Case: Australian Competition and Consumer Commission v Edison Mission Operations and Maintenance Loy Yang Pty Ltd [2006] FCA 853
Outcome: referred to
The CEPU contests the allegations against it. On 7 April 2006, I ordered that the contested proceeding between the ACCC and the CEPU concerning the CEPU's liability under ss 76 and 80 of the TPA be heard prior to the penalty hearing as between the ACCC and Edison: see Australian Competition and Consumer Commission v Edison Mission Operations and Maintenance Loy Yang Pty Ltd [2006] FCA 853. There was no appearance for Edison at the hearing of the contested proceeding between the ACCC and the CEPU. 5 The hearing proceeded by viva voce evidence. The ACCC called five witnesses. Four of the witnesses, Colin Sutherland ('Sutherland'), Paul Burns ('Burns'), Wayne Buckley ('Buckley') and Mark Pearson ('Pearson') were employees of Edison or a related company at all relevant times. Sutherland was a general manager of Edison Mission Energy Australia Pty Ltd ('EME') and a director of Edison and certain of its related entities including Valley Power Pty Ltd ('Valley Power'). Burns was the manager of community and employee relations for EME and was stationed at Loy Yang B. Sutherland and Burns had the principal carriage of discussions between Edison and the CEPU in August 2001. Pearson was the maintenance manager of EME's plant at Loy Yang B. Buckley held the position of maintenance coordinator for EME at Loy Yang B and reported directly to Pearson. Nothing in this case turns on any distinction between the various corporate entities within the Edison group of companies and, where the context permits, I refer to them simply as 'Edison'. The other witness was David Nabulsi ('Nabulsi'), the sole director of a company called DJN Electrical &amp; Instrumentation Pty Ltd ('DJN'). Prior to August 2001, DJN regularly supplied services to Edison at Loy Yang B in its capacity as an electrical contractor. 6 In addition, the ACCC relied on an affidavit of Rodney McKemmish ('McKemmish') sworn 7 September 2006. Exhibit RMCK-3 to McKemmish's affidavit is his expert forensic report in relation to the authenticity and source of certain emails which were discovered by Edison and which are relevant to the ACCC's case against the CEPU. The affidavit was received in evidence subject to the CEPU's objection to those parts of the affidavit in which McKemmish purported to express an opinion identifying the author of certain emails. The objection is a good one and I uphold it. McKemmish is not in a position to give admissible evidence concerning the authorship of the emails. His evidence is only admissible to the extent to which he addresses the authenticity and technical source of the emails. Apart from this objection, the CEPU did not dispute McKemmish's evidence. 7 The CEPU did not call any witnesses or rely on any affidavit material in support of its case. 8 There are two main issues in this proceeding. The first concerns the nature, scope and terms of the contract, arrangement or understanding that was made or arrived at between the respondents. The ACCC submitted that the true nature, scope and terms of the contract, arrangement or understanding can be inferred from the circumstances surrounding a written heads of agreement between Edison and the CEPU, which was signed on behalf of Edison on 23 August 2001 ('the heads of agreement'). The ACCC's primary argument was that the contract, arrangement or understanding was not confined to the literal terms of the heads of agreement, and that it prevented or hindered Edison from acquiring services from electrical contractors including DJN because they did not have a certified agreement with the CEPU. Further, the ACCC argued that the contract, arrangement or understanding was given effect by Edison. Alternatively, the ACCC argued that the same consequences follow even if the contract, arrangement or understanding is entirely embodied in the heads of agreement.