McEvilly was the general manager and his wife, Ms Karen McEvilly, was the sole director and shareholder of LES: J [15].

13    At the time of the 18 December 2019 meeting and during the first instance trial, Delta and LES were competitors in the market in the ACT for the design, installation and maintenance of building management systems: J [16].

14    At all relevant times, the NGA had two building management systems. The original part of the NGA building in Canberra, constructed in 1982, was served by a building management system provided by Honeywell Limited (Honeywell BMS), which reached the end of its life in 2019. From approximately October 2019, the Honeywell building management system was maintained by Delta: J [17]. A later adjacent extension to the NGA building was served by an ALC BMS that was maintained by LES: J [17].

15    Prior to 2019, however, the NGA had decided that the Honeywell BMS would be upgraded (BMS upgrade). The BMS upgrade was always going to be a “valuable” and “prestigious” contract: J [19].

16    On 31 July 2019, Mr Nicholas Xirakis, the Head of Capital Works at the NGA at the time, asked Mr Davis during a phone call whether Delta could provide a proposal to undertake servicing and maintenance on the Honeywell BMS: J [132].

17    At the time of this call, Mr Davis did not consider the maintenance contract for the Honeywell BMS to be in and of itself commercially attractive. Mr Davis, however, viewed the maintenance contract as a “potential stepping-stone” towards obtaining the work for the BMS upgrade: J [133]. Mr Davis thought that Delta was “very likely to win” the BMS upgrade if it could secure the maintenance contract for the Honeywell BMS: J [166(c)].

18    On 13 September 2019, Mr Davis and Mr Hendra Nugraha, the National Engineering Manager at Delta at the time, had a meeting with Mr Xirakis to discuss the BMS upgrade: J [142]. On the same day, Mr Xirakis sent an email to Mr Rodney Mitton and Mr Jason Bills of the NGA’s project manager, Manteena Pty Ltd (Manteena), which was copied to Mr Davis and Mr Nugraha, directing Manteena to commence discussions with Delta “in relation to all infrastructure projects going forward excluding 1B”: J [142]. Mr Nugraha and Mr Davis understood that the infrastructure projects referred to in this email would include the BMS upgrade: J [143].

19    As at mid-September 2019, Mr Davis and Delta were confident of being awarded the BMS upgrade (J [151]) and did not expect that there would be any formal competitive tender for the BMS upgrade: J [154].

20    On approximately 25 October 2019, however, Mr Nugraha was informed by Mr Tava Sitauti, a Principal Project Delivery Consultant with an engineering firm, Steensen Varming, at the time, that a representative of Schneider, a competitor of LES and Delta, had contacted the NGA requesting tender documents for the BMS upgrade: J [190].

21    After receiving this information, Mr Davis telephoned Mr Xirakis to obtain a signed copy of the maintenance contract as soon as possible: J [190]. Mr Davis was “in a rush” to have the maintenance contract signed because he believed the maintenance contract would provide Delta a “significant advantage” if the BMS upgrade was put out to a tender that was not limited or closed: J [190].

22    Mr Davis returned the executed maintenance contract on 28 October 2019: J [191]. He was, however, “nervous” that the NGA would elect to engage LES instead to perform service and maintenance on the Honeywell BMS and had reduced confidence that Delta would be awarded the BMS upgrade: J [192].

23    On 2 December 2019, Mr Nugraha informed Mr Davis in a series of text messages that he had been told by Mr Sitauti that the NGA had decided to take the BMS upgrade to a competitive tender limited to two tenderers, being Delta and LES. This was the first time that Mr Davis had been informed that there would be a competitive tender process for the BMS upgrade: J [200] – [202].

24    On 3 December 2019, Mr Sitauti attended a stakeholder consultation meeting with Manteena and representatives of the NGA. He called Mr Nugraha and asked him to provide a summary outlining the advantages of the Delta BMS when compared with the ALC BMS. That same day, Mr Nugraha consulted Mr Davis and sent him a draft email setting out the requested summary. Following various amendments, Mr Davis approved Mr Nugraha sending the amended email. Mr Nugraha sent the email to Mr Sitauti later that day: J [203].

25    On 17 December 2019, Mr Davis called Mr McEvilly to arrange the 18 December 2019 meeting: J [207], [241] (17 December 2019 telephone call). Mr Davis and Mr McEvilly had known each other for 30 years, however, they had a “purely business relationship” as competitors in the same industry, and before the second half of 2019, Mr Davis could not recall having spoken to Mr McEvilly for many years: J [104].

26    On 18 December 2019, Mr Davis and Mr McEvilly met at the Tulips Café in Canberra: J [209].

27    The primary judge accepted Mr McEvilly’s account of the conversation that took place during the 18 December 2019 meeting at J [384]. This conversation, as it is set out in Mr McEvilly’s affidavit affirmed on 18 August 2021, is reproduced below (with quotation marks removed and the names of Mr Davis and Mr McEvilly replacing “Me” and “Tim”, respectively):

[45]    At about 10 am on Wednesday, 18 December 2019, I [Mr McEvilly] met with Tim [Mr Davis] at the Tulipscafe in Pialligo (Tulips Meeting). The meeting lasted for approximately 15 to 20 minutes. When I arrived, I saw Tim was already there and had a table in the cafe. Tim greeted me and we said words to the following effect:

Mr McEvilly:     Hello.

Mr Davis:    Hello, how are you? Would you like a coffee?

Mr McEvilly:    Yes thanks.

[46]    Tim then went to the counter to order me a coffee. After he returned, Tim and I had a conversation in words to the following effect:

Mr Davis:    Look mate, I know you’ve had a long association with the gallery. To appease you, I would like to offer you a payment so that you are not wasting your time. The tender is going to be released early in the New Year. There will only be two tenderers and I am confident to win even from second place.

Mr McEvilly:     Who do you know at the gallery?

Mr Davis:     You know I can’t tell you that.

Mr McEvilly:     Look Tim, thanks for the offer but, if we get the opportunity to tender for this project, we will do our best to put forward a competitive bid in an attempt to win it. I won’t be doing anything else.

[47]    As we were getting up and walking out the door, I recall Tim and I exchanged words to the following effect:

Mr Davis:    I may give you a call when the tender comes out, depending on the format.

Mr McEvilly:     Look okay mate whatever.

28    There was no discussion at the 18 December 2019 meeting about subcontracting or a joint tender, or about LES being paid to assist Delta with any integration work: J [359].

Legal principles

29    To establish an attempt to induce a proscribed arrangement or understanding for the purposes of s 45AJ and s 76(1) of the CCA, both a conduct element and intention must be established: Australian Competition and Consumer Commission v Australian Egg Corporation Ltd (2017) 254 FCR 311; [2017] FCAFC 152 at [92] (Besanko, Foster and Yates JJ); Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168 at 183-4; 55 ALR 527 (Toohey J); Trade Practices Commission v Tubemakers of Australia Ltd [1983] FCA 93; (1983) 47 ALR 719 at 743-744 (Toohey J). The following section is a summary of the main principles underlying these two elements, followed by a discussion of two contentious issues that arose during the parties’ submissions, being whether the conduct element requires the arrangement or understanding to be capable of assent, and whether intention requires knowledge of the essential facts.

30    The necessary conduct must be a “step towards” the commission of a contravention that is “immediately and not remotely connected with it”, and conduct that is preparatory or “merely remotely connected” to the contravention is insufficient: Egg Corporation at [93] citing Tubemakers at 736 (Toohey J) and Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 7 FCR 534; [1985] FCA 403 at 538-539 (Bowen CJ, Smithers and Morling JJ).

31    Inducement requires that there be “an affirmative or positive act or course of conduct” directed to the person the object of the inducement: Egg Corporation at [93] quoting Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2002] FCA 824 at [112] (Goldberg J). Therefore, “mere persuasion” without a “promise or threat” may be sufficient to be an attempt to induce: The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 at 164; (1986) 65 ALR 429 at 439 (Pincus J); Egg Corporation Ltd at [93].

32    In Tubemakers, Toohey J noted at 736 that “a statement relied upon to found an allegation of attempt must carry within its terms the potential for an arrangement or understanding”, and it would be “hard to visualise” a “statement made quite unilaterally of intention to do something” as an attempt to make an arrangement or arrive at an understanding, where there is no express or implied suggestion that the other might act the same way.

33    The Full Court, however, acknowledged in Parkfield Operations at 539, that it is not necessary for any arrangement to be in place or even “readily able to be effected”, finding that it was sufficient that the respondents had “sought to persuade” petrol station owner, XL Petroleum Pty Ltd, to enter into an arrangement to increase prices.

34    Likewise, in Australian Competition and Consumer Commission v BlueScope Steel Limited (No 5) [2022] FCA 1475 (BlueScope (No 5)) at [147], O’Bryan J found that while there must be an indication or communication of assent for an arrangement to be “finally arrived at”, assent is not necessary in cases of an attempt to induce a person to reach an understanding:

…An inducement ordinarily refers to some proffered advantage or disadvantage, promised or threatened, which will follow if the object of the inducement adopts or fails to adopt a stipulated course of action…It is not possible to define in any rigid or narrow manner the categories or types of conduct that may constitute inducing or attempting to induce a person to reach a price fixing understanding within s 76(1)(d). The conduct may involve a course of meetings, communications and other dealings in which inducements are proposed or offered and which are directed at reaching a consensus, or a meeting of minds, about the level of prices to be charged by one or more of the parties. It can be accepted that, for a consensus or meeting of minds to be finally arrived at, there must be some communication or indication of assent from one party to the other whether by words or by conduct. However, an attempt to induce a person to reach a price fixing understanding does not require assent to be achieved…

35    Further, it is not necessary for “precise terms” of the proposed arrangement to be formed, with the Full Court in Egg Corporation stating at [94]:

For the purposes of both elements of an attempt, that is to say intention and conduct, it is not necessary for the precise terms of the proposed arrangement or understanding to have been formulated…another way of putting the point is that it is not necessary for an attempt to be made out to establish that the relevant conduct had reached an advanced stage. Having said this, it is perhaps trite to note that the more advanced the conduct, the more likely it is that the inference of the necessary intention will be drawn.

36    Accordingly, it is unnecessary to establish the particular form and content of the proposed agreement, and an attempt to induce may be found even if the form of the proposed agreement is “unparticularised, undeveloped and inchoate”, notwithstanding that “the uncertain and general nature” of putative arrangements can make pinpointing “conduct or words referrable to such an arrangement difficult”: Egg Corporation at [83], [137] quoting, with approval, Australian Competition and Consumer Commission v Australian Egg Corporation Ltd [2016] FCA 69; (2016) 337 ALR 573 at 590-591 (White J) (Egg Corporation PJ).

37    Ultimately, conduct venturing beyond preparation and into a “positive attempt to induce” that is “not too subtle, too tentative or too remote” will be sufficient for the conduct element: McPhee & Sons (Australia) Pty Ltd v ACCC [2000] FCA 365; (2000) 172 ALR 532 at [120] (Black CJ, Lee and Goldberg JJ).

38    In respect of the intention element of an attempt to induce, the relevant intention is to “bring about the proscribed result”, being the making of an arrangement or the reaching of an understanding: Egg Corporation at [92]. In other words, the intention is acting “with the purpose of” bringing about that which is being attempted, requiring proof that the relevant party “subjectively” intended to bring about the arrangement or understanding: Tubemakers at 737; Egg Corporation PJ at [74].

39    It is not necessary to “prove that it was accompanied by or included an expectation of success or a belief that the purpose would be achieved”: Egg Corporation at [92].

40    The key difference between the requisite intent for an attempted contravention as opposed to an attempt to induce a contravention was identified in BlueScope (No 5) by O’Bryan J at [98]:

The relevant intention that must be established is an intention to bring about that which is attempted: Tubemakers at 737 and 743 per Toohey J…As noted above, Tubemakers concerned an attempt to contravene a provision of Pt IV within the meaning of s 76(1)(b), whereas Australian Egg Corporation (like this case) concerned an attempt to induce a person to contravene a provision of Pt IV within the meaning of s 76(1)(d). In the context of an attempt to induce a person to arrive at an understanding containing certain provisions, it would seem to be appropriate to refer to the intention element as requiring an intention to induce the person to arrive at that understanding. Otherwise, the distinction between the conduct described in paras (b) [attempted to contravene such a provision] and (d) [induced, or attempted to induce, a person, whether by threats or promises or otherwise, to contravene such a provision] of s 76(1) would be lost. In practice, though, there will not be any material difference between the two descriptions of the requisite intent – the conduct, involving inducement, must be intentionally directed to the making of an arrangement or the reaching of an understanding.

(Emphasis added.)

41    Intention more generally is a question of fact that may be proved by direct evidence, including admissions, or by inference from primary facts and evidence considered as a whole: Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 at 505 (Mason CJ, Deane and Dawson JJ); Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 at 580 (Dawson J); Vallance v R (1961) 108 CLR 56; [1961] HCA 42 at 83 (Windeyer J).

Appeal grounds

42    The appellants rely on the following grounds of appeal in their amended notice of appeal:

Conduct element

1.     In determining the conduct element of the alleged attempted contraventions, the primary judge erred in finding, at J[10] and [407] - [410], that the Second Appellant, Mr Davis, took both the necessary steps immediately connected to the commission of the alleged contravention of s 45AJ by the First Appellant, Delta, and an affirmative and positive act directed towards inducing Logical Electrical Solutions Pty Ltd (LES) to make the alleged arrangement or to reach the alleged understanding, in circumstances where, on the primary judge’s findings:

(a)     Mr Davis did not propose to Mr McEvilly during the 18 December conversation any way for Mr Davis to control the outcome of the BMS Upgrade Tender process: J[374];

(b)     Mr Davis did not, at any time during the 18 December 2019 conversation, say to Mr McEvilly that LES should not bid, or should put in a cover price, for the Tender: J[375];

(c)     on Mr McEvilly’s account of the 18 December 2019 conversation:

(i)     there was no proposal, either express or implied, that LES should not bid, or should put in a cover price, for the Tender, and Mr McEvilly’s conclusions were based upon assumptions he made: J[375];

(ii)     he did not think that Mr Davis was suggesting that LES should not bid for the Tender, but assumed that what Mr Davis was saying to him was that he “possibly expected” LES to put in a cover price for the Tender: J[372], [375];

(iii)     he left the conversation with “no idea” of what Mr Davis’ plans were moving forward, leaving him to engage in “pure speculation”: J[376], [377];

(d)     Mr Davis at no time expressly stated the precise ways in which the bid for the Tender could have been rigged: J[399], [419];

and ought to have found that the findings of fact supported a conclusion that Mr Davis, at most, engaged in merely preparatory conduct.

Intention element

2.     In determining the intention element of the alleged attempted contraventions, at J[417]-[426], the primary judge erred in:

(a)     reasoning wholly inferentially, including on the basis that any positive conclusion is inferential because Mr Davis’ account of the disputed conversations had been rejected such that his denials of what was said are no longer in play: J[180],[244], [267], [270], [397], [398], [401] [417], [423];

(b)     having adverted, at J[245], in assessing the conduct element, to Mr Davis’ evidence as to his subjective state of mind concerning what he did not intend in seeking the 18 December 2019 meeting, failing then to consider that evidence, including Mr Davis’ unchallenged affidavit evidence that:

(i)     he never intended to discuss:

A.     Mr McEvilly’s pricing or terms for the Tender with him and did not do so: Affidavit [123];

B.     whether Mr McEvilly was going to submit a bid for the Tender and did not do so: Affidavit [123];

(ii)     he did not intend that Mr McEvilly would be under any obligation to do anything in relation to the Tender and did not try to convince Mr McEvilly to give up his ability to do whatever he wanted about the Tender and never intended that he would do so: Affidavit [124];

(c)     failing to consider, in that connection, Mr Davis’ evidence as to his subjective state of mind as to whether he intended to enter into any arrangement or understanding, including Mr Davis’ affidavit evidence that:

i.     it did not even enter his mind to offer money to LES not to bid, or to submit a bid that was uncompetitive, for the Tender: Affidavit [121];

ii.     he never had any intention of asking Mr McEvilly to enter into any sort of commitment and did not want him to take on any obligation to do anything in relation to the Tender: Affidavit [122];

iii.     he knew that it would be wrong for him to talk to LES about LES’ price or terms in relation to the Tender, and he had no intention of doing so: Affidavit [123]; [159];

iv.     he did not have any intention that Mr McEvilly would be under any obligation to do anything in relation to the Tender and never intended to try to convince Mr McEvilly to give up his ability to do whatever he wanted in relation to the Tender: Affidavit [124];

v.     he did not consider what LES was going to do with its Tender or whether it was going to submit a bid or what its price or terms might be: Affidavit [125];

(d)     finding, at J[422], that Mr Davis had advanced no other benign account of his state of mind (see also J[274], [276], [277], [278], [336], [381], [383], [387], [391], [396]);

(e)     failing to consider certain aspects of Mr Davis’ conduct as found that informed an assessment of his intention, being the matters identified in ground 1.

3.     The primary judge erred in finding, at J[423], that the facts as found supported no reasonable inference other than that Mr Davis intended to make an arrangement or arrive at an understanding as alleged by the ACCC, or to induce LES to make such an arrangement or to arrive at such an understanding (see also J[3], [22]-[23], [75] [111], [149], [169], [173], [176], [179], [184], [197], [203], [273], [328], [331], and [365])); and ought to have found, on the totality of the direct and inferential evidence, and where the conduct as found was not well advanced, that an at least equally probable inference was that Mr Davis lacked the requisite intention.

43    Before addressing the grounds of appeal, it is necessary to identify a contextual issue that the appellants submit bears upon both the conduct and intention elements of the contraventions found by the primary judge.

Integration between Delta and LES

44    The contextual issue relied upon by the appellants with respect to both the conduct and intention elements of the contraventions is the requirement for an integration or interface between the LES and Delta systems, if Delta were successful in its tender for the BMS upgrade.

45    The appellants contend that if Delta had been awarded the BMS upgrade tender, it may have been necessary or desirable for Delta to enter into a sub-contract with LES to assist with the integration or interface between the Delta system (which would operate in the main part of the NGA) and the LES system (which would continue to operate in the adjacent NGA extension building that was excluded from the BMS upgrade tender).

46    The appellants submit that the primary judge’s finding that a degree of integration would be necessary and that it may be problematic would be a sufficient reason for Mr Davis to seek to engage with LES and to contemplate that Delta might make a payment to LES in order to assist with integration.

47    Relatedly, the appellants submit that there are contemporaneous records and other evidence which confirm that the need to engage with LES, and the problems associated with integration with LES, were not mere theoretical possibilities, but real concerns of Mr Davis and a topic of discussion within Delta.

48    Next, the appellants submit that the evidence of Mr Nugraha’s 3 December 2019 email to Mr Davis and the NGA consultants, together with his discussions with Mr Davis on that date, are inconsistent with the primary judge’s reasoning. Specifically, they contend that the evidence shows integration was not merely an abstract matter that Mr Davis was considering. Rather, they submit the evidence establishes that, shortly before the 18 December 2019 meeting, Mr Davis was actually considering integration between Delta and LES, and was discussing a particular problem associated with integrating with LES with his most senior technical expert.

49    Further, the appellants submit that, contrary to the primary judge’s reliance on the timing of the 18 December 2019 meeting, in particular his Honour’s finding that the issue of integration could have been raised by Mr Davis in September or October 2019, the fact that the topic of integration was considered and discussed on 3 December 2019 provides a good reason for the timing of Mr Davis’ approach to Mr McEvilly in mid-December 2019.

50    The appellants submit that Mr Nugraha gave evidence that, on or about 16 or 18 September 2019 and 3 October 2019, he raised with Mr Davis the likelihood of needing to “work with” Mr McEvilly “to ensure there’s no clash” and to “liaise” about integration issues arising from water and gas usage monitoring. They submit that this evidence is inconsistent with the finding that integration and the need to engage with LES was purely abstract or hypothetical.

51    The appellants also submit that the evidence of Mr Nugraha – that he gave advice in September 2020 to Mr Weston, Delta’s Minor Works Manager, that he thought that Mr Weston would need to liaise with Mr McEvilly in order to program the LES hardware which controlled the two humidity sensors that Delta was installing in the NGA – provides further support for the view that integration issues were real, rather than abstract. They submit that it also shows that it was likely that Delta would have to engage with LES in order to resolve integration and interface issues as part of the NGA tender if Delta were successful.

Ground 1: Conduct

Overview

52    In this ground, the appellants contend that the primary judge erred in concluding that the conduct of Mr Davis was immediately connected, or proximate, to an arrangement or understanding. They contend that even if Mr McEvilly’s account of the conversation at the 18 December 2019 meeting is accepted, it does not rise above merely preparatory conduct.

53    The critical parts of the conversation at the 18 December 2019 meeting, as found by the primary judge, were the following exchanges between Mr Davis and Mr McEvilly:

Mr Davis:    Look mate, I know you’ve had a long association with the gallery. To appease you, I would like to offer you a payment so that you are not wasting your time. The tender is going to be released early in the New Year. There will only be two tenderers and I am confident to win even from second place.

Mr McEvilly:     Who do you know at the gallery?

Mr Davis:     You know I can’t tell you that.

Mr McEvilly:    Look Tim, thanks for the offer but, if we get the opportunity to tender for this project, we will do our best to put forward a competitive bid in an attempt to win it. I won’t be doing anything else.

…

Mr Davis:    I may give you a call when the tender comes out, depending on the format.

Mr McEvilly:     Look okay mate whatever.

54    The appellants do not challenge the primary judge’s factual findings as to the content of the conversation between Mr Davis and Mr McEvilly at the 18 December 2019 meeting.

55    The appellants advance the following principal and interrelated contentions in support of this ground.

No statement that LES should not bid or not make a competitive bid

56    First, the appellants contend that the BMS upgrade tender could have only been rigged by either (a) LES not submitting a bid, or (b) LES submitting a bid with an uncompetitive price. They submit that at the 18 December 2019 meeting, Mr Davis did not say anything to either effect, and that no such implication could arise from the words that the primary judge found were spoken at that meeting. The appellants submit that Mr McEvilly did not think that Mr Davis was suggesting to him that LES should not bid for the BMS upgrade tender, and the possibility that Mr Davis was proposing that LES put in a cover price was purely speculative.

57    The primary judge reasoned at J [398]:

In the context and way the offer was made by Mr Davis, and rejected by Mr McEvilly without rejoinder, correction or denial, casting what was proposed in terms that are readily comprehensible to both Mr Davis and Mr McEvilly, it was both:

(a)    an attempt to make an arrangement or arrive at an understanding between Delta and LES to rig the bid for the BMS upgrade tender; and

(b)    an attempt by Mr Davis, and through him Delta, to induce such an arrangement or understanding to rig the bid for the BMS upgrade tender,

so as at least to increase materially the chances that Delta would win the tender.

58    His Honour then made the following further findings at J [400]-[401]:

In keeping with Mr McEvilly’s comprehension of what was being proposed, the ways in which the proposed arrangement or understanding would be given effect would be LES agreeing not to submit a bid, LES agreeing to submit a bid that was uncompetitive, LES agreeing to submit a bid at a price in excess of Delta’s bid, or otherwise on terms that would otherwise make Delta’s bid more likely to be successful than LES’ bid.

Put another way, in all the circumstances and on all the evidence considered as a whole, and taking into account the experience and background of both men, the clear implication in Mr Davis making the offer in the context of the meeting that I am satisfied was called by him to discuss the BMS upgrade, was that in one way or another, Mr Davis was proposing that LES not be a genuine competitor in the BMS upgrade tender.

59    The appellants attempt to diminish the availability of the conclusions reached by the primary judge at J [391]-[401] by submitting that his Honour did not consider the following exchange when drawing the implications set out in those paragraphs:

Mr McEvilly:    Who do you know at the gallery?

Mr Davis:    You know I can’t tell you that.

60    They submit that Mr Davis’ refusal to share this information could be interpreted as either (a) his awareness of the impropriety of that conduct, or (b) his concern not to lose a competitive advantage. The appellants contend that neither of these interpretations neatly fits with the suggestion that immediately prior to this exchange, Mr Davis was attempting to induce a cartel understanding. Neither interpretation is inconsistent with the primary judge’s findings. There could be no relevant impropriety in Mr Davis sharing the identity of “who do you know at the gallery” unless it was, as appears plain from the context, a reference to a person who passed on information to Mr Davis that led him to tell Mr McEvilly that Delta would win the tender, even from second place. The impropriety was in such communication from someone at the NGA, not in informing Mr McEvilly of the name of that person. It was an impropriety consistent with rigging the BMS upgrade tender. Nor is there any inconsistency between a person attempting to persuade a competitor to rig a tender and simultaneously not wanting to lose a competitive advantage by disclosing the identity of someone who had provided information to a tenderer that they would still win from second place.

61    The implications drawn by the primary judge are clearly available and compelling. An inference could readily be drawn that the offer by Mr Davis of a payment of money was for the purpose of rigging the BMS upgrade tender. Mr Davis told Mr McEvilly that (a) the money was to be provided “so that you are not wasting your time”, (b) at the tender to be released early in the new year, there will only be two tenderers, and (c) Mr Davis was confident of winning “even from second place”. We do not accept the appellants’ submission that Mr Davis’ confidence in winning the tender necessarily implies that the payment offered could not have related to the BMS upgrade because Delta did not need LES to refrain from bidding or to submit a cover bid. Rather, the more plausible inference is that Mr Davis’ statement of confidence was intended to undermine Mr McEvilly’s belief in LES’s prospects of winning the tender, even if LES submitted a competitive bid, and, thereby to make him more amenable to accepting a payment not to bid competitively by suggesting that LES was bound to lose in any event.

62    The evidence that the appellants now seek to rely upon to contend that Mr McEvilly considered that any proposal for LES to submit a cover price was pure speculation was advanced at trial and carefully considered by the primary judge at J [375]-[377]. After reviewing that evidence at J [375]-[376], the primary judge concluded at J [377]:

It is clear that Mr McEvilly adhered to his affidavit, and did so in a logical and coherent manner. The issue of speculation was directed to what would have happened in the future if he had decided to go along with what Mr Davis was proposing, not speculation as to what Mr Davis meant by what he said. The use of the word “assumption” in context is a reference to what Mr McEvilly drew from the words that were said to him. It is ultimately for the Court to determine what was said, and what it meant.

63    The finding was consistent with the evidence that Mr McEvilly had given in cross-examination. The evidence considered by the primary judge at J [375]-[376] included statements by Mr McEvilly that (a) “I don’t know what Tim’s plans were moving forward”, (b) “So I don’t know what plan he had in store for when the tender came out and what he expected we would do to fall in line”, (c) “I don’t know what his plan was beyond what he told me that day”, and, (d) in response to a question regarding evidence in his affidavit about what he had understood or assumed, he answered “Well, assumed would probably be a better word than understood”.

64    Further, we agree with the primary judge that there was no contradiction between the evidence given by Mr McEvilly in his affidavit as to what he understood and in cross-examination as to what he assumed. In both cases, the understanding or assumption necessarily could not rise higher than a state of mind informed by what Mr Davis had said in the course of the 18 December 2019 meeting. The distinction between an understanding and an assumption can be somewhat elusive, particularly for a lay person not accustomed to subtle differences in meaning and emphasis.

Inconsistent with seeking a commitment

65    Second, the appellants contend that the primary judge erred in not finding that the words used by Mr Davis on 18 December 2019 were inconsistent with seeking a commitment from, or the imposition of any kind of obligation on, LES.

66    The primary judge accepted that the details and precise mechanism by which the bid rigging was to occur were still to be decided, most likely after the BMS upgrade tender had been issued. His Honour was comfortably satisfied, however, given “Mr McEvilly’s immediate rejection of the offer, expression of an intention to submit a competitive bid, and refusal to countenance doing anything else, together with the absence of any demurrer by Mr Davis, in the context provided by the rest of the evidence”, on the balance of probabilities, that “part and parcel of the offer of payment was Mr Davis seeking both a commitment and a corresponding assumption of an obligation to behave in a non-competitive way, sufficient to meet that requirement if it exists”: J [408].

67    We find no error in his Honour’s findings. Mr Davis was plainly advancing a proposal in which he was seeking, in return for a payment, a commitment on the part of Mr McEvilly not to make a competitive bid for the BMS upgrade and a corresponding assumption of an obligation by Mr McEvilly to behave in a non-competitive way by not making a competitive bid.

68    It is therefore unnecessary to consider the “if it exists” qualification that the primary judge added to his findings at J [408].

Not capable of assent

69    Third, the appellants contend that Mr Davis did not make any proposal, express or implied, to Mr McEvilly at the 18 December 2019 meeting that was capable of assent. They submit that, while it was clear that Mr Davis was contemplating a payment, there was no articulation of what Mr McEvilly or LES were meant to do in return to complete the arrangement or understanding, and Mr McEvilly was only able to speculate as to what Mr Davis might have been conveying. They submit that it therefore follows that there could not have been an attempt to make an arrangement or arrive at an understanding, as (a) the words used by Mr Davis were unilateral in that they contemplated Mr Davis or Delta doing something, but did not contemplate a quid pro quo to which Mr McEvilly or LES could rationally agree, and (b) the conduct, being one conversation from which an alleged proposal could only be deduced based on assumption and implication, is “too subtle, too tentative and too remote”, by reference to the expressions used by the Full Court in McPhee at [120].

70    The appellants submit that, even accepting the entirety of Mr McEvilly’s evidence, it does not go far enough because it was not a proposal that LES take any particular step. The appellants further submit that a useful test is to consider what Mr McEvilly would have been assenting to, had he responded “okay” at the 18 December 2019 meeting. They submit that it is unclear whether such assent would relate to the accepting of the payment or to some nebulous form of “play along in the tender”. On the appellants’ account, even if assent was given at that point in the conversation, it is extremely unclear what arrangement or understanding had come to pass. They contend that the burden of the implication is too great to satisfy the standard as set out in Briginshaw v Bringinshaw (1938) 60 CLR 336; [1938] HCA 34, for there to be a proposal capable of assent.

71    The primary judge found that it was clear that both Mr Davis and Mr McEvilly were familiar with tendering processes in the building management system industry in Canberra. His Honour inferred it would have been obvious to both Mr Davis and Mr McEvilly that inherent in one tenderer succeeding over a competitor would be that the competitor either did not submit a bid or submitted a bid that was inferior in some way: J [397]

72    His Honour acknowledged that although the precise manner in which the bid could be rigged was not stated, there were limited alternatives and inferred at J [399] that this was something that:

… would be known to both men given their commercial and tender experience, such that it did not need to be, nor would it be likely to have been, spelt out at that stage. It was a quintessentially tacit offer of the kind to be expected if advanced by one seasoned commercial operator to a like competitor.

73    The primary judge summarised the basis on which the proposal advanced by Mr Davis at the 18 December 2019 was capable of assent in the following terms at J [408]:

While the details and precise mechanism would have had to be decided, most likely after the tender had been released, so as to devise the best method by which to make running with a weaker bid or not at all credible, the offer and what came with it was capable of being accepted by Mr McEvilly on the spot. Mr McEvilly’s immediate rejection of the offer, expression of an intention to submit a competitive bid, and refusal to countenance doing anything else, together with the absence of any demurrer by Mr Davis, in the context provided by the rest of the evidence, the key aspects of which have been detailed in these reasons, leads to comfortable satisfaction, on the balance of probabilities, that part and parcel of the offer of payment was Mr Davis seeking both a commitment and a corresponding assumption of an obligation to behave in a non-competitive way, sufficient to meet that requirement if it exists. In reaching this conclusion, I find that this serves only to make the ACCC’s case stronger, rather than meaning that seeking such a commitment or assumption of an obligation is indispensable to proving an alleged attempt, or attempt to induce.

74    The reasoning of the primary judge is compelling. His Honour has carefully and persuasively construed the words spoken by Mr Davis in the 18 December 2019 meeting in their relevant context.

75    That the proposal made by Mr Davis was capable of assent, notwithstanding the “details and precise mechanism” by which the BMS upgrade tender was to be rigged, is demonstrated by the response of Mr McEvilly to the offer of money made by Mr Davis. Mr McEvilly thanked Mr Davis for the offer but then stated “if we get the opportunity to tender for this project, we will do our best to put forward a competitive bid in an attempt to win it. I won’t be doing anything else”.

76    Mr McEvilly’s response establishes that he understood the offer was to rig the BMS upgrade tender, and his rejection establishes that it was sufficiently clear to him that it was capable of assent. Not least because he did not seek any clarification from Mr Davis before rejecting the offer. Nor, significantly, did Mr Davis seek to correct or contradict Mr McEvilly’s understanding of the purpose for which the payment was being offered.

77    We do not accept the appellants’ contention that it was wrong of the primary judge to find that there was no demurrer on Mr Davis’ part to Mr McEvilly’s rejection of the proposal that he had understood Mr Davis to be advancing. The appellants submit that Mr Davis’ statement “I may give you a call when the tender comes out depending on the format” is consistent with his expectation that LES would bid at the BMS upgrade tender, and, therefore, conveyed a rejection of any suggestion that he was attempting to rig the tender by making a payment to LES not to put forward a competitive bid.

78    The more plausible inferences arising from Mr Davis’ last words referred to at [77] above are that Mr Davis was either accepting defeat or foreshadowing another approach to Mr McEvilly, once the tender is released. Neither is inconsistent with the absence of any demurrer by Mr Davis to the unequivocal rejection by Mr McEvilly of Mr Davis’ offer of money to rig the BMS upgrade tender, as found by the primary judge.

79    Further, as the primary judge found, given their commercial and tender experience, both Mr Davis and Mr McEvilly could readily be inferred to have a keen appreciation of the limited, yet relatively uncomplicated ways in which a tender could be rigged to ensure that a party was likely to be successful. On no view was a proposal to rig a tender for a commercial opportunity so novel or unclear that, absent greater specificity, it would not be capable of assent.

Equally probable the 18 December 2019 meeting related to integration/interface issues with LES

80    Fourth, the appellants contend that it is at least equally probable that the payment that Mr Davis referred to at the 18 December 2019 meeting related to integration or interface issues between the Delta and LES systems, rather than to a rigging of the BMS upgrade tender.

81    To support this submission, the appellants contend that there is contemporaneous evidence that shortly before that meeting, Mr Davis knew of the need to engage with LES in relation to integration and was actually concerned about a particular difficulty associated with it. This evidence included two conversations that Mr Davis had with Mr Nugraha in mid-September 2019 and early October 2019, where Mr Nugraha told Mr Davis that there was a need to liaise with Mr McEvilly in relation to integration issues, and another discussion between Mr Nugraha and Mr Davis on 3 December 2019 about LES being the only BMS vendor to use the ARCNet protocol, which would make it harder to interface between LES and another BMS system, such as Delta. The appellants further seek to rely on the correspondence from September 2020, where Mr Nugraha advised Mr Weston, that he would need to liaise with Mr McEvilly to program the ALC controller to install humidity sensors at the NGV, as Delta did not have the ability to program LES’s hardware. They submit that this evidence demonstrates that the problem with integration was not theoretical, as it was erroneously labelled by the primary judge, but was instead “a real and very specific problem”, which was discussed on multiple occasions, including a fortnight before the 18 December 2019 meeting.

82    The appellants further submit that the conclusion that Mr Davis’ offer of payment was not referable to an attempt to induce a cartel understanding is reinforced by his unchallenged evidence that he knew that it would be wrong to discuss the price or terms of the BMS upgrade tender with Mr McEvilly. The absence of any challenge to this evidence is hardly surprising. It is consistent with the ACCC’s case that an attempt to rig the BMS upgrade tender was unlawful. In any event, in the absence of any challenge to the words that were said at the 18 December 2019 meeting, the position remains that at the meeting, there was an offer of a payment of money and a response that, notwithstanding that offer, LES would be making a competitive bid for the BMS upgrade tender.

83    Finally, the appellants submit that Mr Davis’ final statement at the 18 December 2019 meeting, being “I may give you a call when the tender comes out, depending on the format”, made after Mr McEvilly’s indication that LES would submit a competitive bid, is consistent with a conclusion that the payment offered related to integration or interface. We reject this submission for the reasons set out at [77]-[78] above.

84    There may well have been potential substantive integration and interfacing issues by reason of the evidence before the primary judge, as summarised at [47]-[51] above. The nature, extent and significance of those issues, however, is not the critical matter for determination. As the primary judge correctly identified, the specific matter for determination was whether concerns about integration and interfacing were a credible reason for Mr Davis to organise a meeting at a coffee shop, on short notice, in December 2019, with a person with whom he had no history of personal interaction, to discuss integration or interface issues that might arise in the future between Delta and LES building management systems, prior to the release of any tender, let alone steps to identify a suitable tenderer: J [276].

85    The primary judge emphatically rejected the evidence of Mr Davis that the payment he offered to Mr McEvilly was referable to the margin that LES may have lost by missing out on the service and maintenance contract. His Honour provided the following reasons in support of that rejection, at J [381]-[383]:

Of greater concern is the benign explanation Mr Davis gives for his version of the conversation relating to offering a financial benefit to LES. He suggested that this was raised in the context of a possible need to integrate a Delta BMS replacing the Honeywell BMS for the Original NGA, with the existing and continuing ALC BMS for the NGA Extension. This account does not survive objective scrutiny. First, it was, on any reasonable view, premature to consider whether there would be any significant enough integration problem to warrant raising it at a coffee shop, let alone the nature and extent of any such problem. Secondly, it was unlikely that any useful purpose would have been achieved in raising this with Mr McEvilly at that time, if at all, or that Mr Davis would genuinely have believed that there was any such useful purpose. It is difficult to accept that the conversation would have remained amicable if this had been raised, given Mr McEvilly’s prior adverse reaction to Delta being given what he perceived to be preferential treatment by the NGA, and the at least implied suggestion that this was happening again with sufficient certainty to be talking about subcontracting. It needs to be remembered that Mr McEvilly’s objection was not to Delta being given the maintenance contract per se, but to LES not being given an opportunity to compete for the work, including for the BMS upgrade.

Thirdly, the reference by Mr Davis to paying Mr McEvilly/LES the margin that might have been lost by Delta getting the service contract was his final and most illogical account of that aspect of what he deposed to saying. His first version, given during the course of his s 155 examination, was said by him in response to questioning about the margin on the BMS upgrade contract (rather than any suggestion of the Honeywell BMS service and maintenance contract). Mr Davis admitted that was what he had said in the s 155 examination, but unconvincingly attempted to resile from that in his evidence in this Court, both in his affidavit, and in his evidence in cross-examination. The s 155 examination account made sense because of there being a profit margin on the upgrade contract, and no profit margin on the service and maintenance contract. That original version was closer to the ACCC’s case, which associated the offer of payment with the BMS upgrade tender.

In his affidavit, and in cross-examination upon it, Mr Davis deposed to the reference being to the margin LES may have lost by missing out on the service and maintenance contract. That change and thus that evidence was not plausible. The service and maintenance contract was not valuable because of its profit margin, but rather due to its better positioning of Delta for obtaining the BMS upgrade contract, something that both Mr Davis and Mr McEvilly recognised. By contrast, Mr Davis admitted in cross-examination that the margin on the BMS upgrade contract would have been substantial, perhaps in six figures. I am unable to accept that Mr Davis could sensibly have been referring to offering to compensate LES for the loss of margin on the service and maintenance contract. That means that the margin referred to could only have been the margin on the BMS upgrade contract, such that on any view, Mr Davis was offering payment of some kind to Mr McEvilly in relation to the BMS upgrade contract. This conclusion renders the constancy of Mr McEvilly’s account even more credible and plausible; and it significantly damages Mr Davis’ credit.

86    The primary judge found that a further factor casting doubt on the integration or interface explanation for the 18 December 2019 meeting was that it was convened in the last business week of the year for Delta, in circumstances in which any integration or interface issues could only be properly discovered when the contract specifications were revealed, and where Mr Davis expected the BMS upgrade tender would be released early in the new year: J [388].

87    Again, the primary judge’s reasoning is compelling. Explanations first advanced on critical issues in the course of preparing affidavits and giving evidence in Court that are inconsistent with earlier explanations provided in examinations conducted pursuant to s 155 of the CCA notice (s 155 examinations) understandably require careful scrutiny, paying particular regard to the inherent logic of events. The stark reality, as found by the primary judge, is that any consideration, as at 18 December 2019, of the service and maintenance contract would have been premature, and the value of the service and maintenance contract was not the margin that might be earnt. Rather, as both Mr Davis and Mr McEvilly recognised, the value of the contract was that it better positioned Delta to win the tender for the BMS upgrade. In contrast, his Honour found the margin on the BMS upgrade contract was substantial, as Mr Davis admitted in cross-examination, perhaps in six figures: J [383]; [396].

88    In their written reply submissions at trial, the appellants contended that, contrary to the submissions made by the ACCC, Mr Davis’ s 155 examination was wholly supportive of, rather than presented difficulties for, their argument that the payment proposed at the 18 December 2019 meeting related to integration and interface issues.

89    We do not accept that proposition. Rather, the somewhat extraordinary evidence given by Mr Davis in his s 155 examination was that he had said to Mr McEvilly that he was looking for a way to “compensate him money that he may have lost on the back” of the BMS upgrade and that “perhaps I could add some margin on to my price in relation to the BMS upgrade” that LES “may have otherwise now not got” and then suggested “maybe that margin that he’s going to lose I could add to my price” and then pass it through to Mr McEvilly because:

… as part of the tender which I hadn’t seen at this point, there would have to be an interface component to the automated logic system. Ah so I would be able to subcontract Tony, and perhaps pay him an inflated sum for that work.

90    Mr Davis then further explained in his s 155 examination that what he was discussing with Mr McEvilly at the 18 December 2019 meeting was:

Ah, well I was suggesting to Tony that when the tender comes out, if there’s an integration component I’ll need to get a price from you, um you know you give me that price, I’ll increase that price and add it to my contract sum.

91    On no view is the explanation provided by Mr Davis consistent with any benign reason for the 18 December 2019 meeting; rather, it appears to fall squarely within an undisclosed tender fee arrangement or understanding whereby a successful tenderer compensates unsuccessful tenderers by charging a margin over the price they would otherwise have tendered for a project. Had the primary judge accepted that this was what had been said at the 18 December 2019 meeting, it would in all likelihood have made the conduct of Mr Davis more egregious, as the “payment” to LES would have been funded by the NGA.

92    Equally telling, there was no reference to any perceived integration or interfacing issues or to the service and maintenance contract at the 18 December 2019 meeting, and, as explained above, Mr McEvilly clearly understood the payment offered was referrable to the BMS upgrade, not the service and maintenance contract.

Mere intent not sufficient

93    Fifth, the appellants contend that mere intent to commit an act is not sufficient to amount to a contravention, and the impugned conduct had only reached a stage where Mr Davis could still withdraw from any attempt to make an arrangement or arrive at an understanding with Mr McEvilly. The appellants submit that the conduct must have demonstrated a “fixed irrevocable intention to go on to commit the completed [contravention]”, citing the statement by Lord Diplock in those terms in Director of Public Prosecutions v Stonehouse [1978] AC 55 at 68. Next, they submit that “mere intention to commit an act does not contravene”, and, using the language of Lord Diplock in Stonehouse, Mr Davis must have “crossed the Rubicon and burnt his boats”, which he had not. Further, they submit it was plainly open to Mr Davis to have second thoughts, as he retained complete control as to how to respond to “the law’s injunction not to commit the substantive wrong”.

94    The submissions advanced by the appellants, relying on distinctions between intent and concluded contraventions, are inapposite. An attempt to induce the making of an arrangement or arriving at an understanding containing a cartel provision does not depend on any finding that a person has irrevocably committed themselves to any particular course of action. In any event, the relevant act in this case was Mr Davis making the offer of payment to Mr McEvilly at the 18 December 2019 meeting. By making that offer, Mr Davis had unequivocally crossed the Rubicon and burnt his boats. The position would likely have been different if the evidence did not rise above Mr Davis indicating to a colleague that he had proposed to meet with Mr McEvilly with the intention of offering payment in order to increase Delta’s prospects of winning the BMS upgrade tender. However, the conduct of Mr Davis in the present case has gone far beyond this example.

Knowledge of all essential elements

95    Sixth, the appellants submit that the inchoate status of the alleged contravention had the necessary consequence that the party alleged to have attempted to induce the making of the impugned arrangement or the arrival at the impugned understanding could not have had knowledge of the essential facts that would have rendered the alleged arrangement or understanding unlawful. The appellants cited the reasoning of O’Bryan J in BlueScope (No 5) at [99] in support of the proposition that it was necessary to establish that Mr Davis had knowledge of all the essential facts that would have rendered the alleged arrangement or understanding unlawful. They submit that this is one of the instances of the law demanding a more exacting standard to prove intent for inchoate contraventions.

96    The appellants also submit that the proposal advanced by Mr Davis was too tentative, too vague and too subtle to permit any finding to be made that Mr Davis knew facts sufficient to constitute an arrangement or understanding that contained a cartel provision within the meaning of s 45AJ. They argue it could only be described as an outcome and nothing more.

97    His Honour stated in Bluescope (No 5) at [99]:

It is unnecessary to show that the respondents knew that the contemplated understanding was unlawful. However, knowledge of the essential facts that would have rendered the alleged understanding unlawful is necessary before there can be intent: Giorgianni v R (1985) 156 CLR 473 at 505 per Wilson, Deane and Dawson JJ; Yorke v Lucas at 667 per Mason ACJ, Wilson, Deane and Dawson JJ; Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 (Rural Press (HC)) at [48] per Gummow, Hayne and Heydon JJ.

98    We understand O’Bryan J to be stating no more than that in order to prove intent in the case of an attempt or attempt to induce, the relevant intention that must be established is the intention to bring about the proscribed arrangement or understanding. Each of the authorities cited by his Honour was an ancillary liability case. None of the cases were an attempt or attempt to induce case.

99    It is almost self-evident that if a finding is made that a person has an intention of attempting, or attempting to induce someone, to make an arrangement or arrive at an understanding of a proscribed kind, they must have actual knowledge of all the essential elements of the contravention, because that was their intention. This is not an area of the law in which there is any principled or necessary requirement to impose a more exacting standard on fixing a specific intention on a person in circumstances of an inchoate contravention. A person must necessarily have knowledge of their intention in attempting, or attempting to induce another person, to make a proscribed arrangement or arrive at a proscribed understanding.

100    The Full Court addressed the intention element in an attempt case in Egg Corporation at [92] and [94]:

In order to establish an attempt, an applicant must prove both intention and conduct. The intention is to bring about the proscribed result which in this case is the making of an arrangement or the reaching of an understanding within s 44ZZRJ (Trade Practices Commission v Tubemakers of Australia Ltd [1983] FCA 99; (1983) 47 ALR 719 (Tubemakers) at 737 and 743 per Toohey J). It is not necessary in order to establish the relevant intention to prove that it was accompanied by or included an expectation of success or a belief that the purpose would be achieved (Tubemakers at 736 per Toohey J).

…

For the purposes of both elements of an attempt, that is to say intention and conduct, it is not necessary for the precise terms of the proposed arrangement or understanding to have been formulated. This point was made by the Full Court in Parkfield Operations (at 539) and another way of putting the point is that it is not necessary for an attempt to be made out to establish that the relevant conduct had reached an advanced stage. Having said this, it is perhaps trite to note that the more advanced the conduct, the more likely it is that the inference of the necessary intention will be drawn.

101    Consistently with the statements made by the Full Court in Egg Corporation at [92] and [94] and Parkfield Operations at 539, we do not accept that the ultimate terms of a proscribed arrangement or understanding must be identified with specificity or particularity in order to prove, in an attempt or attempt to induce case, that a person had knowledge of all essential facts that would have rendered an alleged arrangement or understanding unlawful.

102    Nor do we accept that the intent of Mr Davis, as found by the primary judge, can be characterised as “an outcome and nothing else”. In this case, the arrangement or understanding of a proscribed kind was an arrangement or understanding to rig the BMS upgrade tender by making a payment to a fellow tenderer not to advance a competitive bid. The finding that Mr Davis had that intention is sufficient to establish that he had knowledge of all the essential elements necessary to prove the intent element in the attempt to induce contravention found by his Honour.

103    No error has been established. The inchoate status of the proposal did not have the necessary consequence that Mr Davis could not have knowledge of the essential facts that would have rendered the alleged arrangement or understanding unlawful.

Conclusion

104    For the foregoing reasons, none of the alleged errors advanced in Ground 1 have been established. It follows that Ground 1 must fail.

Grounds 2 and 3: Intention

Overview

105    It is convenient to address Grounds 2 and 3 together, as both are directed at the intention element of the alleged contraventions.

106    In these grounds, the appellants contend that the primary judge erred in determining the intention element of the alleged attempted contraventions in two principal respects.

107    First, the appellants contend that the primary judge erred in finding that the facts (as they were found) supported no reasonable inference, other than that Mr Davis intended to make an arrangement or arrive at an understanding as alleged by the ACCC, or to induce LES to make such an arrangement or to arrive at such an understanding. They argue that the primary judge ought to have found, on the totality of the direct and inferential evidence, that an at least equally probable inference was that Mr Davis lacked the requisite intention, and his Honour erred in finding that Mr Davis had advanced no other benign account of his state of mind.

108    Second, the appellants contend that the primary judge failed to consider Mr Davis’ direct evidence as to his subjective state of mind concerning (a) what he did not intend in seeking the 18 December 2019 meeting, and (b) whether he intended to enter into any arrangement or understanding. They submit that on the basis that Mr Davis’ account of the conversation at the 18 December 2019 meeting had been rejected, his Honour thereby erred in reasoning wholly inferentially as to Mr Davis’ intention.

Alternative inferences as to intention

Overview

109    The appellants advance three principal alternative accounts that they contend were benign and able to give rise to at least equally plausible inferences to those drawn by the primary judge in relation to Mr Davis’ intentions in seeking the 18 December 2019 meeting.

Integration and interface issues

110    First, the appellants contend that the integration or interface issues were not purely abstract and provided a genuine reason for Mr Davis to meet with Mr McEvilly on 18 December 2019. For the reasons advanced above at [80]-[92] we do not accept that the primary judge erred in rejecting the contention advanced by Mr Davis that any concern about integration or interface issues provided a genuine reason for Mr Davis to meet with Mr McEvilly on 18 December 2019.

Clearing the air explanation

111    Second, the appellants contend that acceptance of Mr Davis’ evidence that one of the reasons he wished to meet with Mr McEvilly on 18 December 2019 was to “clear the air” did not depend on accepting Mr Davis’ account of his telephone call with Mr McEvilly on 9 October 2019.

112    The appellants submit that the 9 October 2019 telephone call had been initiated by Mr McEvilly, he was clearly agitated, and it was the first contact between them in decades outside a professional context, notwithstanding that Mr McEvilly had helped Mr Davis secure his first job as an apprentice more than 30 years before the 18 December 2019 meeting.

113    The primary judge stated at J [267]:

The respondents do not sufficiently engage with the arguments advanced by the ACCC against the “clear the air” explanation for Mr Davis organising the 18 December 2019 meeting. The evidence highlighted by the ACCC makes it reasonably clear that Mr Davis originally gave an entirely different reason for why he wished to clear the air in his s 155 examination. The revised explanation depends upon his account of the 9 October 2019 telephone conversation being accepted, because without it, there was nothing more than the bare fact of competition to give rise to clear the air about anything. Yet Mr Davis’s account of that prior conversation does not itself make sense, for the reasons given above for accepting the ACCC’s submissions on that topic. It follows that the purpose of clearing the air given by Mr Davis as a reason for organising the 18 December 2019 meeting cannot be accepted by reason of the force of the first two arguments relied upon by the ACCC.

114    It is not readily apparent why the primary judge considered that the “clearing the air” explanation advanced by Mr Davis depended on his account of the 9 October 2019 telephone call being accepted. His Honour had earlier found at J [252]:

It is in substance common ground that the 9 October 2019 conversation had not been friendly because Mr McEvilly was not happy with the advantage he perceived Delta having obtained via being invited to carry out maintenance work on the Honeywell BMS. It simply makes no sense for Mr McEvilly to say that a meeting over a coffee would sound good in the absence of a good reason for them to meet, especially in the absence of any habit, pattern or practice of having done so, and my rejection of Mr Davis’ version of the 9 October telephone conversation. It is in substance common ground that the 9 October 2019 conversation had not been friendly.

115    The matters that the primary judge found at J [252] were common ground suggest that, independently of any rejection of Mr Davis’ evidence of the 9 October 2019 telephone call, there were matters that might provoke the need for a “clearing the air” meeting between Mr Davis and Mr McEvilly.

116    The critical issue, however, is whether “the clearing the air” contention is a more probable explanation, not merely a possible explanation, for Mr Davis to have called the 18 December 2019 meeting. The explanation finds little, if any, substantive support in the words spoken at that meeting. In context, the much more probable inference, as drawn by the primary judge, was that Mr Davis was not offering the payment to Mr McEvilly to “clear the air”, but rather to induce him not to make a competitive bid in response to the imminent call for tenders for the BMS upgrade.

117    In any event, the rigging of the BMS upgrade tender explanation and the “clearing the air” explanation are not mutually exclusive. In order to increase the prospects of Mr McEvilly agreeing to accept a payment not to make a competitive bid in response to the BMS upgrade tender, it was very much in Mr Davis’ interests to “clear the air”, given the acrimonious 9 October 2019 telephone call. Nevertheless, the more probable inference remains the dominant explanation of rigging the BMS upgrade tender, and the “clearing the air” explanation is a subsidiary or incidental explanation to that dominant explanation.

118    It follows that any error by the primary judge in finding that the “clearing the air” explanation advanced by Mr Davis depended on his account of the 9 October 2019 telephone call being accepted was not material.

NGA was not LES’s site

119    Third, the appellants contend that acceptance of Mr Davis’ evidence that another reason he wished to meet with Mr McEvilly on 18 December 2019 was to demonstrate to Mr McEvilly that the NGA was not “LES’s site”, and that Delta would continue to compete vigorously, did not depend on accepting Mr Davis’ account of his 9 October 2019 telephone call with Mr McEvilly . They submit that Mr McEvilly’s evidence of the telephone call clearly demonstrated that Mr McEvilly was being territorial about the NGA.

120    The appellants acknowledge the tension between the “not LES’s site” alleged motivation for the meeting and the “clear the air” alleged motivation, but submit that it “is trite that such a tension exists in many human and commercial interactions”.

121    The primary judge rejected the evidence given by Mr Davis that his motivation to meet with Mr McEvilly was to inform him that the NGA was “not LES’s site”. His Honour stated at J [244]:

He gave as two further reasons for seeking the meeting that he did not want the relationship with Mr McEvilly to continue to be hostile given that Mr McEvilly had helped to get his first job; and also wanted to make it clear to Mr McEvilly that he rejected any suggestion that the NGA was his site or that Delta should make way for LES. To the extent that this evidence relies upon the version of the account that Mr Davis gave of the 9 October 2019 telephone conversation that I have rejected, this account cannot be accepted either.

122    Again, as for the “clearing the air” explanation, it is not readily apparent why the primary judge concluded that the “not LES’s site” explanation could not be accepted because his Honour had rejected Mr Davis’ account of the 9 October 2019 telephone call.

123    The primary judge accepted at J [172] the affidavit evidence given by Mr McEvilly that he thought it was “odd” that in or around September 2019, he had seen Delta representatives during a site visit he had made to the NGA’s Fairfax Theatre and had learnt for the first time that Delta had been involved in any works on that part of the NGA, or that Delta was the incumbent maintenance provider for the Honeywell BMS.

124    The primary judge also accepted at J [173] the following evidence given by Mr McEvilly in cross-examination of an exchange that he had with Mr Glenn Davis of Delta at the NGA during that site visit to the Fairfax Theatre:

And it’s right, isn’t it, that when you saw Glenn Davis at that meeting, you said to him words to the effect of, “What the hell are you guys doing here”?---That’s probably close to the words I used when I rang Tim, yes.

It may have been less polite than that?---No. It probably wasn’t any less polite than that.

But you accept you said words to that effect both to Mr Glenn Davis in — at the theatre and then in your subsequent phone call with Mr Tim Davis; do you agree?---Yes, well, we didn’t have much of a conversation with Glenn. I think I saw him on the way out and asked if he wanted coffee because I was going to try and get an opportunity to talk to him, but he just kept moving on, so the next point of contact was the telephone call with Tim.

And when you called Tim, not only did you say to him, “What the hell are you guys doing at the gallery,” you told him that the gallery was your site?---Sorry?

You told him that the gallery was your site?---No, no I told him that we were on-site and we had had a long association. Tim was aware of all that.

125    The evidence of Mr McEvilly referred to above might conceivably provide an objective foundation for Mr Davis to meet with Mr McEvilly to inform him that the NGA “was not LES’s site” and to stress to him that the NGA was not off limits to Delta. We say “conceivably” because the evidence of the communication to Mr Davis did not rise above “we were on-site and we had a long association”. Mr McEvilly rejected the suggestion that he had gone further and stated that the NGA was LES’s site.

126    The critical issue again, however, is whether the “not LES’s site” contention is a more probable explanation, not merely a possible explanation, for Mr Davis to have called the 18 December 2019 meeting. The explanation finds little, if any, substantive support in the words spoken at that meeting. The offer of a payment to Mr McEvilly could not plausibly be seen as a means by which Mr Davis was simply conveying to Mr McEvilly that the NGA was “not LES’s site”. That objective could have been more directly achieved by Mr Davis informing Mr McEvilly that Delta was proposing to tender for the BMS upgrade. The offer of payment of money, as the primary judge found, made it much more probable that the 18 December 2019 meeting was to be held for the purpose of rigging the BMS upgrade tender.

127    It follows that any error by the primary judge in finding that the “not LES’s site” explanation advanced by Mr Davis depended on his account of the 9 October 2019 telephone call being accepted was not material.

Conclusion

128    For the foregoing reasons, the primary judge did not err in rejecting the benign accounts advanced by the first appellant and concluding that none gave rise to an at least equally probable inference that Mr Davis did not have the requisite intention.

Direct evidence of intention

129    The appellants contend that the primary judge erred by failing to consider the direct evidence of Mr Davis as to his intention and thereby reasoned wholly inferentially. They argue that the primary judge proceeded on the basis that once the Court had resolved whose version of the 18 December 2019 meeting was preferred, the question of intention necessarily followed.

130    Relatedly, the appellants submit that, given the conduct was not well developed, consistently with the reasoning of the Full Court in Egg Corporation, and at first instance in Egg Corporation PJ, the primary judge was required to have regard to ameliorative facts when considering intention because of the established nexus between conduct and intention. They content that these ameliorative facts included that Mr Davis (a) did not propose any way to control the outcome of the bidding process, and (b) did not tell Mr McEvilly that LES should not bid or put in a cover price.

131    The primary judge commenced his consideration of the requisite intention of Mr Davis by acknowledging that any application of criminal law principles and authorities to civil penalty proceedings needed to be approached with caution but then stated that they can sometimes provide a valuable source of reasoning, in particular to a tribunal of fact: J [55], [420]. In that context, his Honour then referred at J [420] to the following statements of the High Court majority in Kural at 504-505:

Where the offence charged is the commission of a proscribed act, a guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.

…

… the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law.

132    The critical reasoning of the primary judge with respect to intention then followed at J [421]-[423]:

When the proven conduct, as found by the tribunal of fact is capable of supporting competing inferences as to the accompanying state of mind, there may be a dilemma in determining, in a civil case, which is more likely. That was the situation faced by White J in the Egg Corporation trial. His Honour was not satisfied that the proscribed intention was more likely than an intention that did not bear that character. That was so despite his Honour rejecting exculpatory accounts given by counsel for the respondents.

This case is quite different. Not only has the relevant aspect of Mr Davis’ account of the 18 December 2019 conversation been rejected, and Mr McEvilly’s contrary account been accepted, but no other benign account has been advanced, much less accepted.

I therefore proceed on the process of inference drawing as to intention from the facts with respect to conduct as found earlier in these reasons. Those facts support no reasonable inference other than that Mr Davis intended to make an arrangement or arrive at understanding as alleged by the ACCC, or to induce LES to make such an arrangement or arrive at such an understanding.

133    The appellants submit that it was not open to the primary judge to find that there was no reasonable inference other than that Mr Davis intended to make an arrangement or reach an understanding to rig the BMS upgrade tender without considering Mr Davis’ direct evidence. Rather, the appellants submit, the primary judge engaged in a process of drawing inferences as if that evidence had not been given.

134    The appellants submit that Mr Davis addressed three matters in his evidence. They accept that Mr Davis was cross-examined at length about the first matter, being his purpose in calling the 18 December 2019 meeting, and the second matter, being what he in fact said at that meeting. They submit, however, that (a) he was not cross-examined about the third matter he addressed in his evidence, namely “what he intended and did not intend by saying what he said at the meeting”, and (b) this issue was not addressed by the primary judge.

135    The appellants submit that while Mr Davis’ evidence about “what he said” was no longer “in play” because of the findings made by the primary judge, his direct evidence about the third matter was very much still in play. They submit that it was not evidence as to the first matter, his reasons for attending the 18 December 2019 meeting, but rather direct evidence of the third matter, his intention in saying what he said at that meeting, in particular, that he had no intention to enter into an arrangement or arrive at an understanding of any kind.

136    The appellants submit that the question of Mr Davis’ purpose or reasons for calling the 18 December 2019 meeting is an issue that is anterior and distinct from, but connected with, the third matter, his intention in speaking the words that he spoke at the meeting. They submit that the two issues cannot be collapsed into each other and are dealt with separately in Mr Davis’ affidavit evidence. They submit that Mr Davis addresses his reasons for calling the 18 December 2019 meeting in his affidavit at [120]-[121] and then his intention in speaking the words at the meeting at [122]-[125]. These paragraphs are included in Mr Davis’ affidavit under the heading “My call to Tony McEvilly on 17 December 2019”.

137    The appellants’ contentions that the primary judge failed to consider the direct evidence of Mr Davis’ intention necessarily depend on there being a relevant and material distinction in his evidence between his reasons for calling the 18 December 2019 meeting and his intention in speaking the words that he spoke at the meeting. Relatedly, they also proceed on the basis that the third matter could be characterised as a “negative benign account”, rather than simply a denial, and, therefore, is a matter which the primary judge should have taken into account in determining whether Mr Davis had the requisite intention.

138    Mr Davis commences by giving the following evidence that was clearly limited to what he claims was in his mind at the time of the 17 December 2019 telephone call:

120.    At the time I made this call, there were two things going through my mind:

(a)    I wanted to meet with Tony to “clear the air” following Tony’s 9 October 2019 phone call to me. I did this because I thought it was in my commercial interests. I thought that I was going to win the BMS Upgrade Tender and it was likely that integration or interface work would be required for the BMS Upgrade Tender. I did not know whether I would need to engage LES to assist with that interface or integration work, but I thought that it was likely that Delta would need to engage LES, and I wanted to make sure that I had that option. I also did it because I did not want the relationship with Tony to continue to be hostile given that he had helped get me my first job.

(b)     I also wanted to make it clear to Tony that I rejected any suggestion that the NGA was his site, or that Delta should make way for LES.

121.     I did not seek to arrange a meeting with Tony in order to offer him money not to bid on the BMS Upgrade Tender, or to submit a bid that was uncompetitive, or at a price lower than Delta's price. None of those things entered my mind.

139    Then, Mr Davis gives the following evidence of what was in his mind at the time of the 17 December 2019 telephone call (not bolded) and what he did, or did not do, at the 18 December 2019 meeting (in bold):

122.     I never had any intention of asking Tony to enter into any sort of commitment. I did not want Tony to take on any obligation to do anything in relation to the BMS Upgrade Tender. I always assumed that he would bid for that project and that he would put forward his best possible bid. I never suggested otherwise.

123.     I never intended to discuss Tony's pricing or terms for the BMS Upgrade Tender with him, and I did not do so. I never intended to discuss whether Tony was going to submit a bid for the BMS Upgrade Tender and I did not do so.

124.    I did not have any intention that Tony would be under any obligation to do anything in relation to the BMS Upgrade Tender. I did not try to convince Tony to give up his ability to do whatever he wanted about the BMS Upgrade Tender. I never intended that he would do so.

140    The denials in [122] – “I never suggested otherwise”, in [123] – “I did not do so”, and in [124] – “I did not try to convince Tony” all address what was said at the 18 December 2019 meeting, not “what he intended and did not intend by saying what he said at the meeting”. By these statements, Mr Davis is doing no more than denying that he raised the matters he identifies in those paragraphs, in those precise terms, at the 18 December 2019 meeting. They do not directly confront or contradict the inferences that the primary judge drew as to Mr Davis’ intention from the words that his Honour found were spoken at the meeting. The denials cannot relevantly assist the appellants or establish any error by the primary judge, because the appellants do not challenge the primary judge’s rejection of Mr Davis’ account of what was said at the 18 December 2019 meeting to the extent that it differed from Mr McEvilly’s evidence.

141    Moreover, the absence of any finding by the primary judge that Mr Davis made statements in those precise terms at the 18 December 2019 meeting does not relevantly provide any meaningful corroboration of his alleged benign intention in what he was found to have said at that meeting.

142    At [122] to [124] of Mr Davis’ affidavit, he was otherwise giving evidence of his intention at the time that he was arranging to meet with Mr McEvilly the next day, which is evident from his use of the language of “I never had any intention”, “I never intended” and “I did not have any intention”. Those uncommunicated assertions of Mr Davis’ state of mind as to what he intended to seek at the 18 December 2019 meeting were considered but given little weight by the primary judge in determining (a) what was said at that meeting, and (b) Mr Davis’ intention in calling it. As the primary judge stated at J [245]:

Mr Davis also sets out what he says he did not intend in seeking the meeting, which anticipates the next conflict as to what was actually said at that 18 December 2019 meeting, and what his intentions were in saying what he did. It will be more useful to address that in the context of the competing accounts of the meeting conversation itself, not least because it is not coherent, in considering what findings should be made about what was said in the 17 December 2019 telephone conversation, to take into account assertions as to what Mr Davis did not intend in seeking the meeting. In short, a negative assertion of an uncommunicated state of mind is of little assistance in determining positively what was most likely to have been said.

143    Moreover, and directly relevant to Mr Davis’ intention in calling the 18 December 2019 meeting, the primary judge stated at J [391] and J [401]:

In light of the factual findings I have made, I do not accept that Mr Davis’ offer to pay money was for any purpose deposed to by him. His account was inherently implausible and inconsistent with the logic and sequence of events.

…

Put another way, in all the circumstances and on all the evidence considered as a whole, and taking into account the experience and background of both men, the clear implication in Mr Davis making the offer in the context of the meeting that I am satisfied was called by him to discuss the BMS upgrade, was that in one way or another, Mr Davis was proposing that LES not be a genuine competitor in the BMS upgrade tender.

144    In any event, on their plain and ordinary meaning, the words that Mr Davis has used in his affidavit do not purport to state what Mr Davis intended to convey by speaking the words that he spoke at the 18 December 2019 meeting.

145    Finally, Mr Davis gave the following evidence of both what was in his mind at the time of the 17 December 2019 telephone call (not bolded) and what was in his mind at the time of the 18 December 2019 meeting (in bold):

125.    I did not consider what LES was going to do with its tender for the BMS Upgrade, or whether it was going to submit a bid or what its price or terms might be. I felt confident that Delta would win the tender. In hindsight, I was probably overconfident. However, I really thought at the time of the meeting on 18 December 2019 that Delta was going to win the BMS Upgrade Tender because:

(a)     the Honeywell Service and Maintenance Contract had been awarded to Delta on 25 November 2019;

(b)     Tava from Steensen Varming had been working closely with Hendra and asking for Delta's technical input on the BMS Upgrade Tender requirements;

(c)    Delta had developed good relationships with Nick Xirakis, Mark Mandy and Matt Hanns; and

(d)    Delta appeared to be well-placed to win infrastructure projects with the NGA.

146    Again, this is not evidence of what Mr Davis intended to convey by speaking the words that he spoke at the 18 December 2019 meeting. Rather, his evidence rises no higher than a contemporaneous belief of confidence in winning the BMS upgrade tender. Even if it were to be accepted that Mr Davis “really thought” at the time of the 18 December 2019 meeting that Delta was going to win the BMS upgrade tender, it cannot cast any substantive doubt on the purpose for which the payment was (a) offered by Mr Davis, and (b) clearly understood by Mr McEvilly to have been offered. That is, to rig the BMS upgrade tender. Being confident in victory does not preclude a person from taking steps to increase the likelihood of their victory eventuating.

147    The distinction sought to be advanced by the appellants between the first matter, Mr Davis’ reasons for calling the 18 December 2019 meeting, and the third matter, the intention that Mr Davis had in speaking the words that he spoke at that meeting, is illusory. Mr Davis did not give evidence of what he intended to convey by speaking the words that he spoke at the meeting. The primary judge (a) rejected Mr Davis’ evidence as to what was said at the meeting and his reasons for offering the payment to Mr McEvilly, and (b) explained why little weight was given to Mr Davis’ reasons for calling the meeting. In those circumstances, it was open to the primary judge to reason wholly inferentially that Mr Davis had the requisite intention concerning the type of cartel provisions proscribed by s 45AD(3)(c) of the CCA.

148    Nor do we accept that there is any relevant distinction between a “bare denial” of intention and a “negative benign account”. The primary judge did not err by failing to treat Mr Davis’ denials as providing some form of benign explanation of his intention in arranging the 18 December 2019 meeting and making the offer of the payment to Mr McEvilly.

149    Further, we do not accept that the alleged “ameliorative” facts found by the primary judge relevantly detract from his Honour’s finding that Mr Davis had the requisite intention. The attempt might have been relatively undeveloped but was sufficiently advanced, as explained at [101]-[103] above, such that the requisite intention to attempt to rig the BMS upgrade tender could readily be inferred.

150    Moreover, and more fundamentally, the primary judge rejected Mr Davis’ evidence of the words spoken at the 18 December 2019 meeting and, therefore, any evidence that Mr Davis might have advanced as to what he intended to convey by speaking the words that he spoke at that meeting would necessarily be of little, if any, probative value.

151    Having rejected Mr Davis’ evidence as to his intention in calling the 18 December 2019 meeting and what was said at the meeting, the primary judge did not err in reasoning wholly inferentially as to Mr Davis’ intention.

Conclusion

152    For the foregoing reasons, with the exception of the finding with respect to the rejection of Mr Davis’ evidence of the 9 October 2019 telephone call, none of the contentions advanced by the appellants in support of Grounds 2 and 3 have been established. Further, to the extent that the primary judge erred with respect to the significance of the rejection of Mr Davis’ evidence of the 9 October 2019 telephone call, such error was not material.

153    It follows that Grounds 2 and 3 must fail.

Disposition

154    The appeal is to be dismissed, and the appellants are to pay the costs of the respondent, as agreed or taxed.

Associate:

Dated:    29 August 2025