FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191 File number: VID 698 of 2014 Judge: MIDDLETON J Date of judgment: 5 October 2017 Catchwords: COMPETITION – secondary boycott – attempted secondary boycott – meaning of conduct "in concert" – meaning of "substantial loss or damage" – rebuttable presumption in s 45DC of the Competition and Consumer Act 2010 (Cth) – whether an instruction was given – whether an instruction was implemented EVIDENCE – admissibility of representations made in furtherance of a common purpose under s 87(1)(c) of the Evidence Act 1995 (Cth) – reliance on coincidence reasoning to prove a fact – application of s 98 of the Evidence Act 1995 (Cth) – inferences where a party fails to call a witness Legislation: Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) Cases cited: Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) (2012) 207 FCR 448 Ahern v R (1988) 165 CLR 87 Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2009) FCA 1495 ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 97 ALR 513 Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318 Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504 Barneys Blu-Crete Pty Ltd v Australian Workers' Union [1979] ATPR 40-139 Briginshaw v Briginshaw (1938) 60 CLR 336 Building Workers' Industrial Union Of Australia And Others V Odco Pty Ltd (1991) 29 FCR 104 Hughes v The Queen [2017] HCA 20 James Hardie Industries NV v Australian Securities and Investments Commission (2010) 274 ALR 85 Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Assn Inc (1989) 24 FCR 127 Jones v Dunkel (1959) 101 CLR 298 Leon Laidely Pty Ltd v Transport Workers Union of Australia (1980) 28 ALR 129 News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWSC 231 R v Associated Northern Collieries (1911) 14 CLR 387 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 TPC v TNT Management Pty Ltd (1985) 6 FCR 1 Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168 Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 7 FCR 534 Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 Willis v The Commonwealth (1946) 73 CLR 105 Date of hearing: 3-6 October 2016, 10-12 October 2016 and 25-26 October 2016 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Category: Catchwords Number of paragraphs: 441 Counsel for the Applicant: Mr P D Crutchfield QC with Mr R I Gipp and Mr N P De Young Solicitor for the Applicant: DLA Piper Australia Counsel for the Respondents: Ms R M Doyle SC with Mr J R Gurr Solicitor for the Respondents: Slater and Gordon Lawyers REASONS FOR JUDGMENT VID 698 of 2014 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent JOHN SETKA Second Respondent SHAUN MICHAEL REARDON Third Respondent MIDDLETON J: INTRODUCTION [1] Background [3] Allegations against the CFMEU [5] The conduct allegations [8] The attempt allegations [15] Witnesses [19] LEGISLATION AND CASE LAW [33] Contraventions [33] A "person" [35] "Engages in conduct" [40] Acting "in concert" [42] "Hinders or prevents" [53] The "purpose" of causing "substantial loss or damage" [56] Conduct that "would have or be likely to have" the effect of causing substantial loss or damage [58] Attempted contraventions [68] CONSIDERATION [72] Evidentiary objections [73] Evidence of ban-related representations of Mr Pettifer [96] Evidence of ban-related representations of Mr Vlahogiannis [103] Evidence of ban-related representations of Mr Bellofiore [107] Trades Hall Meetings [123] Conduct allegations [156] Deer Park [168] The ACCC's case [169] The CFMEU's case [174] CONSIDERATION [177] Hawthorn [185] The ACCC's case [186] The CFMEU's case [191] CONSIDERATION [196] Lilydale [208] The ACCC's case [209] The CFMEU's case [212] CONSIDERATION [213] Melbourne City [225] The ACCC's case [226] The CFMEU's case [232] CONSIDERATION [237] Port Melbourne [248] The ACCC's case [249] The CFMEU's case [252] CONSIDERATION [256] Richmond [269] The ACCC's case [270] The CFMEU's case [277] CONSIDERATION [281] Tarneit [293] The ACCC's case [294] The CFMEU's case [302] CONSIDERATION [306] Werribee [317] The ACCC's case [318] The CFMEU's case [324] CONSIDERATION [329] Attempt allegations [364] Notting Hill [364] The ACCC's case [365] The CFMEU's case [367] CONSIDERATION [370] Officer [383] The ACCC's case [384] The CFMEU's case [386] CONSIDERATION [388] Williams Landing [410] The ACCC's case [411] The CFMEU's case [417] CONSIDERATION [421] The omnibus claim (Metropolitan Melbourne Conduct) [434] CONCLUSION [439] INTRODUCTION 1 In this proceeding, the applicant ('ACCC') seeks declarations, injunctive relief, pecuniary penalties, publication and probation orders, and costs against the first respondent (the 'CFMEU'). This relief is sought under ss 76, 80 and 86C of the Competition and Consumer Act 2010 (Cth) ('CCA') and s 21 and s 43 of the Federal Court of Australia Act 1976 (Cth) ('FCAA'). The ACCC also originally sought relief against the second and third respondents. However, for reasons that are apparent below, there is no need to set out those allegations in detail. 2 In summary, the ACCC primarily alleges that the CFMEU contravened s 45D(1) of the CCA by engaging in particular conduct in concert with union delegates ('shop stewards') appointed to each of 11 construction sites in Melbourne. It is alleged that the CFMEU gave instructions to shop stewards (and one CFMEU Organiser) not to allow Boral Resources (Vic) Pty Ltd ('Boral Resources') and Alsafe Premix Concrete Pty Ltd ('Alsafe') (each or collectively, 'Boral') to supply concrete to construction sites (the 'Ban Against Boral'). It is further alleged that certain shop stewards implemented the Ban Against Boral at those sites ('s 45D conduct'). Background 3 From mid-August 2012, the CFMEU and Grocon Pty Ltd ('Grocon') were involved in a dispute regarding Grocon's refusal to accept CFMEU shop stewards as workers' representatives on Grocon sites. This ongoing dispute led to Grocon and Boral (one of Grocon's concrete suppliers at the time) initiating separate proceedings in the Supreme Court of Victoria. 4 On 20 November 2014, this proceeding in the Federal Court was commenced by the ACCC against the CFMEU and the second and third respondents. On 3 February 2016, the Court made orders by consent to stay the proceedings against the second and third respondents. On 11 May 2016, the Court delivered judgment rejecting a similar stay application by the CFMEU and a subsequent appeal from this decision was dismissed: see Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504. As a result, when the trial commenced on 3 October 2016, the Court only heard the ACCC's allegations in relation to the CFMEU. At the conclusion of the trial, the Court dismissed the proceedings against the second and third respondents without any consideration of the merits of the applications against those respondents. Allegations against the CFMEU 5 In its amended statement of claim, the ACCC alleged that the CFMEU had committed 13 contraventions of s 45D(1) of the CCA. Section 45D(1) of the CCA contains the following text: 45D Secondary boycotts for the purpose of causing substantial loss or damage (1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct: (a) that hinders or prevents: (i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or (ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person. 6 Of these 13 alleged contraventions, 12 were site-specific, meaning they referred to 12 separate instances of conduct at 12 different construction sites in Victoria. However, the ACCC ultimately abandoned one of these claims, leaving 11 such contraventions being pressed. Further and alternatively, the ACCC pleaded an "omnibus" claim, namely that the conduct at each of those 11 sites, when considered collectively, constituted a single contravention of s 45D(1) of the CCA. 7 Putting the omnibus claim to one side, it is useful to separate the site-specific contraventions into two categories: (1) Eight alleged contraventions relating to conduct of the CFMEU and a relevant shop steward (and in one case, the conduct of a CFMEU Organiser) (the 'conduct allegations'); and (2) Three alleged contraventions relating to attempted conduct of the CFMEU and a relevant shop steward (the 'attempt allegations'). The conduct allegations 8 The conduct allegations related to the following construction sites: Deer Park; Hawthorn; Lilydale; Melbourne City; Port Melbourne; Richmond; Tarneit; and Werribee. 9 Each conduct allegation follows a similar pattern: the CFMEU is alleged to have informed the relevant shop steward that there was a ban against the use of Boral concrete on that particular site. The shop steward is then alleged to have acted in concert with the CFMEU by implementing the ban on the site, thus hindering or preventing Boral from supplying concrete to that site. It is claimed that this conduct was engaged in for the (or a) purpose of causing substantial loss or damage to the business of Boral, and that the conduct would have, or was likely to have, the effect of causing substantial loss or damage to the business of Boral. 10 For example, the Deer Park conduct allegation was pleaded as follows (particulars have been omitted): 72. The Deer Park Site relevantly involved: 72.1 FDC Construction and Fitout Pty Ltd I 120 295 034 (FDC) as the head contractor; 72.2 Anglo Italian as a subcontractor engaged to supply and place concrete; 72.3 Newitt acting as a site supervisor; 72.4 Travers acting as the Shop Steward onsite. 73. At the Deer Park Site around the time of the February Trades Hall Meeting: 73.1 construction works were underway; and 73.2 Boral Resources was supplying concrete to Anglo Italian. 74. In or about mid-February 2013 the CFMEU informed Shop Steward Travers of the Ban Against Boral. 75. On or about 14 February 2013: 75.1 Shop Steward Travers and Newitt were at the Deer Park Site; 75.2 Shop Steward Travers said to Newitt words to the effect: 75.2.1 the CFMEU was having a dispute with Boral; and 75.2.2 the CFMEU would prefer Anglo Italian acquire concrete from a supplier other than Boral. 76. In or about April 2013: 76.1 Shop Steward Travers and Newitt were at the Deer Park Site; 76.2 Shop Steward Travers said to Newitt words to the effect: 76.2.1 Anglo Italian "shouldn't have been using Boral"; and 76.2.2 the CFMEU "was still not happy" for Anglo Italian to use Boral. 77. Shop Steward Travers undertook the actions described in paragraphs 75.2 and 76.2 (Deer Park Implementation) to implement the Ban Against Boral. 78. In: 78.1 the CFMEU introducing and/or communicating the Ban Against Boral in the circumstances referred to in paragraphs 59, 59C and 60; and 78.2 Shop Steward Travers undertaking the Deer Park Implementation, the CFMEU acted in concert with Shop Steward Travers (collectively, the Deer Park Conduct). 79. The Deer Park Conduct hindered or prevented Anglo Italian from acquiring concrete from Boral Resources. Contravention arising from Deer Park Conduct – Secondary boycott 80. Each of the CFMEU and Shop Steward Travers engaged in the Deer Park Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral. 81. The Deer Park Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral. 82. By reason of the matters referred to in paragraphs 78 to 81, the CFMEU contravened section 45D(1) of the Act. 11 Paragraphs 59, 59C and 60 of the pleading provide as follows (particulars have been omitted): 59. During the February Trades Hall Meeting: 59.1 Setka said words to the effect that Boral was a "Grocon friendly supplier"; and 59.2 the CFMEU gave an instruction to Shop Stewards and CFMEU organisers to not allow Boral to supply concrete to commercial construction sites in Metropolitan Melbourne (Ban Against Boral). … 59C. During the March Trades Hall Meeting, the CFMEU communicated the existence of the Ban Against Boral to Shop Stewards and CFMEU organisers. 60. At all material times following the February Trades Hall Meeting and the March Trades Hall Meeting: 60.1 the CFMEU intended and expected that Shop Stewards and CFMEU organisers should implement the Ban Against Boral until further notice; and 60.2 Shop Stewards and CFMEU organisers understood that they should implement the Ban Against Boral until further notice. 12 Throughout the pleading, reference is made to the Ban Against Boral as defined in paragraph 59.2 of the pleading. 13 The other conduct allegations are similarly put. The only notable difference is for the Werribee and Tarneit sites, where a CFMEU Organiser (Mr Drew MacDonald) was also alleged to have been involved in the relevant conduct in addition to the relevant shop steward. 14 The conduct allegation in relation to the Werribee site was pleaded as follows (particulars have been omitted): Werribee Conduct 192. The Werribee Site relevantly involved: 192.1 construction works which commenced in January 2014; 192.2 Probuild Constructions (Services) Pty Ltd I 054 636 225 (Probuild) as the head contractor; 192.3 Straightline Excavations Pty Ltd I 162 839 554 (Straightline) as a subcontractor to Probuild to perform basement excavation and retention and footings works; 192.4 Tarkan Gulenc (Gulenc) as a director of Straightline; 192.5 BRC as a subcontractor to Straightline engaged to perform piling works; 192.6 Boam as a director of BRC; 192.7 Harisiou acting as the Shop Steward onsite; 192.8 MacDonald acting as the CFMEU organiser responsible for the geographic area that included the Werribee Site. 193. In about March 2013 the CFMEU informed Shop Steward Harisiou of the Ban Against Boral. 194. In about March 2013 the CFMEU informed CFMEU organiser MacDonald of the Ban Against Boral. 195. In about March 2014 BRC decided to acquire concrete for the Werribee Site from Boral Resources. 196. On or about 16 or 17 April 2014: 196.1 Shop Steward Harisiou and Boam were at the Werribee Site; 196.2 Shop Steward Harisiou asked Boam who he was using for concrete; 196.3 Boam told Shop Steward Harisiou he was using Boral; 196.4 Shop Steward Harisiou told Boam that they would need to discuss it further but would need to wait for MacDonald; and 196.5 Shop Steward Harisiou asked Boam to attend a meeting later that day or the following day. 197. On or about 16 or 17 April 2014: 197.1 Shop Steward Harisiou, CFMEU organiser MacDonald, Boam and Gulenc attended a meeting at the Werribee Site; 197.2 Shop Steward Harisiou and CFMEU organiser MacDonald told Boam and Gulenc that they had safety concerns regarding Boral's concrete trucks; 197.3 Shop Steward Harisiou and CFMEU organiser MacDonald told Boam and Gulenc that they were concerned that Boral's concrete might cause dermatitis; 197.4 the concern referred to in the immediately preceding sub-paragraph was not genuinely held or was readily capable of being prevented by the wearing of gloves; and 197.5 Shop Steward Harisiou told Boam and Gulenc that if BRC used Boral there were going to be roadworthy checks on the concrete trucks. 198. Shop Steward Harisiou undertook the actions described in paragraphs 196 and 197 (Werribee Shop Steward Implementation) to implement the Ban Against Boral. 199. CFMEU organiser MacDonald undertook the action described in paragraph 197 (Werribee Organiser Implementation) to implement the Ban Against Boral. 200. In: 200.1 the CFMEU introducing and/or communicating the Ban Against Boral in the circumstances referred to in paragraphs 59, 59C and 60 above; 200.2 the CFMEU providing the Checklist Instructions in the circumstances referred to in paragraph 62; 200.3 Shop Steward Harisiou undertaking the Werribee Shop Steward Implementation; and/or 200.4 CFMEU organiser MacDonald undertaking the Werribee Organiser Implementation, the following persons acted in concert with each other: 200.5 the CFMEU with Shop Steward Harisiou; further or alternatively 200.6 CFMEU organiser MacDonald with Shop Steward Harisiou; and 200.7 by reason of the matters referred to in paragraph 200.6, the CFMEU with CFMEU organiser MacDonald and Shop Steward Harisiou, (collectively, the Werribee Conduct). 201. The Werribee Conduct hindered or prevented BRC from acquiring concrete from Boral Resources. Contravention arising from the Werribee Conduct – Secondary boycott 202. Each of the CFMEU, CFMEU organiser MacDonald and Shop Steward Harisiou engaged in the Werribee Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral. 203. The Werribee Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral. 204. By reason of the matters referred to in paragraphs 200 to 203, the CFMEU contravened section 45D(1) of the Act. The attempt allegations 15 The attempt allegations related to the following construction sites: Notting Hill; Officer; and Williams Landing. 16 The attempt allegations are of essentially the same character as the conduct allegations outlined above, save for that fact that the attempted implementation of the ban was unsuccessful in that Boral kept supplying concrete. 17 The Notting Hill attempt allegation (as an example) was pleaded as follows (particulars have been omitted): 149. The Notting Hill Site relevantly involved: 149.1 Hansen Yuncken Pty Ltd I 063 384 056 (Hansen Yuncken) as the head contractor; 149.2 Oceania as a subcontractor engaged to conduct excavation works and construct the foundations; 149.3 Humphrey acting as production manager onsite; 149.4 Kemp acting as the Shop Steward onsite. 150. At the Notting Hill Site around the time of the February Trades Hall Meeting: 150.1 constructions works were underway; and 150.2 Boral Resources was supplying concrete to Oceania. 151. In or about March 2013 the CFMEU informed Shop Steward Kemp of the Ban Against Boral. 152. On or about 14 March 2013: 152.1 the only concrete Oceania still needed to acquire for the Notting Hill Site was concrete to pour stairs that was due to take place the following day; 152.2 Shop Steward Kemp and Humphrey were at the Notting Hill Site; 152.3 Shop Steward Kemp approached Humphrey and told him words to the effect that "you won't be using Boral here". 153. Shop Steward Kemp undertook the action described in the immediately preceding paragraph (Notting Hill Implementation) to implement the Ban Against Boral. 154. In: 154.1 the CFMEU introducing and/or communicating the Ban Against Boral in the circumstances referred to in paragraphs 59, 59c and 60 above; 154.2 the CFMEU providing the Checklist Instructions in the circumstances referred to in paragraph 62; 154.3 Shop Steward Kemp undertaking the Notting Hill Implementation, the CFMEU acted in concert with Shop Steward Kemp (collectively, the Notting Hill Conduct). 155. Following the Notting Hill Conduct, Oceania continued acquiring concrete from Boral. Contravention arising from the Notting Hill Conduct – Attempted secondary boycott 156. The intention of each of the CFMEU and Shop Steward Kemp in engaging in the Notting Hill Conduct included hindering or preventing Oceania from acquiring concrete from Boral. 157. Each of the CFMEU and Shop Steward Kemp engaged in the Notting Hill Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral. 158. The Notting Hill Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral. 159. By reason of the matters referred to in paragraphs 154 to 158 the CFMEU attempted, within the meaning of sections 76(1) and 80(1), to contravene section 45D(1) of the Act. 18 As indicated in the pleading, to make out these attempt allegations, the ACCC relies on s 76(1) and s 80(1) of the CCA. These provisions provide that the Court may order a pecuniary penalty or injunction (respectively) if it is satisfied that a person attempted to contravene a provision such as s 45D(1). Witnesses 19 A total of 23 witnesses were called, and all were subpoenaed to appear. Of the 23 witnesses, 18 were called by the ACCC, and 5 were called by the CFMEU. The witnesses for each site are set out below (those called by the CFMEU are designated in italics): Site: Shop steward called in relation to that site: Other witnesses called in relation to that site: Deer Park Rodney Travers Michael Newitt, Brett Young Officer Salvador Carrillo Mark Milano, Linus Humphrey Port Melbourne David Lythgo Fabrizio Ubaldi Tarneit Domenic Mazzeo Damien Milano, Sean McEvoy, Mark Milano Melbourne City Darren Dudley Hawthorn Peter Thomas Santi Mangano Notting Hill Barry Kemp Mark Milano, Linus Humphrey Lilydale Mark Milano, Linus Humphrey Richmond Robert Scott Mark Milano, Phillip Petersen, Linus Humphrey Williams Landing Mark Milano, Damien Milano Werribee Andrew Harisiou Craig Boam, Tarken Gulenc, Fabrizio Ubaldi 20 The ACCC also called Mr Paul Dalton of Boral and Mr Brian McAdam of Grocon to give evidence in relation to the operations of Boral and Grocon respectively. Mr Steven Richardson was also called to give evidence in relation to the Flinders Street site (although this alleged contravention was abandoned by the ACCC during the trial). 21 Furthermore, it is important to note that although there was a shop steward operating at each of the Melbourne City, Lilydale and Williams Landing sites at all relevant times, neither party called those shop stewards to give evidence in this proceeding (those shop stewards were Messrs Lou Vlahogiannis, Gerald Pettifer and Guy Bellofiore respectively). 22 It is convenient here to mention the principle enunciated in Jones v Dunkel (1959) 101 CLR 298 ('Jones v Dunkel'), relied upon by both parties. 23 Jones v Dunkel provides for the prospect that inferences may be drawn where a party does not call a witness whose evidence may assist in the resolution of a factual dispute. In that case, Kitto J observed (at 308): …any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. 24 In addition, the authorities establish that a court may infer that the evidence of the absence witness would not have assisted the party that failed to call that witness. 25 I would not have expected the ACCC to have called a shop steward, although in some cases it did so. It was likely such a witness would be favourable to the CFMEU and not favourable to the ACCC. I would have expected the CFMEU to call a relevant witness to explain (importantly) the minutes of the meetings referred to in the pleading if it was sought to explain the meetings, contradict the minutes, or put them in context. The CFMEU did not call a witness to undertake this task, and so the interpretation of the minutes is to be undertaken by looking at their text and context. I do not read the minutes other than in accordance with ordinary principles relating to the interpretation of written documents. However, I do proceed on the basis that unless evidence has been called to the contrary, the minutes are to be understood by interpreting in the way I have suggested – by looking at the text and context. 26 However, it is important to observe that the rule in Jones v Dunkel does not permit the filling of gaps in the evidence, or to convert conjecture into inference: see Jones v Dunkel at p 308 (per Kitto J) and 320-1 (per Windeyer J). 27 As a general matter, the ACCC submitted that all the evidence needed to be considered to put in context the evidence of the various statements made by relevant shop stewards and CFMEU officials at the relevant meetings and at the various sites. Significantly, the meetings and statements relied upon by the ACCC occurred at a time when the CFMEU was involved in a serious and on-going dispute with Grocon, with Boral supplying concrete to Grocon, and Boral considered by the CFMEU to be "Grocon friendly". Therefore, the ACCC stressed the importance of the Court considering all the surrounding circumstances, including the fact of the on-going dispute, the contemporaneous shop stewards' meetings and the statements made on site by the various shop stewards. 28 So much is uncontentious. However, a number of witnesses had difficulty recollecting details of the conduct and events in question, and their ability to do so was the subject of testing under cross-examination. The implementation of the Ban Against Boral is alleged to have occurred between February 2013 and mid 2014. It is also to be recalled that the shop stewards had different employers and worked at different construction sites. There is no direct evidence that any of the shop stewards discussed amongst themselves the Ban Against Boral. The relevant events and statements about which evidence was adduced occurred some three years ago, and not all events and statements occurred at formal or structured meetings. These circumstances obviously caused some witnesses to have difficulty in remembering details of conversations and the timing of such conversations. 29 The Court has had the advantage of hearing from a number of witnesses, including a number of shop stewards. The ACCC, in calling various shop stewards, despite having the benefit of s 155 examinations in some cases, needed to examine in chief (unless given leave to cross-examine) potentially unfavourable witnesses. I have been mindful of that reality. In addition, statements made by the shop stewards in the witness box need to be tested closely and received with the greatest caution: see eg ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 97 ALR 513, 534 per Lockhart, Gummow and von Doussa JJ. 30 However, this testing should not be translated or treated as putting an added onus or burden on a particular witness. All the evidence needs to be considered, including the contemporary documentation and conduct relating to all the participants. 31 I have generally accepted the evidence of the shop stewards as to the events that occurred on site, in particular in relation to the carrying out of safety checks. The fact remains that no Boral trucks were actually sent away from a site by reason of any conduct of the CFMEU, Mr MacDonald or shop stewards. The real harm to Boral was the threat that Boral trucks would be hindered or delayed in the delivery of concrete. This threat was made known to certain customers, some of whom changed their supplier of concrete away from Boral. 32 I make one other observation relating to the evidence. This proceeding is a penalty proceeding. In light of the application of s 140 of the Evidence Act 1995 (Cth) ('the Evidence Act'), the principles contained in Briginshaw v Briginshaw (1938) 60 CLR 336 should be adopted by the Court in assessing the evidence individually and collectively. This is particularly pertinent when assessing the import of statements made on the various construction sites. The Court should not discount the evidence of a witness just because they cannot recall the exact words used in a particular conversation. However, to the extent a witness has only a general impression of what was said, the Court should recall that human memory is fallible, and a general impression may arise from a number of sub-conscious reasons. The witness, by the time they are giving evidence, in giving such generalised evidence, may not be giving reliable evidence that reflects a previous statement made or the exact context of a particular earlier conversation. LEGISLATION AND CASE LAW Contraventions 33 As indicated above, the central legislative provision in this proceeding is s 45D(1) of the CCA. 34 Therefore, a finding of a breach of s 45D (relevantly) requires the following elements to be made out: (1) a "person"; (2) "engages in conduct"; (3) "in concert" with a second person; (4) "hinders or prevents" a third person supplying or acquiring goods or services to/from a fourth person; (5) where that conduct is engaged in for the "purpose" of causing substantial loss or damage to the business of the fourth person; and (6) where that conduct "would have or be likely to have the effect" of causing substantial loss or damage to the business of the fourth person. A "person" 35 It is accepted that the term "person" in s 45D(1) can include a trade union such as the CFMEU: Leon Laidely Pty Ltd v Transport Workers Union of Australia (1980) 28 ALR 129, 138 (Lockhart J). 36 Section 45DC(1) of the CCA (entitled "Involvement and liability of employee organisations") provides: If 2 or more persons (the participants), each of whom is a member or officer of the same organisation of employees, engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with another person, then, unless the organisation proves otherwise, the organisation is taken for the purposes of sections 45D, 45DA and 45DB: (a) to engage in that conduct in concert with the participants; and (b) to have engaged in that conduct for the purposes for which the participants engaged in it. 37 The effect of s 45DC is to create a rebuttable presumption that an organisation of employees has engaged in conduct in contravention of s 45D if two or more participants in the conduct are members or officers of the organisation. 38 In this context, it is to be noted that: (1) section 4(1) of the CCA provides that an "organisation of employees" means an organisation that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of members in relation to their employment; (2) the second and third respondents were members and officers of the CFMEU and that the CFMEU Organiser Mr MacDonald was an employee and member of the CFMEU at all material times, and that the relevant shop stewards were members of the CFMEU at all material times. 39 In looking at the CFMEU and its conduct, it is necessary to assess the minds of the relevant persons who directed the relevant conduct. In this proceeding, it was the executives of the CFMEU involved in the Ban Against Boral, which included the second and third respondents and Mr MacDonald. "Engages in conduct" 40 Section 4(2)(a) of the CCA states that a reference to engaging in conduct shall be read as a reference to …doing or refusing to do an act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or giving effect to a provision of, an understanding or the requiring of or giving of, a covenant;… 41 It is to be noted that the definition of engaging in conduct is not restricted to the making of, or to the giving effect to, an arrangement or understanding. Acting "in concert" 42 Speaking generally, to act "in concert" normally means to act in a coordinated or organised way. 43 The ACCC relied upon the definition of "in concert" espoused in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 ('Tillmanns') by Bowen CJ at 373: Acting in concert involves knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously. 44 The ACCC further contended that it was not necessary to establish a "common purpose" for persons to be acting "in concert". There is a distinction between "purpose" and "motive". The "purpose" refers to the effect sought to be achieved by the conduct, not the motive of those involved; the "motive" is the reason for seeking an outcome, rather than the outcome sought to be achieved: see News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563, 573 (Gleeson CJ). 45 The ACCC relied upon Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Assn Inc (1989) 24 FCR 127, 132-3 (Sheppard and Wilcox JJ) in relation to "common purpose". In that case, their Honours rejected the proposition that a "common purpose" was necessary for persons to be acting "in concert" (in the context of the precursor to s 45D(1) of the CCA). Their Honours considered that [p]urpose does not at that stage come into the matter. It does become critical eventually because the paragraph will not apply unless the conduct in which the respondents have engaged was engaged in for the purpose of causing substantial loss and damage to the appellant's business. But that is a separate question to which the later submissions made by counsel for the respondents are directed. 46 However, the CFMEU pointed to subsequent authorities that did require a common purpose to be established before persons could be said to be acting "in concert". For example, in Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318 ('AMIEU'), French J (as he then was) held at 334 (in relation to s 45D): The phrase "in concert" has been construed variously in the cases as involving knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously. It has been said to involve contemporaneity and a community of purpose which requires a consensual element: see Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 337; Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1985) 9 FCR 425 at 433. Whatever the full scope of the term it does not apply to groups of employees of different employers who, as the result of requests by a common union, engage in similar conduct for their own respective purposes in response to similar issues of remuneration, conditions of employment, hours or work or working conditions. (Emphasis added). 47 The phrase "in concert" has also been considered in other contexts. In relation to s 12(2) and s 15(1) of the Corporations Act 2001 (Cth) ('Corporations Act'), Stevenson J (the trial judge) in Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWSC 231 ('Perpetual Custodians') at [102] held that, for two parties to be acting "in concert": (1) there must at least be an understanding between them as to their common purpose of object and a mere coincidence of separate acts is insufficient; (2) there must be some knowing conduct the result of communications between parties and not merely simultaneous actions occurring contemporaneously; (3) there must be an understanding between the parties as to a common purpose of object; (4) there must be contemporaneity and community of purpose; (5) a concurrence of views about the merits of a particular resolution proposed by another person is not sufficient; and (6) the understanding between the parties as to the common purpose or object must be consensual and there must be some adoption of it. 48 The New South Wales Court of Appeal in Perpetual Custodians did not disturb Justice Stevenson's analysis. 49 There is also authority for the proposition that degrees of time and space are important in determining whether persons are acting "in concert". In AMIEU, Gray J stated that: Greater difficulty is experienced when the separate acts are performed at separate locations and at different times. Difficult question arise as to the point in the causative chain of events at which a person whose act has contributed to some extent will be treated as not having acted in concert with those whose acts were performed more closely in time and space to that event. 50 In the context of union advocacy, Gray J continued: The difficulties in the concept of "in concert" are acute when the acts of one person are confined to advising, requesting, encouraging or inciting the other, who responds by performing the desired act. In the present case, the learned trial judge found that AMIEU by its officers advocated that stoppages of work should occur on the days on which they occurred, and that members who voted in favour of those stoppages at the preceding meetings were aware of that advocacy. In my view, such a situation will not ordinarily give rise to the conclusion that the trade union … and the employees who are its members … have acted in concert if the employees cease work. 51 Relevantly, Gray J noted that: The position of a trade union might be different if its rules empowered its governing committees or its officers to direct the taking of action, and obliged its members to comply with such directions. In such a case, the giving of the direction and the compulsory observance of it would go to make up the end result. 52 In my view, there must be a common purpose, or community of purpose, for there to be an acting "in concert" in the application of s 45D(1) of the CCA. I adopt the approach taken by French J in AMIEU. There needs to be a joint enterprise to be acting in concert – there cannot be such an enterprise unless the parties have a "community of purpose". The purpose here is that alleged by the ACCC, and the issue of different purposes mentioned by French J (as responding to different issues of remuneration, or conditions of employment) does not arise in the circumstances of this proceeding. Whilst there were different employers and groups of employees, the case brought by the ACCC is site specific (putting aside the omnibus claim), and the purpose alleged (if proved) would be a 'community of purpose' to implement the Ban Against Boral. I will return later to the issue of the nature of the communication made to the shop stewards by the CFMEU and whether it was a recommendation, request, advice or instruction. "Hinders or prevents" 53 The phrase "hinders or prevents" was not particularly controversial as between the parties. Importantly, in its closing submissions at paras 338-9, the CFMEU accepted the following: It is accepted that conduct, if it were proven to have occurred, in the nature of turning away Boral trucks from a concrete pour, or deliberately occupying so much time in undertaking a bogus safety check as to cause the concrete in an agitator to spoil would constitute conduct which prevents supply. It is also accepted that a clear statement that either of the above was going to occur in the future (ie that trucks "will be turned away" or that trucks will be subjected to a long, and deliberately slow – and fake – safety check such that their load would spoil) could constitute conduct capable of hindering or perhaps preventing supply. 54 In a practical sense for the purposes of this proceeding, this meant that the notion of "hinders or prevents" would turn on evidentiary considerations. 55 However, as the evidence unfolded, it became apparent (as I have indicated) that no Boral truck was actually turned away by the use of a bogus safety check. The true complaint was that statements were made effectively threatening bogus safety checks. It is this characterisation of the conduct the Court proceeds to consider, not the conduct of actually turning away Boral trucks. The "purpose" of causing "substantial loss or damage" 56 In the context of s 45D(1), the word "substantial" is used in the relative sense. Whether loss or damage will be "substantial" will depend upon the nature and scope of the relevant business. At the very least, the term means real or of substance and not insubstantial or nominal: Tillmanns at 382 (Deane J). 57 Furthermore, the purpose of causing substantial loss or damage need not be the only purpose if the conduct was engaged in for purposes which include that purpose. Nor must it be a substantial purpose – it only needs to be a purpose: CCA s 45D(2). This is relevant as the CFMEU advanced a "positive safety case", that the purpose for the impugned conduct was for the promotion of worker safety. In light of s 45D(2), even if I was satisfied of the safety case, if the ACCC was successful in persuading the Court that another purpose was to cause substantial loss and damage, this would be sufficient. Conduct that "would have or be likely to have" the effect of causing substantial loss or damage 58 The words "substantial loss and damage" have the same content as relating to purpose. To elaborate further, it is not necessary to show that the loss or damage would be a "major blow" to Boral's business: see Building Workers' Industrial Union Of Australia And Others V Odco Pty Ltd (1991) 29 FCR 104, 140 ('BWIU'). Further, the Court is not confined to looking just at each site: see BWIU at 140. The enquiry looks at Boral's overall business. 59 The words "would have or be likely to have" permit the Court to look not only at what has been established on the facts but also to infer from those facts what was likely to be the consequence of the conduct, looking at the position at or about the time the conduct was engaged in: TPC v TNT Management Pty Ltd (1985) 6 FCR 1 at 50 (Franki J). The reference to "would be likely to have" is meant to convey a lower degree of likelihood than "would have". "Likely" in this context is not synonymous with more likely than not and it will suffice if the conduct is, in the circumstances, such that there is a real chance or possibility that it will, if pursued, cause substantial loss or damage: Tillmanns at 382 (Deane J). 60 In determining the likelihood of conduct to have a prohibited effect, Deane J in Tillmanns held that a Court should not restrict itself to a consideration of the actual effects of that conduct when it occurred: In my view, it was neither necessary nor correct to determine whether the conduct would have had or have been likely to have had the effect specified in sec. 45D(1) by reference only to the effect of the conduct in the limited period up until the time when the intervention of the injunction stayed its intended indefinite course. The effect of the conduct during that limited period is, of course, relevant to determining whether, if permitted to continue indefinitely, the conduct of the Union and the personal respondents in imposing and procuring enforcement of the black ban would have had or would have been likely to have had the effect of causing substantial loss or damage to the appellant's business. It is not, however, necessarily determinative of it. (Emphasis added). 61 In Barneys Blu-Crete Pty Ltd v Australian Workers' Union [1979] ATPR 40-139 at 18,510, Northrop J similarly said: It is contended that in the absence of evidence that over the period the black ban was being implemented the applicant had made less profit or had suffered a greater loss than that which it would have made or suffered if the black ban had not been implemented, the applicant had failed to prove substantial loss or damage. I do not accept that contention. The phrase "loss or damage" in sec. 45D(1)(a) is not directed to the question of quantum or less profit or greater loss over a period of time. The phrase is directed to a factual situation where the purpose and effect or likely effect is the cause of substantial loss or damage to the business. Where the conduct engaged in prevents a corporation from obtaining the raw materials necessary to enable it to carry on its business, of necessity that conduct is or is likely to have the effect of causing loss or damage to that business. That is the position in the present case, and on the facts proved, the loss or damage is substantial. The effect of the conduct engaged in is to prevent the applicant from producing concrete. The very basis of its existence has disappeared. (Emphasis added). 62 Thus, harm to a business in the sense of s 45D encompasses not only the direct and quantifiable impacts on a business in respect of particular operations, but may also extend to more global impacts on the business, including on its reputation. The CFMEU agreed with the ACCC that the phrase "would have or be likely to have" requires an assessment to be made on a forward looking basis (ie what was likely to have been the effect). However, it submitted that this does not mean that the Court should disregard what has happened as a matter of fact. 63 The CFMEU contended that the evidence of the actual effects of impugned conduct constituted the best evidence available to the Court as to what the likely effect would have been, if assessed at the relevant time. In Willis v The Commonwealth (1946) 73 CLR 105, Latham CJ (at 109) stated: …where actual facts are known, speculation as to the probability of those facts occurring is surely an unnecessary second-best. Damages are awarded for injury actually suffered and for prospective injury. Prospective injury can only be estimated with more or less probability. But where the extent and character of what would at one time be described as prospective injury depends upon the happening or non-happening of a particular event and that event has in fact happened, it is unnecessary to speculate as to whether or not this event might happen and, if so, when. In such a case prospective damage (or diminution of damage) has become actual. (Emphasis added). 64 At 116, Dixon J also referred with apparent approval to a review of the relevant authorities by Uthwatt J in In re Bradberry (1943) Ch 35, where the relevant principle was stated to be that "where facts are available they are to be preferred to prophecies". 65 The CFMEU also offered the example of James Hardie Industries NV v Australian Securities and Investments Commission (2010) 274 ALR 85 ('James Hardie'). In this case, the NSW Court of Appeal was concerned with whether conduct by the directors of James Hardie contravened s 1041E of the Corporations Act in that it was "likely" to have a particular inducing effect. Chief Justice Spigelman, Beazley and Giles JJA referred to Deane J's decision in Tillmanns and observed (at [341]) that s 1041E did not require proof of actual inducement, and the fact that persons were not in fact induced was not necessarily determinative of the predictive exercise the Court was required to undertake. They continued: However, as his Honour pointed out, in certain instances where conduct has run its course, a court would rarely be justified in ignoring the actuality of what happened … (Emphasis added). 66 The CFMEU submitted that the impugned conduct about which the ACCC complained had also run its course, and that the best evidence, in each instance, as to the likely effect of the impugned conduct, was what actually happened. It submitted that its evidence demonstrated that each instance of impugned conduct, considered individually, did not as a matter of fact have any substantial impact on the business of Boral. Thus the CFMEU contended that, on the basis of this evidence, the impugned conduct would not have nor be likely to have the effect of causing substantial loss or damage to the business of Boral. 67 I accept that once the actual facts are known, this is relevant (and sometimes) powerful evidence, of likely outcomes. Nevertheless, the relevant enquiry here is to look at the conduct at the time undertaken, assess its likely outcome objectively, considering as part of that analysis, the actual outcome. Attempted contraventions 68 The statement of the principles relating to an attempted contravention are not in real contention between the parties. It is the nature of an attempt case that the attempt has or may not have succeeded. There is nothing in the nature of the substantive provisions relevant to this proceeding that would preclude the possibility of an attempt case being available, even though it involves two or more persons acting in concert to achieve a particular purpose. 69 For conduct to amount to an attempt, it must involve one or more steps towards the commission of the unlawful act and be immediately, and not merely remotely, connected or preparatory to the commission of the act: Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 7 FCR 534 at 538-9. 70 When the conduct said to constitute the attempt is comprised of words, those words must be so framed as to be persuasive and to convey the potential for an arrangement or an understanding: Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 at 736. Toohey J went on in Tubemakers to say: A statement made quite unilaterally of intention to do something or to refrain from doing something, with no suggestion express or implied that others might act in the same way, is hard to visualise as an attempt to make an arrangement or arrive at an understanding … 71 The mental element requires the ACCC to prove an intention to bring about the desired prohibited result. In this respect, Toohey J said in Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168 at 183: Where an attempt to induce is alleged, the submission was that there must be an intention to bring about the required result. I accept that, in the case of attempt, there must be an intention to bring about the prohibited result. I refer to my decision in Trade Practices Commission v Tubemakers of Australia Ltd (supra) in particular at 737 where I said: "In ordinary parlance, to say that a person has attempted to do something means that he has acted with the purpose of bringing about that which he is said to have attempted. Questions may arise as to what precisely must be proved to establish attempt to commit an offence, but the principle that proof of intent is necessary is well established …" CONSIDERATION 72 I now turn to a consideration of the evidence in order to make findings about the ACCC's claims. First, I will address the evidentiary objections raised by the parties. Secondly, I will make findings in relation to meetings of the CFMEU in February and March of 2013 at Trades Union Hall in Carlton, Victoria ('Trades Hall meetings'). It is convenient to make these findings upfront as the Trades Hall meetings pertain to each of the ACCC's 12 claims. Finally, I will consider each of the conduct allegations and attempt allegations in turn, followed by the omnibus claim. Evidentiary objections 73 The trial proceeded on the basis that certain evidence objected to would be admitted provisionally, subject to full argument in relation to the objections at the conclusion of the trial. The CFMEU raised a number of evidentiary objections in their closing submissions. I will now consider those objections in turn, as considerable emphasis was placed upon each objection by the CFMEU. However, as will be observed, I have concluded that the evidence in contention is admissible, although restricting its use by reference to each site and separate allegation. 74 One of the areas of contention between the parties concerned the evidence given by various customers of Boral of statements (or representations) made to them by the shop stewards at the various sites. Those representations were statements by shop stewards to the effect that Boral cannot deliver concrete on site, or there is a ban on using Boral on site, or that the shop steward will need to check the trucks if the customer uses Boral on site ('ban-related representations'). Whilst such evidence of the customer witnesses might otherwise be inadmissible hearsay, the ACCC contended that such evidence (if not otherwise admissible) was admissible as admissions of the CFMEU. This was due to the operation of s 87(1)(c) of the Evidence Act. 75 Section 87(1)(c) relevantly states: For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: … (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. 76 The ACCC submitted that these statements (or representations) were also admissible against the CFMEU as original evidence or circumstantial evidence, and were not to be treated as hearsay. 77 For instance, the ACCC relied upon comments in Ahern v R (1988) 165 CLR 87 ('Ahern') by the High Court at 93 that: In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise, which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other. 78 In addition, the ACCC relied upon R v Associated Northern Collieries (1911) 14 CLR 387 ('Associated Northern Collieries') and ACCC v Air New Zealand Limited (No 1) (2012) 207 FCR 448 ('Air New Zealand'). 79 In Associated Northern Colleries at 400 Isaacs J said: … though primarily each set of acts is attributable to the person whose acts they are, and to that person alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge. 80 In Air New Zealand Limited, Perram J stated at [25]: .. one may prove an agreement or understanding between a group of people by proving behaviour of individual group members consistent with the existence of the agreement; that such behaviour may include evidence of what members of the group said to each other or even to third parties; and, that this use of conduct as circumstantial evidence of an agreement does not involve a hearsay use of the words used when some or all of the conduct relied upon consists of speech acts. This is straightforward: Ahern at 93-4. 81 This is one aspect of original and circumstantial evidence which may be relied upon by the Court, as the purpose of the evidence does not involve proof of the truth of any assertion or implied assertion. 82 As with all evidence, it therefore is important to determine the purpose of the evidence being introduced, and its relevance to the issue of fact that it is said to support or prove. 83 ACCC in its closing submissions made this purpose and relevance very clear: In this case, the statements made by the relevant shop stewards on site … provide powerful circumstantial evidence supporting the existence of the fact that the CFMEU gave the Ban Against Boral instruction at the February and March 2013 shop stewards meetings and that the relevant shop stewards attended at least one of those meetings understood that they should implement the Ban Against Boral at the relevant construction site. The statements made by the relevant shop stewards have a concurrence of character in the sense that the statements are to the same substantial effect. For example, as outlined below, the evidence establishes that: (a) at the Port Melbourne Site, Shop Steward Lythgo said to Fabrizio Ubaldi of Squadron Concrete Pty Ltd (Squadron), following the February shop stewards meeting, that there was a ban on Boral and that it was a directive from the CFMEU [Ubaldi: T176/14-45, T177/1-7]; (b) at the Tarneit Site, Shop Steward Mazzeo said to Sean McEvoy of Oceania Universal Paving Australia Pty Ltd (Oceania) that the CFMEU did not want Boral supplying concrete on any CFMEU site. [McEvoy: T121/19-24, T121/31-33]. McEvoy also heard Shop Steward Mazzeo telling members at a toolbox meeting days later following a shop stewards' meeting about banning Boral trucks on job sites [McEvoy: T122/21-30]; (c) at the Richmond Site Shop Steward Scott said to Linus Humphrey of Oceania, shortly after the March 2013 shop steward's meeting, "Don't use Boral. We don't need this shit" and "We don't need any hassle from the CFMEU" or words to that effect [Scott: T243/11-19]; (d) at the Melbourne City Site, Lou Vlahogiannis (Shop Steward Vlahogiannis) said to Darren Dudley words to the effect of, "you're not going to be using Boral" and when Mr Dudley protested, Shop Steward Vlahogiannis said "That's the way it is, the union is just around the corner. That's just the way it is" and "You can use Boral if you like, but we will make sure that it takes you all day to unload. I will get a safety team down here, and it will take you all day to unload a truck" [Dudley: T47/26-27, T47/38-40, T48/1-6]; and (e) at the Notting Hill Site, Shop Steward Kemp said to Mr Humphrey of Oceania "You won't be using Boral" to supply concrete [Humphrey: T141/30-35]. They also reveal a coincidence of time. The statements start to be made immediately following the February 2013 meeting and occur within a relatively short period surrounding the meetings with two exceptions. For example, at the Officer Site, on the Friday following the February shop stewards meeting, Shop Steward Carrillo said to Mr Humphrey of Oceania that he had been instructed by the CFMEU that there were going to be issues with the use of Boral on site [Humphrey, T138, 15-23]. Whilst the statements at the Werribee and Williams Landing sites occurred sometime later, this delay is explicable by reason of the fact that concrete supply had only recently commenced on these sites and also the presence of Organiser MacDonald on the Werribee Site. 84 It is appropriate at this stage to mention s 98 of the Evidence Act, which was not relied upon by ACCC, but which the CFMEU submitted is applicable. If reliance is placed by a party on coincidence reasoning to prove an issue of fact, then the regime set out in s 98 of the Evidence Act will need to be followed by that party. 85 Section 98(1) states that: (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 86 It is to be observed that no notice had been given by the ACCC in relation to s 98(1)(a), no application to dispense with the notice requirement had been made pursuant to s 100, and no argument was presented as to whether the evidence had "significant probative value". As Gageler J observed in Hughes v The Queen [2017] HCA 20, at [105] in dealing with tendency evidence, the utility of the notice goes beyond providing procedural fairness to other parties, but is required to enable the Court to make a rational decision as to the probative value of the evidence. As I have said, the ACCC submitted that s 98 had no application to the evidence being led in this proceeding. 87 Circumstantial evidence may be capable of supporting coincidence reasoning and other reasoning which is not regulated by s 98. Evidence of events, conduct or representations may be relevant and admissible for other purposes, and relied upon accordingly. Further, s 98 does not apply by mere reliance on improbability of coincidence unless the process of reasoning relied on similarities between certain events or the circumstances. However, s 95 expressly provides that evidence that is not admissible for its coincidence purpose "must not be used to prove that matter even if it is relevant for another purpose". I note this provision is in contrast to the statutory hearsay, opinion and credibility rules. Therefore, if coincidence reasoning is relied upon, this may result in significant difficulties of proof if s 98 is not complied with – see for example Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2009) FCA 1495 ('Aristocrat'). 88 Therefore, the position relevantly in this proceeding, is that even if evidence is admissible as relevant circumstantial evidence, or comes within s 87(1)(c), if the ACCC is using coincidental reasoning to prove a fact, this is not permissible reasoning to prove that fact. In other words, if the ACCC's use of the evidence is to rely upon, to prove, and then reason as prescribed by the elements of s 98, it is caught by the requirements of s 98. It is then "coincidence evidence" as defined in the Dictionary of the Evidence Act. Even if the ACCC does not accept that this is the process of reasoning, it is ultimately up to the Court, even an appellate court on review, the determine the process of reasoning for itself, as the Aristocrat case demonstrates. It is to be recalled that there the Full Court disagreed with the trial judge's characterisation of the reasoning process, and found that the reasoning relied upon by the trial judge was regulated by s 98 and quashed the trial judge's findings of fact against one of the parties. 89 However, I now return to the issue concerning the operation of s 87(1)(c) before considering further s 98. Using the language of s 87(1)(c), the ACCC submitted there was sufficient evidence other than the ban-related representations to prove that: the common purpose between the CFMEU and the relevant shop stewards was to implement the Ban Against Boral; and the ban-related representations were made in furtherance of the common purpose. 90 Therefore, the ACCC contended that the evidence of the customer witnesses of those ban-related representations was admissible because of the application of s 87(1)(c). 91 The CFMEU disagreed, and in its closing submissions it made separate arguments in relation to evidence of ban-related representations of (a) Messrs Pettifer, Vlahogiannis, and Bellofiore and (b) other shop stewards. The CFMEU made this distinction because it considered there was much less available evidence to suggest that Messrs Pettifer, Vlahogiannis, and Bellofiore (as compared to other shop stewards) made their ban-related representations in furtherance of a common purpose. This was premised on the proposition that the ACCC could not use the ban-related representations themselves as supporting evidence on that point, and there was very little other evidence in this respect. 92 In relation to the other shop stewards, the CFMEU accepted that the evidence of their ban-related representations might receive different treatment under s 87(1)(c). In fact, the CMFEU accepted that "such evidence may be admitted for the purpose of testing it against the other evidence in relation to the same site". This was only because, as the CFMEU submitted, there was sufficient available evidence to suggest that those ban-related representations were made in furtherance of a common purpose. At paragraph 105 of the closing submissions of the CFMEU it was stated: Rather, it is by reason of the fact that at the end of the evidence, there exists other admissible evidence either that the shop steward in question attended the Trades Hall meetings (other than perhaps in the case of Harisiou), or evidence that the shop steward accepted that it was possible that by other means (including dissemination of check lists and publicity in the media) they became aware of issues with Boral. 93 I should indicate that I find that on the balance of probabilities Mr Andrew Harisiou attended the Trades Hall meetings, as to become aware of the issues with Boral (transcript, p 727). In this way, I would put him in the same category as the shop stewards other than Messrs Pettifer, Vlahogiannis and Bellofiore. 94 I will admit the evidence of the customer witnesses of the ban-related representations of the shop stewards other than Messrs Pettifer, Vlahogiannis and Bellofiore because of the application of s 87(1)(c). 95 I now turn to a consideration of the evidence to determine whether s 87(1)(c) is satisfied in relation to customer witness evidence of the ban-related representations of Messrs Pettifer, Vlahogiannis, and Bellofiore. As indicated above, the phrase "ban-related representations" refers to representations made by shop stewards to the effect that Boral cannot deliver concrete on site, or there is a ban on using Boral on site, or that the shop steward will need to check the trucks if the customer uses Boral on site. Evidence of ban-related representations of Mr Pettifer 96 Mr Linus Humphrey gave evidence that Mr Pettifer made two ban-related representations in the course of a 12-month job on the Lilydale site beginning in mid-2012 (transcript, p 144-6): HUMPHREY: There were two conversations. One was earlier and that was when – that he [Pettifer] didn't want Grollo branded trucks on the site. And that went on and he basically asked Boral not to send the Boral logo trucks that were owned by Boral, but had Grollo labelling on them. And then weeks after that, quite a while after that, then I was instructed that I wouldn't – we wouldn't be using Boral any more. … COUNSEL: Can you just explain again what he said, to the best of your recollection, about that topic [the first conversation]?--- HUMPHREY: "I don't want those grubby trucks here on site." … COUNSEL: And was it your understanding it was those trucks, with those logos, that were causing Mr Pettifer concern?--- HUMPHREY: Yes. Yes. … COUNSEL: Okay. All right. Now, I think you said a few weeks later there was another conversation with Gerry Pettifer?--- HUMPHREY: Might have even been about two months, because it was about halfway through the project. So it was – there was a period of time in between. … COUNSEL: Okay. So, just – you've already indicated, generally, what the conversation was about. Could you just tell his Honour, again, what was said by Mr Pettifer on this second occasion?--- HUMPHREY: Words to the effect that, "You won't be using Boral here any longer". COUNSEL: Okay. Did he say anything more than that?--- HUMPHREY: Not too much more. COUNSEL: Did he explain why Boral trucks wouldn't be used on the site?--- HUMPHREY: That was the direction he had been given by the union. COUNSEL: Okay?--- HUMPHREY: And he was going to enforce it. 97 The first question to determine is what other evidence can establish that the shop steward was in a common enterprise or more specifically whether the Court can be sufficiently satisfied that the representation made by the shop steward was made in furtherance of a common purpose. 98 It is to be recalled that each allegation relates to a particular site, and the allegation is that each shop steward acted in concert with the CFMEU. The Court cannot, at this stage at least, draw on the evidence relevant to other sites to show a "common purpose" in the application of s 87(1)(c). 99 I am not satisfied there is sufficient evidence in considering the application of s 87(1)(c) which would permit the Court to conclude that Mr Pettifer and the CFMEU were acting pursuant to a common purpose. There was no direct evidence Mr Pettifer attended the Trades Hall meetings in February and March 2013 (to which I will return). To the extent there is evidence that Mr Humphrey passed on the representation of Mr Pettifer to a third party (Mr Mark Milano), even if admissible, this would be of no probative value as to whether Mr Pettifer and the CFMEU were engaged in a common purpose. 100 The only other evidence relied upon by the ACCC was the fact that Oceania changed its concrete supplier to Holcim for a while, but at the very end of the project used Boral for the decorative concrete. This evidence tended to show that Mr Pettifer did nothing to stop the Boral trucks at this stage. The evidence does not demonstrate a common purpose with the CFMEU as alleged. 101 I do observe that the evidence of Mr Humphrey and Mr Mark Milano was not contested, and Mr Pettifer was not called by the CFMEU. Whilst I may infer that Mr Pettifer would not have assisted the CFMEU's case, I cannot use the failure to call a witness to fill a gap in the evidence. If, as I have found, there is no evidence to demonstrate a common purpose, the fact Mr Pettifer was not called cannot provide any evidence of such a common purpose. 102 Therefore, to the extent this evidence of Mr Humphrey is sought to be admitted for a hearsay purpose, it is not admissible pursuant to s 87(1)(c). Evidence of ban-related representations of Mr Vlahogiannis 103 Mr Darren Dudley gave evidence that Mr Vlahogiannis made a ban-related representation in the course of a job on the Melbourne City site in late-2012 or early-2013 (transcript, p 47-8): COUNSEL: As best you can remember, just … explain to his Honour what Lou [Vlahogiannis] said … to you and what you said to him? DUDLEY: We had just finished the footings to this job. We had been using Boral. Lou said to me, "We're pretty much kicking off from here on, so you're not going to be using Boral." And I – we – we had a – a bit of banter between the two of us. I got on very well with Lou, so what I said to him was pretty straight up, and he accepted it, the – the way I spoke, but I said to him - - - … I – I said to him, "You're a bunch of arseholes." I said, "This is going to cost us a lot of money," and he said, "That's the way it is." He said, "The – the union is just around the corner. That's just the way it is." COUNSEL: Do you recall him saying anything else to you?--- DUDLEY: We had probably two or three conversations over a couple of months … but he also … He said to me, "You can use – you can use Boral if you like," because I said, "This is going to cost us a fortune. We've got an account with Boral. If we've got to change, it's weeks and weeks with the work, plus a lot of money," and he said, "You can use Boral if you like, but we will make sure that it takes you all day to unload. I will get a safety team down here, and you won't – it will take you all day to unload a truck." COUNSEL: Did he say where the safety team was from?--- DUDLEY: He just said "a safety team" – "our safety team". I would assume that's from CFMEU. … I had a bit of a joke to Lou, saying, "You've got to be kidding me. That's – there has never been an issue – in my whole time in the building industry, I have never, ever seen a concrete truck checked for safety – ever – to this day." COUNSEL: And what did Lou say, as best as you can recall?--- DUDLEY: "That's the way it is." 104 A similar analysis that was applied to Mr Pettifer applies to Mr Vlahogiannis. 105 There is no direct evidence Mr Vlahogiannis attended the Trades Hall meetings, nor to suggest he otherwise was informed of the Ban Against Boral in February or March 2013. There is no evidence Mr Vlahogiannis did a safety check, or knew of the CFMEU's position in this regard. 106 Therefore, to the extent this evidence of Mr Dudley is sought to be admitted for hearsay purpose, it is not admissible pursuant to s 87(1)(c). Evidence of ban-related representations of Mr Bellofiore 107 Mr Mark Milano gave evidence that Mr Bellofiore made a ban-related representation in the course of a job on the Williams Landing site in approximately March 2014 (transcript, p 202): COUNSEL: All right. Explain to his Honour what you recall about what happened at the site induction meeting, insofar as these Boral issues are concerned?--- M. MILANO: When I was deciding – we had basically just been given – awarded the project, and I was just basically going out there to show my face and meet the site team. And, in doing that, Guy had – had mentioned to – to me that we needed to sort out if we were planning on using Boral, because we had had – we had experiences with Guy previously, and he knew we were a Boral customer, but if we were planning on using Boral we needed to speak to whoever we needed to speak to to get it sorted out. COUNSEL: That's what Mr Bellofiore said to you?--- M. MILANO: Yes. COUNSEL All right. Did Mr Bellofiore say anything else to you in the course of that conversation, that you can recall?--- M. MILANO: He just didn't want any grief on the job, and just to talk to whoever I needed to talk to to fix the problem. 108 A similar analysis applies to Mr Bellofiore. There is no evidence to connect the communication (directly or indirectly) by the CFMEU to Mr Bellofiore regarding the Ban Against Boral. 109 I should also indicate that even looking at the ban-related the representations relied upon by the ACCC themselves, they did not provide probative evidence that safety checks at the site were necessarily going to be undertaken or that the Ban Against Boral was made by the CFMEU or understood by Mr Bellofiore (constituting the conduct of the ban). 110 Further, there was some doubt as to when the ban-related representation was made, but on the balance of probabilities, I find they occurred in about March 2014. This is a year after the alleged instruction was given by the CFMEU at the Trades Hall meetings in February or March 2013. 111 Therefore, to the extent this evidence of Mr Mark Milano is sought to be adduced for a hearsay purpose, it is not admissible pursuant to s 87(1)(c). 112 Before going to the question of whether the ban related representations are otherwise admissible (as original or circumstantial evidence) there are some other objections that should be dealt with. 113 The ACCC contended that evidence of customer witnesses as to the ban-related representations of Messrs Pettifer, Vlahogiannis, and Bellofiore if hearsay was admissible for another reason, namely as admissions of those shop stewards. Reliance was placed by the ACCC on s 81 and 82 of the Evidence Act. 114 This contention can be dealt with briefly. The definition of an admission within the Dictionary of the Evidence Act is that of a previous representation that is made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding) and adverse to the person's interest in the outcome of the proceeding. Given that Messrs Pettifer, Vlahogiannis, and Bellofiore are not parties to the proceeding, their ban-related representations cannot be treated as admissions for the purposes of the Evidence Act. 115 The ACCC also contended that the ban-related representations of Mr MacDonald (a CFMEU Organiser) would be admissible as an admission of the CFMEU. Mr Damien Milano testified that Mr MacDonald made the following statements (transcript, p 103-4): COUNSEL: Okay. Now, I want you to explain to his Honour how that came about. Why you actually changed from Boral to another company to supply concrete?--- D. MILANO: On around 18 March, I received a call from Drew MacDonald, suggesting to me that it would be a good idea if we changed to another concrete supplier. So that was the essence of the phone call. So he directly called me … COUNSEL: Okay. Did he say anything else to you about this question about Boral trucks?--- D. MILANO: Well, basically that if we would continue to use them, there would be some issues on site with delays of pours or checking of trucks or other things that could cause us issues and delays to our company. 116 I consider that to the extent that this evidence amounts to an "admission", Mr MacDonald's evidence is admissible against the CFMEU pursuant to s 87(1)(b). Mr MacDonald had authority to act for the CFMEU and the representations related to a matter within the scope of Mr MacDonald's authority. 117 However, despite the above analysis dealing with the objections to evidence raised by the CFMEU and the operation of s 87(1)(c), I will nevertheless admit the ban-related representations of the shop stewards, including these of Messrs Pettifer, Vlahogiannis and Bellofiore. 118 I regard these ban-related representations as being properly admitted as original or circumstantial evidence, and admissibility is not dependent on the operation of s 87(1)(c). The ban-related representations are relevant to assist in the proof of the fact the CFMEU gave the Ban Against Boral 'instruction' either at the February or March 2013 Trades Hall meetings, and that the relevant shop steward on the specific site understood this 'instruction' – the nature of which I will return to. The nature and purpose of the evidence is similar to that referred to in the passages relied upon by the ACCC in Ahern, Associated Northern Collieries and Air New Zealand. The ban-related representations, whether "speech acts" or conduct, are relevant not to prove against the CFMEU the truth of the assertions made by the shop steward. 119 I stress this is a course of reasoning that only can apply to each separate site, each ban-related representation and each separate shop steward. 120 To the extent the ban-related representations are otherwise relied upon across all the sites, this has been objected to by the CFMEU on the basis of the application of s 98. 121 In my view, this objection should be upheld. As the closing submissions of the ACCC make abundantly clear, coincidence reasoning and similarities are relied upon as part of the argument – the same substantial effect and similarities of all the ban-related representations and their coincidence of time to prove the making of the CFMEU Ban Against Boral and the shop stewards understanding of it. 122 Of course, this does not mean certain facts sought to be proved by the ACCC cannot be proved by the same evidence and reasoning in relation to each site. Once specific contested evidence is admitted, it must then be assessed alongside all the other evidence. Once this is done, then the Court needs to consider each element of the alleged conduct to finally determine whether those elements have been proved; this is not for the purpose of determining admissibility issues but to determine liability on the balance of probabilities in relation to each site. Trades Hall Meetings 123 It is now necessary to consider the Trades Hall meetings and the context in which they occurred. 124 The ACCC alleges that, at the Trades Hall meetings on 14 February 2013 ('February meeting') and 14 March 2013 ('March meeting'), the CFMEU gave an instruction to the relevant shop stewards that Boral should not be allowed on site to supply concrete on construction sites in metropolitan Melbourne (the Ban Against Boral). There is no other allegation that the instruction came from another source outside those meetings. To the extent it is not demonstrated that a particular shop steward did attend the March meeting (which I find to be the only meeting where the instruction was given or communicated), there is no other reliable evidence indicating that that particular shop steward knew of the instruction as alleged or knew of the instruction prior to their alleged implementation of the Ban Against Boral. The ACCC further alleges that the nature of the instruction was such that the CFMEU expected and the relevant shop stewards understood that the shop stewards would implement the Ban Against Boral. The ACCC submitted that the instruction included information or advice to the effect that shop stewards should not allow Boral to supply concrete to commercial construction sites. 125 I am wary of adopting the term "instruction" without further elaboration. This term carries various connotations about the nature of the communication. Therefore, I will first consider whether the CFMEU communicated with shop stewards at the Trades Hall meetings about implementing a Ban Against Boral. Secondly, I will consider the nature of that communication, and whether it was in fact an "instruction" as alleged by the ACCC. 126 The evidence establishes that all the relevant shop stewards other than Messrs Vlahogiannis, Pettifer and Bellofiore attended the Trades Hall meetings. 127 The central evidence of the ACCC concerned minutes of the Trades Hall meetings. No evidence was led directly from the CFMEU from any organiser of the meetings to assist the Court to understand the minutes other than as written. I accept the minutes as being an accurate (but not a complete) record of what was said at the meetings. Importantly, I accept that the context of the meetings is significant, as occurring in the middle of a serious and ongoing dispute between the CFMEU and Grocon. I accept that the relevant shop stewards knew of this dispute, and knew that Boral was an important (if not exclusive supplier) of concrete to Grocon at the relevant time. I accept also that through the distribution of newsletters and the press, the shop stewards would have been aware from February 2013 to March 2014 of the ongoing dispute. This is not to find that through this medium they knew of or followed the instruction relating to the Ban Against Boral as alleged. 128 Further, in or around February to April 2013, there was a dispute between Boral and the CFMEU in the Supreme Court of Victoria concerning the supply of concrete, of which the relevant shop stewards would have been aware of. At the very least, the minutes show that Boral was mentioned adversely by certain persons present at the meetings, and legal action was specifically referred to in the minutes. 129 The Trades Hall meetings were addressed by officers of the CFMEU. Specifically, the minutes record Mr Setka and Mr Reardon speaking at the March meeting, Mr Setka being the primary person discussing Boral. 130 In the minutes of the February meeting, the following was recorded under the heading "Grocon": Grocon have involved ICPS, Summit Concrete and Boral in their breaches of the EBA. Delegates should not be helping such subies on their sites. TWU have also been told about Boral's role. 131 The minutes also indicate that discussion took place about the CFMEU's ongoing dispute with Grocon, including the "need to take action" against companies subbing to Grocon, including Boral, and the question was put whether replicate the circumstances of the VCCC site elsewhere, to which Mr Setka responded "Yes!". 132 In the minutes of the March meeting, the following was recorded under the heading "Grocon": Legal actions against the Union from Grocon, in conjunction with Boral are increasing. Boral trucks – need to be inducted and pass plant assessments. Trucks have to be "De-dagged", checks every three months. Need to stop Boral going on site! The fight with Grocon is on-going. We will bring the dispute to an end. 133 Later in those minutes, in the "Questions from the reports" section, there is a note recording questions "about the ability of Delegates to check out concrete trucks safety and maintenance" and whether "people [are] aware that Alsafe are subsidiary of Boral". In response, a CFMEU official at the meeting: spoke about attitude to Boral and how to handle their legal action against the Union. 134 A second person then stated that there was "no consistent approach to concrete suppliers". The CFMEU official then stated: that's correct, but we owe Boral no favours given their anti CFMEU attitudes and close relationship with Grocon. Every concrete supplier should be subject to scrutiny. New checklist is being distributed and Delegates should use them. 135 The ACCC also relied on oral testimony of shop stewards Mr Robert Scott and Mr Peter Thomas. Mr Scott was asked in cross-examination (by the ACCC, having been granted leave to do so) about the CFMEU's communication in relation to Boral (transcript, p 542): COUNSEL: All right. Now, I want to ask you some general questions, and I will keep it confined. Did you at any stage, Mr Scott, ever get instructions from the CFMEU that Boral was not to supply concrete on building sites?--- SCOTT: Yes, I did. COUNSEL: All right. And did you get that instruction from a shop stewards' meeting held by the CFMEU in early 2013?--- SCOTT: Yes, I did. COUNSEL: And whilst you don't remember who gave you the instruction at the shop stewards' meeting, it was an instruction from someone with in the executive of the CFMEU. Do you agree with that?--- SCOTT: Somebody – I don't know executive, or who it was, but there was somebody there. Yes. COUNSEL: All right. What I'm suggesting to you is a senior union official?--- SCOTT: Correct. COUNSEL: All right. And when you were asked more questions about that, you told me that you believed that Mr Setka, Mr Reardon and Mr Edwards were present at those shop steward meeting about 99 per cent of the time?--- SCOTT: They do. COUNSEL: All right. When you got that instruction from that shop stewards' meeting, did you take that instruction seriously?--- SCOTT: Yes, I did. COUNSEL: Did you consider that you didn't have any choice, as a CFMEU shop steward, but to implement that instruction?--- SCOTT: Yes. 136 Mr Thomas was also asked in cross-examination (by the ACCC) about the CFMEU's communication in relation to Boral (transcript, p 703-10): COUNSEL: Now, I think you've said to his Honour that you've got no recollection of anything that happened at particular shop stewards meetings in early 2013?--- THOMAS: No. COUNSEL: That's right, isn't it?--- THOMAS: Nothing specific. No. COUNSEL: Yes. Okay. Well, what I want to do is take you through these minutes of the meeting that took place on 14 February 2013 and ask you as we go through it whether any of these entries jog your memory in any way. … COUNSEL: So you've got no recollection – other than what you've said to his Honour you've got no recollection of anything coming up at a meeting at Trades Hall in early 2013 in relation to Boral and Grocon dispute?--- THOMAS: No. … COUNSEL: Again, I want to suggest to you that you knew in February or March 2013, whether by reason of being at a shop stewards meeting or through conversations with other shop stewards, that the CFMEU wanted to stop Boral going on-site. That's right, isn't it, Mr Thomas?--- THOMAS: So have I got knowledge of that conversation? COUNSEL: No. The fact that the CFMEU wanted to stop Boral going on-site in early 2013; you knew that fact. Whether you found out about it at a particular meeting or through conversations with other shop stewards or other members of the Union, you knew that fact in early 2013, didn't you?--- THOMAS: Yes. 137 As I have indicated, the ACCC also relied upon the context of the meetings and the actions of each shop steward on each site that demonstrate that the CFMEU made the "instruction" as alleged. 138 The CFMEU pointed to the evidence of other shop stewards who could not recall an "instruction" about a ban against Boral at the relevant Trades Hall meetings. In particular, the CFMEU emphasised the recollections of various shop stewards that they were encouraged (for safety reasons) to check all concrete trucks on sites, not just Boral (transcript, pp 430 (Mazzeo), 472-3, 497 (Carrillo), 508-9, 553 (Scott), 655 (Kemp), 580 (Lythgo)). 139 I should say something about safety checks at this stage. The CFMEU presented a great deal of evidence as to the need to check all trucks coming on construction sites, and the fact that all shop stewards were encouraged to do these checks. I accept this evidence. There was an obvious need to carry out such checks for the promotion of worker safety. However, the real issue was whether there was an instruction given and understood by the shop stewards to stop Boral supplying concrete to various sites: one way to do this was to make it clear to the customers of Boral that the Boral trucks would be subjected to long or deliberately slow safety checks. This would be effective without actually subjecting Boral trucks to intensive safety checks. In other words, the threat would be enough (in the environment of the time) to cause customers of Boral to look elsewhere for concrete. There was no dispute that the implementation of safety checks could be employed to hinder supply, as there would be a real risk that the concrete load would spoil. The threat to a customer of Boral would be enough to discourage (at the least) the customer from contracting with Boral. I am satisfied that the CFMEU, all the shop stewards, and Mr MacDonald knew of the importance of timely unloading of concrete on construction sites, the opportunity available to delay unloading by the use of long or deliberately slow safety checks, and the impact such conduct (or the threat of such conduct) would have on the attitude of a customer to using Boral as a concrete supplier. 140 I now return to the Trades Hall meetings, with those considerations in mind, as well as the context in which these meetings occurred. 141 The fact that some shop stewards could not recall any communication of a Ban Against Boral, does not take away from the weight of the evidence that a communication (at some time) occurred. I accept the submissions of the ACCC and the evidence relied upon which in my view demonstrates that a communication occurred. 142 Specifically, I find that there was a communication made by the executives of the CFMEU at the March meeting intended by the CFMEU to be followed by shop stewards present at that meeting (and any other shop steward who became aware of the communication) that the shop stewards needed to stop Boral trucks from going on site and supplying concrete. This would include the conduct of hindering by the conduct of slow safety checks or the threat of such conduct being communicated to a Boral customer. I am not satisfied, having regard to the degree of proof required in this penalty proceeding, that any such communication was made at the February meeting. The evidence on this aspect is unclear. Often the questioning of witnesses did not differentiate between the two meetings. The minutes of the February meeting do not go far enough to prove the instruction as pleaded. In my view, the minutes of the March meeting, combined with the evidence of Mr Scott and Mr Thomas and the circumstances existing at the time, do indicate that the March meeting was when the instruction was given. Of course, the events of the February meeting are nevertheless relevant to help inform what occurred at the March meeting itself. 143 The ACCC also submitted that the communication was an "instruction" to shop stewards to implement the Ban Against Boral. Further, it contended there was sufficient evidence to demonstrate that shop stewards "expected and understood" that they would have to implement such a ban. In this respect, the ACCC made four points. 144 First, the ACCC contended that contextual statements in the minutes made it clear that the communications about a Boral ban constituted an instruction. They relied upon the statement of a union official recorded in the March meeting minutes that: our "code" is real simple – do job or don't be a delegate. 145 In the absence of any witness from the CFMEU, the ACCC submitted that the Court should infer this was in reference to earlier statements in the minutes that "Boral trucks – need to be inducted and pass plant assessments. … Need to stop Boral going on site!" 146 Secondly, the ACCC relied on the specific evidence of shop stewards Mr Scott and Mr Thomas. Mr Scott gave evidence that he received instructions from a senior CFMEU official at a shop stewards meeting in early 2013 that Boral was not to supply concrete on building sites. Mr Scott gave evidence that he took that instruction seriously and considered, as a CFMEU shop steward, that he did not have any choice but to implement that instruction. Mr Thomas's evidence was that, in 2013, it was his practice to go to most shop stewards meetings, and he gave evidence that Boral had been mentioned at meetings in early 2013. Shop Steward Mr Thomas accepted that he knew that the CFMEU wanted to stop Boral going on site during early 2013, although he was unsure as to where he got this knowledge from. He accepted that, in either February or March 2013, the CFMEU distributed a checklist and delegates were expected to use those checklists to check Boral trucks. 147 Thirdly, the ACCC contended the statements of various shop stewards on site provided evidence that a statement such as "Need to stop Boral going on site!" at a shop stewards meeting would be put into action by those attending shop stewards. For example: Shop steward Mr Rodney Travers agreed that his role included implementing any instructions of the CFMEU on the building site he is working on and attending delegate meetings and reporting back to the members on site. He also gave evidence that if, at a shop stewards meeting, and CFMEU officials give an instruction to shop stewards relating to a safety issue, he understood that he should follow that instruction. Shop steward Mr David Lythgo accepted that the union expected him to attend meetings and enforce union policies and that it was possible that the CFMEU could remove him from his position as a shop steward if it was dissatisfied with his performance. Shop steward Mr Scott agreed that, as a shop steward, he must attend delegates meetings and report back to members on site, apply CFMEU policies and that he should encourage activist development amongst the members on site. Shop steward Mr Thomas agreed that when the CFMEU asks the shop stewards or delegates to do things at the shop stewards meetings, it is incumbent upon them to implement those instructions or directions back on site (transcript, pp 698-9). He accepted that a delegate could "potentially" be removed from that role if he fails to implement those instructions or directions or fails to meet the obligations expected of him by the CFMEU. Shop steward Mr Barry Kemp agreed that if he attends a shop stewards meeting and the CFMEU raises concerns of an industrial nature, it is expected that he will attempt to enforce that on a building site for which he was the shop steward. He also agreed that he would inform the members and take action to ensure that the CFMEU's interests are being protected on site. Shop steward Mr Harisiou agreed that his responsibilities as a shop steward include representing the CFMEU on site, attending delegates meetings, and reporting issues back to members on site. He also gave evidence that if an instruction or directive is given at a shop stewards meeting, he would implement that policy if the issue exists on his site. 148 The above three categories of evidence not only relate to the individual sites and specific shop stewards, but is admissible evidence as to the nature of the communication (as an instruction). It is also admissible to show the objective nature of the instruction, and the understanding of shop stewards generally of the communication as an instruction. 149 Fourthly, the ACCC sought to rely on the evidence of the conduct and statements of the shop stewards on site to prove the existence of the CFMEU's "instruction". To the extent that this involves impermissible coincidence reasoning by cross-referencing site by site, such evidence cannot be relied upon for the purpose of proving the "instruction" or to show that the shop stewards acted in concert with the CFMEU. Nevertheless, evidence of the relevant shop steward's conduct and statements on the specific site would be able to be relied upon by the ACCC, in relation to each site and the individual contravention relating to that site. 150 On the admissible evidence (without the need to employ coincidence reasoning), I find that the Ban Against Boral was intended by the CFMEU to be an instruction to shop stewards – in the sense that it was expected by the CFMEU that the Ban Against Boral would be implemented to the extent possible by each shop steward at the relevant construction site until further notice. The CFMEU regarded each shop steward as having a responsibility to implement the Ban Against Boral. 151 I also find that communications from the CFMEU to shop stewards directing a certain course of action were received and accepted by shop stewards as instructions at the March meeting that they were required to implement. In this way, there was a meeting of minds by each relevant shop steward with the CFMEU. The shop stewards regarded themselves as under a duty to conduct themselves according to the instruction given at the March meeting. 152 This is supported by the 'Code of Conduct for Union Delegates' (Exhibit A9) which sets out the "rights and responsibilities of Delegates" and states, in relevant part, that "Delegates must apply Union policies (e.g RDO's, 56 hour maximum, etc)" and that "Delegates shall, to the best of their ability, represent the Union on their particular site". Although not all shop stewards that were shown this document recalled seeing it previously, they nonetheless agreed that they abide by its substance (see transcript, pp 501, 588, 614, 651, 698, 743-744). 153 More generally though, the understanding that shop stewards are required to implement CFMEU policies and instructions was supported by the evidence referred to by the ACCC. 154 This is not a finding that a shop steward did in fact implement the instruction, only that he understood that he was being instructed to implement the Ban Against Boral. I also find that each shop steward who attended the March meeting understood that the industrial dispute was ongoing, action in the nature of the Ban Against Boral was required to implement the policy and direction of the CFMEU, and the mechanism to implement the Ban Against Boral was the carrying out of a threat communicated to customers of Boral that prolonged safety checks to prevent Boral trucks coming on site would be conducted. To the extent any shop steward gave evidence to the contrary, I do not accept it; such evidence is contrary to the minutes and objective circumstances. I also observe that in many instances where a shop steward spoke in evidence of the Ban Against Boral, they were responding not to the questions about the threat, but whether trucks were actually turned away. As the evidence showed, no truck was turned away by a shop steward on any site. Therefore, the denials of the shop stewards relating to the Ban Against Boral did not really address the relevant issue of whether there was the implementation of the threat. 155 Nevertheless, and this will be addressed when I look at each site individually, the question remains whether particular shop stewards in fact implemented the Ban Against Boral acting in concert with the CFMEU. This is a different issue, the answer to which will depend upon the evidence adduced in relation to each individual site. Conduct allegations 156 Before commencing a site-by-site analysis, it is useful to consider the narrative proposed by the CFMEU in relation to Oceania (a subcontractor involved on multiple sites, including those at Lilydale, Richmond, Tarneit, Notting Hill, Officer and Williams Landing) and its use of Boral as a concrete supplier. The CFMEU submitted that it is open to the Court to find that by early 2013, Oceania needed little encouragement to find a reason to try an alternative concrete supplier to Boral. By the time Mr Mark Milano (a director of Oceania) became aware of "issues" relating to Boral at more than one of his jobs, Oceania's actions are best summarised as "jumping" of its own accord rather than "being pushed by the conduct of CFMEU." 157 In particular, the CFMEU relied on evidence that Mr Mark Milano had developed concerns about using Boral including: Boral's central ordering system was not smooth as it had been in the past; He was wondering whether Oceania could get a better price; He was concerned about a price increase letter he had received from Boral; and He felt Oceania was not getting the level of service from Boral that it deserved. 158 The CFMEU contended that Mr Mark Milano was a decisive business man who had firm ideas about what was best commercially for Oceania. They submitted that this fact should be taken into account when determining precisely why Oceania may have changed from Boral on relevant sites (in contrast to the ACCC's claim that Oceania changed because of the effect of the alleged Ban Against Boral). 159 I do not accept that even if Mr Mark Milano had the concerns he mentioned in evidence, this means that a cause of his trying to find an alternative was not to be attributed to the Ban Against Boral. Mr Mark Milano gave evidence that an issue for him was that if he used Boral he was "asking for trouble", and this was clearly an element in his choice of supplier. Whilst he did not experience delays even when Boral trucks were used, nor were any Boral trucks turned away, he was clearly concerned over the threat of the Ban Against Boral. 160 I consider that Mr Mark Milano was sufficiently motivated to not use Boral because of the Ban Against Boral. He was wary of the ongoing dispute, and its impact on him. I am satisfied that the Ban Against Boral was a cause of choosing alternative suppliers of concrete. Mr Mark Milano may have had other considerations that were relevant to his decision in this respect, but the actual decision to change supplier was caused in the end by his not wanting to be impacted by the Ban Against Boral. 161 It is also useful at this stage to consider the question of loss and damage to Boral, and whether it was substantial. Undoubtedly, although to different degrees in respect of each site, the amount of cement not able to be supplied by Boral did not involve (as it turned out) a large loss in itself. 162 However, the Ban Against Boral was not just intended by the CFMEU or the individual shop stewards to be implemented only at one site. It was intended to be implemented across Metropolitan Melbourne, as the shop stewards appreciated and were informed by the instruction given at the March meeting. The whole purpose of the Ban against Boral was to cause a substantial loss to Boral, if not site by site, but more importantly by deterring customers (existing or potential) from using Boral in Metropolitan Melbourne. 163 No evidence was led directly as to the extent Boral would or did lose market share, or to seek to quantify in monetary terms this loss; but, this is not required. There is evidence as to the nature of Boral's business, the loss of profit by reference to the lost volumes of concrete supplied, and the general negative impact on its business. There is also evidence that customers, because of the Ban against Boral, did not want to be associated with Boral for fear of adverse reaction from the CFMEU. The Melbourne building industry is a community which is relatively small, and there is evidence that over a period of time the Ban Against Boral became publicly known. 164 Whilst these matters are factual matters for this Court to determine, the position is similar to that described in BWIU at p 140: As is readily apparent from the evidence, the Melbourne building industry is relatively closeknit, on both the union and the employer sides. Given the attitude of the building unions to Troubleshooters, a successful ban on Troubleshooters men at the London Tavern site would have been likely to encourage the imposition of bans at other sites. A successful ban at London Tavern would also have been likely to deter other clients, and potential clients, from maintaining or commencing a relationship with Troubleshooters, possibly leading to the ultimate collapse of Troubleshooters' business. 165 I find that a purpose of the conduct engaged in by the CFMEU and each relevant shop steward was to cause substantial loss and damage, and that conduct was likely to have the effect of causing substantial loss and damage to the business of Boral. To the extent that any shop steward denied this purpose, I do not accept that evidence. The overall strategy of the CFMEU and the relevant shop steward, objectively assessed, was clear by other evidence considered in the overall context. 166 It seems to me, upon the conduct being undertaken, that the CFMEU, the shop stewards, and Mr MacDonald (where involved) would have wanted in the course of the ongoing dispute (or "fight") to inflict substantial loss and damage to Boral's business, and if the Ban Against Boral was successful, would likely have so achieved that purpose. After all, the call of the CFMEU at the March meeting was not just to stop Boral trucks from going on one site, and it was an ongoing fight which the CFMEU wanted to win directed to Boral's business across various sites in Metropolitan Melbourne. 167 With these considerations in mind, and on the basis of the admitted evidence and the above findings, I now turn to consider each site. It is important to recall that one of my findings is that the Ban Against Boral was (first) made at the March meeting (and not before), so implementation could only occur thereafter. It is also to be kept in mind that no Boral truck was in fact turned away or delayed by the misuse of a checklist to delay delivery of concrete. In this regard, the instruction of the CFMEU at the March meeting to stop Boral trucks by the use of the checklists was not in literal terms implemented by the shop stewards. The only basis of the allegation is that of threatening the misuse of the checklists. Deer Park 168 The Deer Park site was a construction site at Radnor Drive in Deer Park that involved the construction of a data centre. The head contractor was FDC Construction and Fitout Pty Ltd ('FDC'). Anglo Italian Holdings Pty Ltd ('Anglo Italian') was subcontracted to do the grounds slabs, suspended floors and roadways, and they commenced work on the site sometime around February 2012 to mid-2012. Anglo Italian used Boral as a concrete supplier for the job. The shop steward for this site was Mr Travers, and he gave evidence on behalf of the CFMEU. The ACCC called Mr Michael Newitt (Anglo Italian's site supervisor for the Deer Park site) and Mr Brett Young (the general manager for Anglo Italian Concrete Pty Ltd) to give evidence in relation to this site. The ACCC's case 169 The ACCC's case was that Anglo Italian was using Boral as its concrete supplier at the start of the project at the Deer Park site. This was said to be because Boral was able to supply a special type of concrete (Envirocrete). The ACCC contended that, as a consequence of the conduct of shop steward Mr Travers, Anglo Italian instead decided to acquire concrete from Hanson at the Deer Park site from 15 February 2013. The volume of concrete then supplied by Hanson was said to be at least 1435.0m3. 170 The impugned conduct of Mr Travers was him allegedly approaching Mr Newitt and asking if Anglo Italian could use another concrete supplier (that is, other than Boral). Mr Travers allegedly stated that the problem with Boral was coming from "his office", which Mr Newitt understood to be a reference to the CFMEU. 171 Mr Newitt relayed this conversation to Mr Young, who was unwilling to take the risk that "a break in the trucks would cost the whole actual slab" (transcript, p 86). Anglo Italian changed its supplier for the Deer Park site from Boral to Hanson. 172 Later, in response to further questioning from Mr Newitt, Mr Travers conferred with the CFMEU and told Mr Newitt that using Boral should no longer be a problem. Anglo Italian then used Boral for about a month. However, Mr Travers recanted and told Mr Newitt there still might be a problem using Boral and that Anglo Italian should go back to using Hanson. Anglo Italian then changed back to using Hanson. 173 Overall, the ACCC contended that Anglo Italian used Hanson instead of Boral from 15 February 2013 to 5 March 2013 after the first request from Mr Travers, and from 26 April 2013 until 27 March 2015 (at which point concrete was no longer needed for the job) after the second request from Mr Travers. The CFMEU's case 174 The CFMEU's responded by pointing out that the records show that Anglo Italian was using Hanson for concrete as early as 3 January 2013. The CFMEU submitted that this contradicted the ACCC's claims that Anglo Italian was pressured into switching from Boral to Hanson on the basis of requests from Mr Travers. Rather, the CFMEU claimed that any such switch was likely a result of other plausible commercial reasons. 175 The CFMEU also pointed out that Boral supplied concrete to Anglo Italian at the site between 6 March 2013 and 24 April 2013. The CFMEU submitted that this contradicted the ACCC's claims that Boral was prevented from supplying concrete during this time. 176 The CFMEU also claimed that the ACCC offered no evidence to suggest that the CFMEU communicated the Ban Against Boral instruction to Mr Travers. Mr Travers himself was adamant that he did not leave a Trades Hall meeting in early 2013 with the understanding that he was to implement a ban against Boral's supply of concrete. The CFMEU additionally referred to Mr Travers' denials that he ever requested that Boral should not be the concrete supplier for the job. Further, the CFMEU noted the contradictory nature of the ACCC's case, namely that at a point in time when the Ban Against Boral was alleged to be in place, Mr Travers allegedly conferred with the CFMEU about Boral and was told that using Boral should no longer be a problem. Finally, the CFMEU also pointed to deficiencies in the quality of the evidence given by Mr Newitt and Mr Young. Consideration 177 Despite Mr Travers' failure to recall certain matters relating to the Trades Hall meetings and whether an instruction was given, I have already found that Mr Travers attended the February and March meetings (his practice was to never miss them). I have also already made findings as to the understanding of shop stewards who attended the March meeting. However, the difficulty with the evidence relied upon by the ACCC is that it does not show that the relevant shop steward (in this case, Mr Travers) either acted on the instruction made by the CFMEU or implemented the Ban Against Boral. 178 As I have already found, I am not satisfied that the Ban Against Boral was in fact communicated to the relevant shop stewards until the March meeting held on 14 March 2013. On that basis, it cannot be concluded that Mr Travers implemented the Ban Against Boral as pleaded by the ACCC in paragraph 75.2 of the Amended Statement of Claim, which relates to a conversation in February 2013. The only action of Mr Travers said to constitute the action he took to implement the Ban Against Boral pleaded to have occurred after 14 March 2013 is to be found in paragraph 76 of the Amended Statement of Claim, namely that: In or About April 2013: 76.1 Shop Steward Travers and Newitt were at the Deer Park Site; 76.2 Shop Steward Travers said to Newitt words to the effect: 76.2.1 Anglo Italian "shouldn't have been using Boral"; and 76.2.2 the CMEU "was still not happy" for Anglo Italian to use Boral. 179 As to this allegation, I make the following observations and findings. 180 Boral supplied Anglo Italian with 1,605.6m3 of concrete over a seven week period between 6 March 2013 and 24 April 2013. During this period, concrete was delivered on 27 separate days. At an average of 6.5m3 per load, this would have involved some 250 trucks. 181 At no time during this seven week period, or at any other time, was the supply of concrete to the site ever actually hindered or prevented in the sense that Boral trucks were delayed or turned back. 182 The ACCC relies upon a particular conversation having taken place in April 2013 in which Mr Travers allegedly recanted on an earlier conversation and indicated there might still be a problem using Boral. I cannot be satisfied on the evidence that this conversation occurred or of the contents of the conversation. Mr Travers denies the conversation and the alleged substance of the conversation. I accept the denial, and consider Mr Travers in this regard as giving credible testimony. Otherwise the evidence is unclear, particularly when Mr Newitt is now not sure himself of the conversation and its timing. The evidence of Mr Newitt was in the following terms: COUNSEL: Okay. And what happened at the end of that month M. NEWITT: As in why we stopped – Herb just come up to me and said that he believes there's still an issue with Boral, but he wasn't sure, but he had heard from his office that – that if Anglo could use someone else. COUNSEL: So Boral supplied for a month. Did Mr Travers approach him on site? M. NEWITT: Yes. COUNSEL: Do you know what caused him to come to you and talk to you about this? M. NEWITT: I – I gather he heard from someone at CFMEU. COUNSEL: But he didn't explain why he was approaching you now about another concern about Boral? M. NEWITT: No. COUNSEL: All right. So what did he say to you when he approached you on that second occasion about using Boral? M. NEWITT: He just said that he had heard that there still may be a 30 problem and whether we could still go back to Hansen and - - - COUNSEL: All right. So he asked you if you can go back to Hansen? M. NEWITT: Yes. I believe so. Yes. I can't quite recall. COUNSEL: Okay. And as a result of that discussion, did you raise it with anybody within the company? M. NEWITT: I rang Brett Young. COUNSEL: And what was the decision made about whether you go back to Hansen or stay with Boral? M. NEWITT: I think that would have been Brett just making a business decision. COUNSEL: What was the decision? M. NEWITT: To – just to go back to Hansen. COUNSEL: Did that cause any delay on site? M. NEWITT: No. 183 Mr Young did give evidence that he had been told by Mr Newitt that the CFMEU would no longer let Boral trucks on site. However, this does not "corroborate" Mr Newitt's evidence as given in the Court, particularly when the evidence is in the terms given as set out above. The evidence of Mr Newitt (even if accepted) does not indicate that Mr Travers followed the instruction by the CFMEU or implemented (by threatening delay) the Ban Against Boral. To my mind, the evidence suggests Mr Travers carried on with his normal responsibilities at the site. 184 Therefore, I am not satisfied on the evidence Mr Travers said the words attributed to him in the course of the above conversation. The only occasion pleaded after the March meeting when the implementation could have occurred was in April 2013 and in the course of the this conversation. Accordingly, I cannot conclude that paragraph 77 of the Amended Statement of Claim is proved, namely that Mr Travers undertook the actions described therein to implement the Ban Against Boral. Hawthorn 185 The Hawthorn site was a construction site in Hawthorn that involved the construction of an aquatic centre. The head contractor was ADCO Constructions Pty Ltd ('ADCO'). S & A Paving Pty Ltd ('S & A Paving') was subcontracted to do the concreting work (such as the footings, slabs around columns, suspended slabs, footpaths and other external works) and they commenced work on the site sometime around mid-2012. S & A Paving used Boral (Alsafe) as a concrete supplier for the job. The shop steward for this site was Mr Thomas, and he gave evidence on behalf of the CFMEU. The ACCC called Mr Santi Mangano to give evidence in relation to this site. The ACCC's case 186 The ACCC's case was that approximately half-way through the Hawthorn site, S & A Paving swapped its concrete supplier. The ACCC submitted that the conduct of shop steward Mr Thomas on site caused S & A Paving to decide to acquire concrete from Holcim at the Hawthorn site from 8 April 2013. The volume of concrete not supplied by Alsafe at the Hawthorn site was at least 72m3, as between 8 April 2013 and 14 June 2013, Holcim supplied 72m3 of concrete to S & A Paving at the Hawthorn site. 187 The impugned conduct of Mr Thomas occurred about three quarters of the way through the job. Mr Mangano gave evidence that Mr Thomas asked him "Who you using for this big pour?" and, in response, Mr Mangano said "Alsafe". In reply, Mr Thomas said, "So we've got to check the trucks". Mr Mangano gave evidence that Mr Thomas did not give any reason as to why he needed to check the trucks and Mr Mangano did not ask him why (transcript, p 230). 188 Previously, when the job first commenced, Mr Thomas was also said to have asked who was supplying the concrete. At that time it was Holcim. In contrast to his later reaction to Alsafe, Mr Thomas was alleged to have reacted to this information by merely saying "That's all right" (transcript, pp 228-9). 189 As a result of his conversation with Mr Thomas about Alsafe, the ACCC alleged that Mr Mangano decided to change concrete supplier from Alsafe back to Holcim. Mr Mangano's evidence was that he made this decision because he did not want the risk of any delays or stoppages at the Hawthorn site. 190 The ACCC also pointed to the fact that, in his evidence, Mr Thomas accepted that he knew (in February or March 2013) that the CFMEU wanted to stop Boral going on site. The ACCC claimed it was likely that, after a meeting at Trades Hall, he told Mr Mangano that he needed to check all of the concrete trucks coming onto site. Mr Thomas gave further evidence that, if one were to implement the checklists strictly and go through each one carefully, it could cause a substantial delay. The CFMEU's case 191 The CFMEU submitted that, whilst Mr Thomas knew that the CFMEU wanted to stop Boral going on site, this did not prove that he had become aware of this because he received such an instruction at a Trades Hall meeting in early 2013. Mr Thomas himself did not recall hearing this at either of those Trades Hall meetings in February and March. There were also possible alternative sources of information. Mr Thomas also specifically denied implementing an instruction to delay Boral's delivery of concrete. 192 The CFMEU further submitted that there was nothing nefarious about Mr Thomas's conversation with Mr Mangano about checking the Alsafe trucks. Mr Thomas said it was part of his job to talk to everyone on the site and one of the conversations he might have included asking who the supplier was. Mr Thomas explained that he might ask who the supplier was because "[a]ll suppliers are not equal" and delays in supply cause problems for the placement of concrete and for the workforce who then have to work extra hours (transcript, p 690-1). 193 On this basis, the CFMEU submitted that Mr Mangano made a decision to revert to Holcim in the absence of Mr Thomas either saying that he would delay trucks and in the absence of Mr Thomas in fact delaying any trucks. They contended that Mr Mangano's decision-making was at least in part based on 'rumours' he had heard concerning issues between Boral and the union. They further contended that, although it was likely that Mr Mangano decided to change suppliers to avoid any risk of delay, the risk to which he was responding was not one which had in fact emerged at Hawthorn, where the only thing Mr Thomas had said was that he intended to check trucks. The CFMEU also submitted that when Mr Thomas did in fact check trucks, his method for doing so had no impact on supply of concrete (for example, no trucks were turned away for safety reasons). 194 The CFMEU also elaborated on Mr Thomas's evidence regarding delay that could be caused by a strict implementation of the safety checklists. The CFMEU pointed to Mr Thomas's further evidence that he would use his experience on site to exercise discretion and common sense when undertaking safety checks. 195 On account of the above, the CFMEU submitted that Mr Thomas did not implement any Ban Against Boral as alleged by the ACCC. The CFMEU also submitted that the volume of concrete involved in relation to the Hawthorn site was de minimis, such that any loss by Boral would have had no or minimal impact on the business of Boral. Consideration 196 I accept Mr Thomas' evidence as to what he did on site: he was a careful and considered witness. However, Mr Thomas did not have a good memory of what was said at the Trades Hall meetings or whether he attended the March meeting at all, despite accepting that he attended most meetings. He could recall Boral being mentioned at a shop stewards meeting, although he could not say which one and could no longer recall the specifics. He said no instructions were given about dealing with Boral on construction sites. He had no recollection of any instruction being given to stop Boral delivering concrete or to delay pours being done by Boral. 197 Mr Thomas gleaned an understanding at some time, from an unknown source, that the CFMEU wanted to stop Boral going on site. Mr Thomas denied implementing an instruction to delay Boral delivering concrete to construction sites. 198 Despite this evidence, I have already made findings in relation to the March meeting and the attendance of shop stewards, including Mr Thomas. The remaining issue in relation to the participation of Mr Thomas relates to his implementation of the Ban Against Boral. 199 Turning to the impugned conduct of Mr Thomas, he agreed it was likely that after a meeting at Trades Hall he told Mr Mangano that he would need to check all of the concrete trucks coming onto site. Later Mr Thomas agreed that when he spoke to Mr Mangano he said "if you're using Alsafe, I'm going to have to check the trucks" (transcript, p 711). Mr Thomas accepted that if someone were to implement the checklists strictly, this could cause a delay. 200 It is to be recalled that I have found that the mechanism to implement the Ban Against Boral included a threat communicated to customers of Boral that there would be carried out prolonged safety checks. It is not in dispute in relation to the Hawthorn site that: (1) Mr Mangano sought to switch suppliers to Alsafe; (2) Mr Thomas was aware that the CFMEU did not wish Boral (of whom Alsafe is a subsidiary) on construction sites; (3) In response to Mr Mangano's desire to switch to Alsafe, Mr Thomas indicated "if you're using Alsafe, I'm going to have to check the trucks"; and (4) Mr Mangano anticipated delays as a result of such checks, and decided against engaging Alsafe. 201 I do not doubt that the actual safety checks undertaken by Mr Thomas were for a legitimate purpose. However, Mr Thomas made a representation concerning checks in respect of Alsafe in particular, and did so whilst aware of the Ban Against Boral given to him at the March meeting as an instruction and treated by him as an instruction. The consequence of this representation was that Alsafe was not used as a supplier. On the basis that Mr Thomas did attend the March meeting, and my previous findings of the nature of the communication made by the CFMEU and Mr Thomas' understanding of it as an instruction, his particular reference to "using Alsafe" and the need to "check the trucks" demonstrates an implementation of the Ban Against Boral. This is the threat of using safety checks to hinder the supply of concrete by Boral. 202 The following aspects of evidence do not detract from this conclusion. It can be accepted that Mr Mangano did not know what sort of checking would be done by Mr Thomas and did not ask. Mr Mangano agreed that he was also aware of a rumour that Boral had a problem with the CFMEU. However, he was unwilling to risk any delay on a concrete pour, and decided to go back to Holcim. 203 It was specifically put to Mr Thomas in cross examination that the purpose of the checklists was that the union wanted him to use them as a way to check trucks, to have an apparently legitimate purpose for stopping the trucks coming onto the sites. Mr Thomas said "not to my knowledge" (transcription, p 710). Indeed, I accept that Mr Thomas' actual conduct on site was consistent only with him using the checklists for legitimate safety purpose and not as a ruse to stop or delay Boral trucks coming on site. 204 Mr Thomas did not turn away any trucks from the Hawthorn site, even those in relation to which he placed a cross on a checklist. Mr Thomas said that the concrete has to go in at all costs. He explained that "one hiccup" in supply affects the workers, who are then not happy if they have to work back longer hours. 205 I also accept that Mr Thomas used his experience on site to exercise discretion and common sense when undertaking safety checks. For example, Mr Thomas explained that if he came across a truck which had a cracked windscreen he would ask the driver to get it fixed and to not come back until it was fixed. But their load of concrete would be discharged first. By way of a further example, Mr Thomas was asked what he would do if he came across a truck with no reverse beeper. He responded that he would tell the driver to get it fixed, however in order to get the vehicle onto the site he would put a spotter in place. 206 However, none of this evidence detracts from the threat actually communicated by Mr Thomas that if Alsafe was being used, the use of safety checks would effectively hinder supply by Boral. This was the implementation of the Ban Against Boral. It was done in concert with the CFMEU for the impugned purpose. 207 I am satisfied that Mr Thomas undertook the actions as pleaded in paragraph 142 of the Amended Statement of Claim to implement the Ban Against Boral as alleged by the ACCC in paragraph 143 of the Amended Statement of Claim. Further, I reject the argument of the CMFEU that the volume of concrete actually involved in relation to the Hawthorn site mitigates any contravention of s 45D(1). Rather, as I have indicated, harm to a business in respect of s 45D(1) does not just include the direct impact on the site, but includes also the impact globally on the "business" of Boral, including its reputation. In light of my other findings, the CFMEU contravened s 45D(1) of the CCA as alleged in paragraph 148 of the Amended Statement of Claim. Lilydale 208 The Lilydale site was a construction site in Lilydale that involved the construction of a shopping centre. The head contractor was Hacer Group Pty Ltd ('Hacer'). Oceania Universal Paving Australia Pty Ltd ('Oceania') was subcontracted to do the footings, excavation, concrete and reinforcement works, and commenced in early to mid-2012 and continued to late 2013. Oceania used Boral as a concrete supplier for the job. The shop steward for this site was Mr Pettifer, although he was not called to give evidence. The ACCC called Mr Mark Milano and Mr Humphrey to give evidence in relation to this site. The ACCC's case 209 The ACCC's case was that Boral had been supplying Oceania with concrete at the Lilydale site from the start of the project (transcript, p 143, 197), but that the conduct of shop steward Mr Pettifer resulted in Oceania deciding to acquire concrete from other suppliers. Oceania allegedly swapped to Hanson (arranged by Boral) at the Lilydale site for one week from 20 March 2013 and to Holcim at the Lilydale site from 2 May 2013. The volume of concrete not supplied by Boral at the Lilydale site was said to be at least 337.4m3, as between 20 March 2013 and 27 March 2013, Hanson supplied 65.8m3 of concrete (though the orders were placed through Boral), and between 2 May 2013 and 27 July 2013, Holcim supplied 271.6m3 of concrete. 210 The impugned conduct of Mr Pettifer was that of his statement to Mr Humphrey during the project that "You won't be using Boral here any longer" (transcript, p 145). Mr Humphrey then allegedly contacted Mr Mark Milano, who advised Mr Lane of Boral of the situation. Mr Lane was said to have arranged for Hanson to supply concrete to the site instead, before Oceania changed again a week later to Holcim. 211 The ACCC also noted that Boral was used once more at the very end of the project for some exposed aggregate concrete, as Boral was the only practical option in terms of obtaining that particular concrete. This was said to have occurred following discussions with Hacer representatives. The CFMEU's case 212 The CFMEU submitted that the ACCC failed to call Mr Pettifer as a witness in respect of this site. As a consequence, they contended that there was no evidence that Mr Pettifer received an instruction to implement a Ban Against Boral, nor to suggest that he implemented such a ban. The CFMEU submitted that there was no evidence at all of Mr Pettifer preventing or hindering supply by Boral to the Lilydale site. This was said to be plainly evident from the fact that Boral was used again later at the end of the project without issue from Mr Pettifer. The CFMEU invited the Court to find that Mr Mark Milano made his own decision to change suppliers from Boral to avoid other difficulties, and noted that he had no trouble swapping back when needed. Consideration 213 There is no evidence that any instruction to implement a Ban Against Boral was given by the CFMEU to Mr Pettifer as pleaded by the ACCC. There is no proof that he attended the February or (more relevantly) the March meeting. I do not accept I should infer this as submitted by the ACCC. There is evidence that shop stewards were requested to attend meetings, but this is not probative as to the actual attendance of Mr Pettifer. The evidence relating to the role of shop stewards, and what was expected of them by the CFMEU, is also not probative of actual attendance at a particular meeting. I have already indicated that a failure to call a witness cannot be used to fill a gap in the evidence – here the gap is to prove Mr Pettifer implemented the Ban Against Boral, which was received as an instruction at the March meeting. The timing and substance of the conversation between Mr Humphrey and Mr Pettifer (to which I will now come) is again not probative of the intermediate issue to be decided, namely, attendance at a particular meeting. 214 Mr Humphrey attested to two conversations with Mr Pettifer. The first one, he said was "probably midway" through the Lilydale project. Mr Humphrey said that Mr Pettifer approached him and said "I don't want these grubby trucks" (transcript, p 144). This evidence was adduced in support of the ACCC's allegation at paragraph 163 of the Amended Statement of Claim that Mr Pettifer said "you're not using Boral here" and "they're a grubby company". 215 However, this conversation took place in late 2012, and related to Boral's use of trucks with Grocon logos. The company Mr Pettifer described as "grubby" was Grocon. Mr Humphrey responded by ringing Boral and asking them not to send Grocon badged trucks. Thereafter, there were no difficulties with Boral's supply, so long as Grocon trucks were not used. 216 Mr Humphrey said that later, perhaps two months later, he had a second conversation with Mr Pettifer in which Mr Pettifer said "you won't be using Boral any longer" and that this was the direction he had been given by the union (transcript, pp 145-6). Mr Humphrey did not say in chief, but asserted in cross examination, that at this time, a mini mix from Boral used by plumbers "had been turned away" (transcript pp 162-3). 217 There is no other evidence of a truck being turned away from Lilydale. No Oceania witnesses attested to this. The ACCC does not allege that a truck was turned away from the Lilydale site and the ACCC does not rely in its closing submissions on this assertion by Mr Humphrey. I do not find any truck was turned away from the Lilydale site. 218 Following his interaction with Mr Pettifer, Mr Humphrey told Mr Mark Milano of this conversation with Mr Pettifer. Mr Milano called Mr Lane (at Boral) who said he would purchase through Hanson or Holcim. Later, Oceania made arrangements for its concrete to be ordered through Boral, but delivered by Hanson trucks. This arrangement was in place for a week or so, and then Oceania commenced to order direct from Holcim. 219 According to Mr Mark Milano, there was a particular need at this site to to use exposed aggregate supplied by Boral. Mr Mark Milano contacted the Hacer representative Oliver Smith who said "leave it with me." Smith later told Mr Mark Milano: "you will be using Boral for the exposed aggregate". Mr Mark Milano agreed that the Hacer representative would "make sure" we were "okay to use Boral". Mr Mark Milano did not know how Mr Smith would achieve this, and did not ask him. Oceania used Boral for the exposed aggregate. 220 The pour for the exposed aggregate took place in late 2013 and required three pours, over three days. The Oceania witnesses confirmed that Mr Pettifer was aware of the exposed aggregate pour done by Boral, and there was no interference with the delivery of this concrete. Several Boral badged trucks were used, and there was no problem over those 3 days with trucks coming and going. Mr Humphrey did not see Mr Pettifer or the shop steward who replaced him conduct checks of trucks at the Lilydale site. 221 There is no evidence of Mr Pettifer actually preventing or hindering supply by Boral to the Lilydale site by the use of undertaking safety checks. 222 Nevertheless, the question remains whether the Court can be satisfied that Mr Pettifer did say words to the effect "you're not using Boral here" as alleged in paragraph 163 of the Amended Statement of Claim. On this basis of Mr Humphrey's evidence (which I accept) I am satisfied these words were spoken. 223 However, I cannot be satisfied that the allegation contained in paragraph 164 of the Amended Statement of Claim is proved, to show Mr Pettifer undertook that action to implement the Ban Against Boral. There is no evidence to show Mr Pettier knew of the Ban Against Boral as pleaded and found by me to be communicated at the March meeting. Mr Pettifer has not been shown to have attended that March meeting. The words said to Mr Humphrey could have been sourced by Mr Pettifer elsewhere, and not by way of the instruction from the CFMEU as pleaded. 224 Further, unless it can be shown that Mr Pettifer had the community of purpose to implement the Ban Against Boral, as distinct from some other purpose which may have prompted his actions, then it will not have been shown that CFMEU acted in concert with Mr Pettifer as alleged in paragraph 165 of the Amended Statement of Claim. I am not satisfied, without it being shown by some reliable evidence, he was specifically aware of the Ban Against Boral from the March meeting. I should not assume by his words (as relayed by Mr Humphrey) that he was implementing the Ban Against Boral or was relevantly acting in concert with the CFMEU. Melbourne City 225 The Melbourne City site was a construction site on Elizabeth Street, Melbourne, that involved the construction of a nine-storey apartment building. The head contractor was Maxstra Constructions Pty Ltd ('Maxstra'). Kosta Concreting and Formwork Pty Ltd ('Kosta') was subcontracted to do the footings, excavation, concreting, formwork and reinforcement works, and commenced in late-2012 or early-2013. Kosta used Boral as a concrete supplier for the job. The shop steward for this site was Mr Vlahogiannis, although he was not called to give evidence. The ACCC called Mr Dudley to give evidence in relation to this site. The ACCC's case 226 The ACCC's case was that when Kosta started work at the Melbourne City site, it was using Boral as its preferred concrete supplier. However, as a result of conduct of shop steward Mr Vlahogiannis, Kosta decided to acquire concrete from Hy-Tec at the Melbourne City site from 22 March 2013. The volume of concrete not supplied by Boral was said to be at least 337.4m3, as between 22 March 2013 and 14 August 2013, Hy-Tec supplied 337.4m3 of concrete to Kosta at the Melbourne City site (court book, pp 3199-209 (exhibit A1)). 227 The impugned conduct of Mr Vlahogiannis was said to have occurred during conversations with Mr Dudley on site. One conversation was alleged to have taken place when Kosta had just finished the footings for the job, and Mr Dudley gave evidence that Mr Vlahogiannis said to him: "We're pretty much kicking off from here on, so you're not going to be using Boral" (transcript, p 47). In response, Mr Dudley said "You're a bunch of arseholes" and "This is going to cost us a lot of money" and Mr Vlahogiannis said "That's the way it is" and "the union is just around the corner" (transcript, p 47). Mr Dudley also gave evidence that Mr Vlahogiannis said "You can use Boral if you like, but we will make sure that it takes you all day to unload. I will get a safety team down here, and you won't – it will take you all day to unload a truck" (transcript, p 48). 228 Following this conversation, Mr Dudley was said to have visited Mr Mark Papan of the CFMEU at the CFMEU's office in Swanston Street, Melbourne, to find out what was going on between the CFMEU and Boral. Mr Dudley's evidence is that he said to Mr Papan "what are you guys doing? What's going on with Boral?" and Mr Papan said "Leave it alone" (transcript, p 48). Mr Dudley did not take the issue any further. 229 Following these conversations, Mr Dudley was said to have decided to change concrete suppliers from Boral to Hy-Tec because "it was not worth the hassle on a building site to – to hamper our progress building" (transcript, pp 48-9). 230 The ACCC contended that this evidence of Mr Dudley was corroborated by an email he sent to Mr Dalton of Boral on 15 April 2013, which stated: We are a Boral customer and are very happy with the service. Unfortunately with the way the Union plays their game, we are still left in a crappy position regardless of court orders or decisions. We have specifically been told by the Union Shop Stewards on two projects that we cannot use Boral. As angry as that makes me, we are left with no choice. If we use Boral, we will be unfairly targeted by the Union from then on. Winning a project, especially in the city, is often determined by a wink and a node by the powers that be. Its still illegal in Victoria to have compulsory Unionism but just try to get on a Union site without a ticket. It's a shitty system BUT its what we've got to put up with. … 231 The ACCC also submitted that, given Mr Vlahogiannis was not called by the CFMEU, the Court should infer that his evidence would not have assisted the CFMEU's case. The CFMEU's case 232 The CFMEU contended that Mr Vlahogiannis was a witness that the ACCC, not the CFMEU, ought to have called, as his evidence related to the existence and implementation of the alleged Ban Against Boral. As such, they argued that the Court should infer from the ACCC's failure to call the witness that his evidence would not have assisted their case. 233 The CFMEU also pointed out that there was no evidence of Mr Vlahogiannis having attended the February meeting, or that any direction about a Ban Against Boral was communicated to him at such a meeting. Nor was there any evidence of him having implemented any of the threats he was alleged to have made in relation to "safety" checks. Nor was there any evidence that he engaged in conduct for the purposes of causing substantial loss or damage to Boral, or that his conduct did or was likely to have such an effect (the total amount of concrete not supplied by Boral was only 337.4m3 at most). 234 Furthermore, the CFMEU submitted that the authority to change suppliers did not rest with Mr Dudley, but with Mr Kosta Efstratiou and Mr Sam Colaiacovo, who in fact made that decision to swap from Boral to Hy-Tec. The CFEMU thus claimed that the ACCC had not provided any evidence as to the influence that Mr Dudley had on that decision, and therefore the Court could not be satisfied to the requisite standard that the decision to switch suppliers was made as a consequence of conduct of Mr Vlahogiannis. 235 In relation to the evidence of the conversation between Mr Dudley and Mr Papan, the CFMEU contended that such evidence was inconclusive. There was no evidence as to Mr Papan's seniority or role within the CFMEU, and it was unclear how such evidence could be used to prove that Mr Vlahogiannis was acting in concert with the CFMEU in relation to a supposed ban. 236 Finally, the CFMEU contended that there was an unexplained 5 week delay between when (according to the ACCC) Mr Vlahogiannis understood he was to implement a ban against Boral (in mid-February 2013) and the time when he allegedly implemented it (just prior to 22 March 2013). This was said to undermine the narrative being pressed by the ACCC. Consideration 237 I should indicate that I do not draw any inference against the ACCC for not calling Mr Vlahogiannis. I do not regard him as a witness the ACCC would be expected to call. 238 The ACCC refers in its pleading to certain statements made by Mr Vlahogiannis "in or about February or March 2013". I accept that statements referred to in paragraph 132 of the Amended Statement of Claim contended by the ACCC to have been made by Mr Vlahogiannis were in fact made by him, but I cannot be satisfied if such occurred after or prior to 14 March 2013 and the March meeting. 239 I accept that the evidence given by Mr Dudley regarding Mr Vlahogiannis' ban-related representations show that Mr Vlahogiannis linked the proximity of the union to his warnings about using Boral, and also that he conveyed the CFMEU's instructed method, namely, delays through safety checks (he also referred to "our safety team", which Mr Dudley understood was a CFMEU team (transcript, p 48)). Therefore, there is at least some evidence that the CFMEU instruction may have been communicated by some method to Mr Vlahogiannis. However, the ACCC's case is that the instruction was given at the March meeting. 240 The most direct evidence of some communication by the CFMEU of the Ban Against Boral in this regard is as follows. Mr Dudley gave evidence that Vlahogiannis said "you're not going to be using Boral" and "the union is just around the corner" (transcript, p 47). Mr Dudley said that Mr Vlahogiannis also told him that if Boral was used "we will make sure it takes you all day to unload…" (transcript, p 48). 241 Mr Dudley also gave evidence that, following his conversation with Mr Vlahogiannis, he went to see Mr Papan at the CFMEU. 242 To the extent the ACCC relies on an email from Mr Dudley to Mr Dalton dated 15 April 2013, it cannot be used to implicate Mr Vlahogiannis. The email refers "two projects" on which Kosta had been told it could not use Boral. However, the email does not reveal any site at which the Ban Against Boral was imposed, and or the shop steward who imposed it, and no evidence was otherwise led in relation to this matter. 243 Further, I accept that the decision to change suppliers did not rest with Mr Dudley in any event. At the relevant time, Mr Efstratiou and Mr Colaiacovo, both of whom are still a part of Kosta's business, made the decisions as to which concrete supplier Kosta used in its business. 244 Mr Dudley confirmed that the decision to switch supply from Boral to Hy-Tec at this site was made by Mr Efstratiou and Mr Colaiacovo. No evidence was led from either Mr Efstratiou or Mr Colaiacovo as to their reasons for switching supply. In the absence of direct evidence that the conduct of Mr Vlahogiannis was the reason for which Mr Efstratiou and Mr Colaiacovo switched suppliers, I cannot be satisfied to the requisite standard that their decision was made as a consequence of conduct of Mr Vlahogiannis. 245 To the extent it is relevant, there is no evidence that Mr Vlahogiannis ever did implement the threat of conducting "all day" safety checks on trucks delivering concrete to the site. Mr Dudley agreed that prior to changing suppliers, he had not seen any Boral trucks being checked or turned away. It seems that Boral supplied concrete to the project – without any interference from Mr Vlahogiannis - from commencement of the job (in late 2012 or early 2013) through to shortly prior to 22 March 2013. 246 Be this as it may, the position in relation to Mr Vlahogiannis is the same as with Mr Pettifer. Unless it can be shown that Mr Vlahogiannis had the community of purpose to implement the Ban Against Boral, as distinct from some other purpose which may have prompted his actions, then it will not have been shown that CFMEU acted in concert with Mr Vlahogiannis as alleged in paragraph 134 of the Amended Statement of Claim. As with Mr Pettifer, I am not satisfied that Mr Vlahogiannis attended the March meeting. Whilst the conversation with Mr Dudley is some evidence that a CFMEU direction may have been communicated to Mr Vlahogiannis, this is not sufficient to prove Mr Vlahogiannis sufficiently knew of and accepted that instruction from the CFMEU as pleaded by the ACCC. 247 So whilst I am satisfied that the conduct contained in paragraph 132 of the Amended Statement of Claim is proved (although the precise timing is not demonstrated), I cannot conclude Mr Vlahogiannis implemented the Ban Against Boral as pleaded or was acting in concert with the CFMEU as pleaded. Port Melbourne 248 The Port Melbourne site was a construction site in Port Melbourne that involved the construction of the Tower 8 apartment tower. The head contractor was Mirvac, who had also contracted Australian Native Landscapes Pty Ltd ('ANL') to do the landscaping. Squadron Concrete Pty Ltd ('Squadron') was subcontracted to do the concreting and landscaping works, starting at around September 2012. Squadron used Boral (Alsafe) as a concrete supplier for the job. The shop steward for this site was Mr Lythgo, and he gave evidence on behalf of the CFMEU. The ACCC called Mr Fabrizio Ubaldi to give evidence in relation to this site. The ACCC's case 249 The ACCC's case was that Squadron's preferred concrete supplier was Alsafe, who provided concrete at the Port Melbourne site until nearly the end of the project (transcript, pp 174-5, 177). However, the ACCC claimed that the conduct of shop steward Mr Lythgo resulted in Squadron deciding to acquire concrete from Pronto at the Port Melbourne site on 15 and 16 February 2013. The volume of concrete not supplied by Alsafe was said to be at least 11.6m3, as between 15 February 2013 and 16 February 2013, Pronto supplied 11.6m3 of concrete to Squadron at the Port Melbourne site. 250 The impugned conduct of Mr Lythgo allegedly occurred in two conversations. In the first, Mr Lythgo allegedly told Mr Ubaldi that "there was a ban on using Boral on site" and that Alsafe and Boral "were one and the same". Mr Lythgo also allegedly stated that this "was a directive that had come from above", which Mr Ubaldi understood would have been from within the CFMEU (transcript, p 176-7). Mr Lythgo also allegedly told Mr Ubaldi that there was a risk that if he used Alsafe or Boral, the trucks may be turned away or not allowed on site. Mr Ubaldi thought this was "quite astonishing … quite unusual" (transcript, p 177). The ACCC contended that Squadron changed its concrete supplier within the next day or so to Pronto for two pours because of this conversation. 251 In the second conversation, Mr Ubaldi gave evidence that he approached Mr Lythgo and told him that Boral or Alsafe was needed for the very last pour so as to maintain the quality and consistency of that part of the project. Mr Lythgo allegedly replied by stating "you're aware of the situation. If you proceed, you proceed at your own – your own risk. If – if it happens and it goes smoothly, I don't know about it. Good luck to you, but you do – you are aware you proceed at your own risk" (transcript, p 178). Mr Ubaldi was then said to have reverted back to Alsafe for the last pour. The CFMEU's case 252 The CFMEU first submitted that the amount of concrete said to have been diverted from Boral was a mere 11.6m3 – an amount that, even if proven, was so insubstantial as to be de minimis. 253 The CFMEU contended that there was no evidence to suggest Mr Lythgo was at the February or March meetings, and he himself had no recollection of it, although it was his usual practice to attend such meetings. He denied having been told of the alleged Ban Against Boral. Mr Lythgo also gave evidence that he did not know Mr Ubaldi, nor did he interact with anyone in Squadron's management (which would have included Mr Ubaldi). He considered Mr Ubaldi's account of the alleged conversation to be "a bit far-fetched" (transcript, p 601), especially as Mr Lythgo claimed at the time to not even know that Alsafe was trading as part of the Boral brand. 254 The CFMEU also pointed to the vague nature of Mr Ubaldi's evidence of his conversations with Mr Lythgo, and contended that it was more likely that the issue of Boral came up through his conversations with his foreman Mr Angelo Sindoni. 255 Finally, the CFMEU contended that Mr Lythgo made no attempt to prevent or interfere with supply when Squadron switched back to Alsafe, and that this was inconsistent with the ACCC's claim that Mr Lythgo had been seeking to implement a ban against Boral supplying concrete. Consideration 256 The ACCC alleges that Mr Lythgo was informed of the Ban Against Boral in mid-February 2013. I have already found that it was not at the February meeting that any Ban Against Boral was given or communicated. 257 Insofar as Mr Lythgo received a message from the CFMEU in early 2013 in relation to the safety of concrete trucks and the implementation of checklists, Mr Lythgo's clear recollection was that he received the checklist at an OH&S meeting. His understanding from the OH&S meeting that the list was intended to be used to check all concrete trucks, and not just Boral trucks. 258 After receiving the checklist, Mr Lythgo took it to Mirvac's safety committee, including Mr Serge Saffra. He did this because he felt he had a moral obligation to ensure safety was conducted properly on the job. He had discussions with the safety committee about various items on the checklist which needed to be looked at. Mirvac then took some points from the checklist and added them to Mirvac's own safety documentation. Mr Lythgo had direct input into this process. He did not subsequently use the union checklists on concrete trucks, because Mirvac had its own system in place. Mr Lythgo was satisfied with the Mirvac approach. 259 In my view, this process seems inherently likely and I accept this evidence. 260 The ACCC alleges a conversation between Mr Lythgo and Mr Ubaldi in or about mid-February 2013. Mr Lythgo gave evidence that he did not know Mr Ubaldi and that he had no interaction with anyone in Squadron's management (which would include Mr Ubaldi). Both in evidence in chief and cross-examination Mr Ubaldi said that he did not know Mr Lythgo's name, and that he only found out Mr Lythgo's name – from an unidentified source – sometime later, in connection with this proceeding. 261 Mr Ubaldi was vague as to the content of the conversation. 262 In chief, Mr Ubaldi said that his initial approach to Mr Lythgo "would have been" very bluntly to ask what the issue was with his current supplier. He said that he "can't recall the exact wording" of the conversation, and was only able to state that he had an "understanding" that there was a ban on Boral on site (transcript, p 176). When asked if Mr Lythgo advised why there was a concern about Boral and Alsafe, he said that he did not recall the exact issue, although his "impressions were that it may have been a safety issue": T176.41. 263 Similarly, in cross-examination, Mr Ubaldi accepted that he could not remember the exact words used, and "I don't remember the exact wording" (transcript, p 183). When asked about the alleged Ban Against Boral, he said that it "would have been" discussed. Mr Ubaldi was uncertain about a number of important aspects of this conversation. 264 Mr Ubaldi seemed to accept that it was his foreman – Mr Sindoni – who was the source of his information that there was allegedly a Ban Against Boral. He was not aware of how Mr Sindoni learned of any ban. It appears that, having already spoken to Mr Sindoni, Mr Ubaldi had already formed the view from that conversation that there was a ban in place. There is no evidence that Mr Lythgo ever spoke to Mr Sindoni. 265 In light of Mr Ubaldi's uncertainty about his dealings with Mr Lythgo and Mr Lythgo's denial that they had ever spoken, Mr Ubaldi's knowledge of any issues in relation to Boral could have been derived from information supplied to him by his foreman, rather than from Mr Lythgo. 266 Mr Lythgo denied having been told of the Ban Against Boral at the February meeting and denied having gone onto site and passing that instruction on to Mr Ubaldi. Mr Lythgo denied telling anyone at Tower that there was a ban on Boral, or that there was a directive not to use Boral. I accept this evidence. 267 In any event, on the basis of the evidence (including the vague evidence of Mr Ubaldi), I cannot be satisfied that Mr Lythgo said to Mr Ubaldi words to the effect alleged by the ACCC in paragraph 97 of the Amended Statement of Claim. Further, as the allegation relates to the conversation occurring in or about mid-February, I cannot be satisfied it was in any way related to the Ban Against Boral communicated at the March meeting. 268 Therefore, I cannot be satisfied that the allegations of the conduct alleged against Mr Lythgo contained in paragraph 97 of the Amended Statement of Claim have been proved, and in any event cannot conclude Mr Lythgo implemented the Ban Against Boral, which was communicated in March 2013, after the alleged conversation relied upon by the ACCC. Richmond 269 The Richmond site was a construction site in Richmond that involved the construction of an office building. The head contractor was Hacer. Oceania was subcontracted to do the foundations, groundworks, concrete and reinforcement works, starting around March 2013. Oceania used Boral as a concrete supplier for the job. The shop steward for this site was Mr Scott, and he gave evidence on behalf of the ACCC. The ACCC also called Mr Mark Milano and Mr Phillip Petersen to give evidence in relation to this site. The ACCC's case 270 The ACCC's case was that when Oceania started on site at the Richmond site, it was using Boral as its preferred concrete supplier. However, the conduct of shop steward Mr Scott resulted in Oceania deciding to acquire concrete from Hanson and Holcim (arranged by Boral) at the Richmond site for a period of time and acquire concrete from Holcim at the Richmond site from 17 April 2013. The volume of concrete not supplied by Boral was said to be at least 5009.1m3 because: on 12 April 2013, Hanson supplied 19.0m3 of concrete at the Richmond site; on 13 April 2013, Holcim supplied 21.0m3 of concrete at the Richmond Site; and between 17 April 2013 and 5 May 2014, Holcim supplied 4969.1m3 of concrete at the Richmond site. 271 The impugned conduct of Mr Scott was said to have occurred in early 2013. Mr Scott allegedly told Mr Humphrey that if Oceania were to continue to use Boral, Mr Scott "was going to get in the shit" (transcript, p 149). Mr Humphrey's evidence was that Mr Scott also said something along the lines of "being the meat in the sandwich between his employer and the CFMEU". Mr Humphrey said: "That was the instruction that he had been given by the union" (transcript, p 149). 272 The ACCC pointed to the fact that Mr Scott conceded he said words to the effect of "Don't use Boral. We don't need this shit", and that he agreed that this statement meant "We don't need any hassle from the CFMEU" (transcript, p 543). Shop steward Mr Scott gave evidence that he said to the Oceania representative: "we're going to be implementing prestart lists on agitator trucks" and "There was going to be an issue and we were going to have to implement a safety checklist" (transcript, p 510). When asked what that issue was, Mr Scott gave evidence that "There was an issue between Boral and the CFMEU" and it was "Something to do with Grocon" (transcript, p 510-11). Mr Scott also gave evidence that he mentioned that he felt like he was the meat in the sandwich. 273 Mr Petersen, who was employed by Oceania as a carpenter and supervisor from around February 2013 for a short period, also gave evidence that Mr Scott said "when the concrete trucks arrive, or the agitators, that he [Shop Steward Scott] would be inspecting for safety" (transcript, p 168). Mr Scott said to Mr Petersen that the inspections would be "Like virtually roadworthy" inspections, to "make sure the tyres and mirrors, or whatever it was, safe to come onsite" (transcript, p 169). Mr Petersen gave evidence that he asked Mr Scott, "Why do you want to do that?" and, in response, Mr Scott said that "they [CFMEU] didn't want Boral to supply concrete to that site" (transcript, p 169). 274 Mr Scott gave evidence that "I could have had that conversation with somebody" (transcript, p 544). 275 Mr Petersen relayed his conversation with Mr Scott to Mr Humphrey, who was his supervisor at the Richmond Site, straight away. Similarly, Mr Humphrey relayed the conversation he had with Mr Scott to Mr Mark Milano. By that time, Mr Humphrey had already had similar conversations with shop stewards on other sites, including the Officer site, the Notting Hill site and the Lilydale site. 276 The ACCC submitted that, as a result of these conversations, Mr Mark Milano decided to change Oceania's concrete supplier from Boral to Holcim for the remainder of the job at the Richmond Site. The reason that he decided to change concrete supplier for the Richmond Site following this conversation between Mr Scott and Mr Humphrey was explained in evidence as follows: Because it's about the easiest passage, and at the end of the day we've got to work with the union, and it's – I'm a – we're – it's a family business, and I suppose if I was to push back, and try and use another supplier, it was only going to impact on my business. And I – at the end of the day, it's Boral – it was Boral's fight; not my fight. The CFMEU's case 277 The CFMEU characterised the above evidence as supporting a finding that Mr Scott believed he had been given an instruction both not to have Boral on sites, and to implement a safety checklist across the board, in relation to all concrete trucks. 278 The CFMEU also characterised Mr Mark Milano's decision to change from Boral as a further example of Oceania "jumping" rather than "being pushed". It submitted that Mr Mark Milano's decision to change suppliers appeared to relate far more to Mr Lane not being in a position to immediately guarantee supply by Boral (transcript, p 200) than to anything reported to him from the Richmond site. Certainly, Mr Milano acted in the absence of any occasion on which Boral trucks were delayed or turned away from Richmond. 279 The CFMEU also submitted that Mr Scott did not have the purpose of causing loss or damage to Boral. He in fact stated that "I don't have an issue with Boral" (transcript, p 510), and testified that he did not check any Boral trucks, although he did use safety checklists after they were supplied by the union. However he was confident his method of checking never caused the trucks to be delayed (and there was no evidence of delays in this respect). 280 Furthermore, the CFMEU submitted that there was no evidence that Mr Scott completed safety checklists as some kind of cover for implementation of a ban. Consideration 281 In addition to the above evidence of Mr Humphrey and Mr Scott referred to by the ACCC (which I accept and which the terms thereof were not in dispute), Mr Scott agreed that he received an instruction at meeting from someone in the executive of the CFMEU that Boral was not to supply at building sites. He also agreed he was given an instruction to implement the checklist on construction sites. 282 I have already found that Mr Scott attended the Trades Hall meetings, and that communications from the CFMEU to shop stewards directing a certain course of action were received and accepted by shop stewards as instructions at the March meeting that they were required to implement. I do not accept that Mr Scott received or accepted the instructions as applying to "all trucks": this is contrary as I have explained before to the objective evidence. 283 Mr Scott accepted that after a shop stewards meeting in early 2013, he spoke to someone at Oceania, although he was unsure who. Mr Scott accepted at one stage that it could have been Mr Sean McEvoy to whom he spoke, but at other times in his evidence thought he may have spoken to Mr Milano. Mr Scott said he told whoever he spoke to that there was going to be an "issue" and, "we're going to be implementing prestart checks on agitator trucks" (transcript p 510). Mr Scott was sure that he had said "all trucks". 284 As to the actual implementing of safety checks, Mr Scott explained that undertaking a checklist took him about 10 minutes; he would do the checks as the trucks were backing up to the pump, and then as more trucks lined up, he would do the checks in the street. He was confident his method had never caused the trucks to be delayed. There was no evidence from any Oceania witness that Mr Scott's method of undertaking checks on concrete trucks at Richmond caused delays. 285 I do not consider that Mr Scott actually completed safety checklists as some kind of cover for implementation of a ban. Documentation confirms Mr Scott's evidence that he treated the instruction to do safety checks of concrete trucks as operating across the board, in relation to all trucks and all suppliers. 286 However, as I have found, the implementation of the Ban Against Boral included threats in relation to Boral. In this regard, it is clear that: (1) Mr Scott was aware of the Ban Against Boral having attended the March meeting; (2) Mr Scott conveyed a message to Oceania representatives to the effect that it would be desirous not to use Boral in the terms set out above indicating the threat of the Ban Against Boral; and (3) As a consequence, Oceania switched suppliers to Holcim for the Richmond site. 287 Further, I am satisfied that the evidence establishes that Mr Scott engaged in the actions described in paragraphs 173 and 174 of the Amended Statement of Claim. 288 In relation to this site, there is evidence that Mr Scott's actions coincided with the instruction to implement the Ban Against Boral. It can be readily inferred that in these circumstances he did undertake these actions to implement the Ban Against Boral to the extent it was a threat, and not actually turning away Boral trucks. It can also be readily inferred that the CFMEU acted in concert with Mr Scott. 289 Despite the submissions of the CFMEU, it is irrelevant that Mr Scott did not carry out the threat made by his words, as the threat effectively was enough to cause Mr Milano of Oceania to change suppliers. As I have said, I do not accept that Mr Scott thought the instruction related to "all trucks": as I have indicated elsewhere, the objective evidence indicates otherwise, as does his conversation with Oceania's representative. I have already addressed the issue of whether Oceania "jumped" or was being pushed earlier in these reasons. 290 Whatever Mr Scott personally thought about Boral ("I don't have an issue with Boral", transcript, p 510) is beside the point in considering the purpose of the conduct and the likely effect of the conduct of the CFMEU and Mr Scott. The only purpose of the CFMEU and Mr Scott in making the statements was to cause substantial some loss or damage to the "business" of Boral. The business does not just include the direct impact on the site, but also the impact globally on the "business" of Boral, including its reputation. 291 Equally, the conduct would have likely had the effect of causing substantial loss and damage to the business of Boral. 292 On the above basis, I find that the allegations made by the ACCC against the CFMEU in relation to the Richmond site have been sustained, and the CFMEU contravened s 45D(1) of the CCA. Tarneit 293 The Tarneit site was a construction site in Tarneit that involved the construction of a shopping centre. The head contractor was Hacer. Oceania was subcontracted to do the formwork and concrete placement for the foundations, starting around February 2013. Oceania used Boral as a concrete supplier for the job. The shop steward for this site was Mr Domenic Mazzeo, and he gave evidence on behalf of the ACCC. The ACCC also called Mr Damien Milano and Mr McEvoy to give evidence in relation to this site. The CFMEU's Organiser for that geographic area was Mr MacDonald, although he was not called to give evidence. As I have indicated, this site was pleaded differently on account of the involvement of the CFMEU through Mr MacDonald. The ACCC's case 294 The ACCC's case was that when Oceania started work at the Tarneit site, Oceania used Boral as its concrete supplier. However, the ACCC alleged that the conduct of shop steward Mr Mazzeo (either alone or in tandem with Organiser Mr MacDonald) resulted in Oceania deciding to acquire concrete from Holcim instead at the Tarneit site from 21 March 2013. The volume of concrete not supplied by Boral at the Tarneit site was said to be at least 1227.0m3, as between 21 March 2013 and 19 November 2013, Holcim supplied 1227.0m3 of concrete to Oceania at the Tarneit site. 295 The impugned conduct of Mr Mazzeo was said to be a conversation he had on site with Mr McEvoy, where Mr Mazzeo allegedly said words to the effect that the "CMFEU [sic]… didn't want Boral supplying concrete on – on any CMFEU [sic] site" and that "the CMFEU [sic] didn't want Boral trucks … supplying concrete on any union jobs" (transcript, p 121). 296 Mr McEvoy also gave evidence that he remembered Mr Mazzeo "speaking about the banning of Boral trucks on job sites" (transcript, p 122), and that at one point in time when Mr McEvoy raised the prospect of Oceania continuing to use Boral, Mr Mazzeo said "Oh, well, we will be doing a - inductions - like, some form of induction on the truck as they come in the gate" (transcript, p 121-2). 297 Mr McEvoy allegedly told his boss, Mr Damien Milano (who was Oceania's production manager for the Tarneit site), about the conversation he had with Mr Mazzeo, and Mr Damien Milano gave evidence about a similar conversation he had with Mr MacDonald towards the end of March 2013 (transcript, p 103-4). 298 Mr Damien Milano's evidence was that he received a telephone call from Mr MacDonald on or around 18 March 2013 and, during that conversation, Mr MacDonald suggested 'that it would be a good idea if we changed to another concrete supplier' (transcript, p 103). Mr Damien Milano also gave evidence that, during that conversation, Mr MacDonald said if Oceania continued to use Boral, 'there would be some issues on site with delays of pours or checking of trucks or other things that could cause us issues and delays to our company' (transcript, p 103-4). 299 Mr Mazzeo accepted that at one point in time he did hear Mr MacDonald say to Mr Damien Milano that it would be advisable to use a different concrete supplier (transcript, p 464). 300 After these conversations, Mr Damien Milano had a discussion with Mr Mark Milano, and they decided to use another concrete supplier (Holcim) for the Tarneit Site (transcript pp 104, 196). The reason that Oceania decided to change its concrete supplier for the Tarneit Site was allegedly "To avoid any delays or secondary type costs to our business" (transcript, p 104) and "To be actually able to keep going with the concrete pours" (transcript, p 196). 301 Holcim was said to have supplied Oceania's concrete for the remainder of the job (transcript, p 124), and the Holcim volume report was said to corroborate the timing of the conversations between Mr Damien Milano and Mr MacDonald, and Mr McEvoy and Mr Mazzeo. The CFMEU's case 302 The CFMEU contended that there was little evidence to suggest that Mr Mazzeo received an instruction at the February meeting to implement a ban against Boral – rather, it was the importance of concrete truck safety that was impressed upon him. The CFMEU pointed to his recollections that Mr John Setka said something about safety, ensuring that Boral trucks were safety checked, and making sure their safety was "up to scratch" (transcript, p 430). Mr Mazzeo also recalled Mr Setka's comment that "If they don't meet the checks or the safety checks to turn them away if they don't comply" (transcript, p 446). 303 The CFMEU submitted that Mr Mazzeo's conversation with Mr McEvoy was better characterised as one concerned with safety, rather than the implementing of a Ban Against Boral. The CFMEU relied upon Mr McEvoy's recollection that Mr Mazzeo referred to safety concerns during their conversation. They also relied upon Mr McEvoy's concession that Mr Mazzeo made it clear it was a safety issue which meant he had to check the trucks. Furthermore, the CFMEU contended that Mr Damien Milano did not take any action upon receiving the report of this conversation from Mr McEvoy, the inference being that whatever Mr Mazzeo said to Mr Damien Milano had no causative impact on anything done by Oceania thereafter, such as their switch from Boral to Holcim. 304 In relation to the decision to switch from Boral to Holcim, the CFMEU submitted that Mr Mark Milano had already formed a view by March 2013 that there might be risk associated with using Boral, and taken with his view that it might be time to try a supplier other than Boral. The decisions he made thereafter were not caused by or in response to communications and information emanating from subsequent sites. Those decisions were rather alleged to be the result of his desire to "stay ahead of the curve" (transcript, p 209). 305 Finally, the CFMEU also pointed out that Mr Mazzeo never turned away or delayed any Boral or Holcim trucks from Tarneit (transcript, pp 109, 133, 209, 469), nor did he confine his safety checks to Boral trucks in relation to the alleged ban against Boral (transcript, pp 450, 468). Consideration 306 Mr Mazzeo said he attended the March meeting, but said he did not receive any instruction as put to him. The shop stewards were told, according to Mr Mazzeo, not what to do, but what to look out for. I have already found in that regard that communications from the CFMEU to shop stewards directing a certain course of action were received and accepted by shop stewards as instructions at the March meeting that they were required to implement. I also found that each shop steward who attended the March meeting understood that the industrial dispute was ongoing, action in the nature of the Ban Against Boral was required to implement the policy and direction of the CFMEU, and the mechanism to implement the Ban Against Boral was the carrying out or a threat communicated to customers of Boral to carry out prolonged safety checks to prevent the trucks coming on site. To the extent Mr Mazzeo's evidence is to the contrary, I do not accept it, as it is contrary to the objective evidence on this aspect. 307 On the basis of the evidence of Mr McEvoy (which I accept) Mr Mazzeo did make the statements attributed to Mr Mazzeo. In the main, Mr McEvoy's evidence was not contested. In particular, both Mr McEvoy and Mr Mazzeo accepted that Mr Mazzeo made a representation concerning safety issues and the need to conduct checks on concrete trucks. I recall, in that regard, my finding above that the mechanism to implement the Ban Against Boral included a threat communicated to customers of Boral that there would be carried out prolonged safety checks. The conversation between Mr McEvoy and Mr Mazzeo included a specific reference to Boral. On this occasion, however, the evidence is that Mr Mazzeo's representation did not impact upon which supplier was used. Although Mr McEvoy said he passed on his conversation with Mr Mazzeo to Mr Damien Milano, who told him to leave it with him, Mr Damien Milano gave evidence that he did not take any action based on this report from Mr McEvoy. 308 Mr McEvoy said that later, after his first conversation with Mr Mazzeo during the induction, he attended a meeting on the site for union members. He said that at the meeting he heard Mr Mazzeo speak about the banning of Boral trucks and job sites and that someone else (an excavator driver) remarked "Oceania has always used Boral, so I doubt that's ever going to change, so". Mr McEvoy agreed this was a passing comment by someone with no authority to change suppliers. 309 Mr Damien Milano said he received a phone call from Mr MacDonald, organiser, on about 18 March 2013. Mr Damien Milano said Mr MacDonald told him it would be a 'good idea' to change to another supplier. He said that Mr MacDonald told him that if Oceania continued to use Boral there would be delays of pours or checking of trucks or other things that could cause issues and delays. 310 Mr Mazzeo also overheard part of a conversation between Mr MacDonald and Mr Milano, but what was said between them was not clear to Mr Mazzeo, who had a mobile phone and two way radio going off at the same time. He could recall that they were discussing safety concerns in relation to Boral. He recalled that Mr MacDonald said something to Mr Milano to the effect that for safety reasons, Mr Milano would be advised to use another company. 311 Mr Damien Milano said he relayed his interaction with Mr MacDonald to his brother, and that he and Mark then decided to use another supplier "to avoid any delays or secondary type costs to our business" (transcript, p 104). Mr Mark Milano confirmed that his only dealings with anyone in relation to concrete supply to Tarneit were with his brother Damien, who called him to say that he had an instruction from Mr MacDonald that they were not to use Boral. Mr Mark Milano thereafter made the decision to change to Holcim. I find that Mr Mark Milano's decision making was informed only by the report he received from Damien of what Mr MacDonald said, and had nothing to do with anything said or done by Mr Mazzeo. 312 Mr Mark Milano said that after the phone call with his brother, he decided to switch to Holcim without making further enquiries because he just didn't need the "hassle" (transcript, p 209). 313 The statements of Mr MacDonald referred to above and pleaded against Mr MacDonald I find were made by him. He was not called as a witness, and the evidence of the statements alleged against him was compelling. 314 I find that Mr MacDonald himself then implemented the Ban Against Boral as alleged in paragraph 122 of the Amended Statement of Claim, following upon the instruction given by the CFMEU at the March meeting. 315 However, Mr Mazzeo's conduct as alleged did not cause a switch in suppliers. 316 In light of the pleading, unless the conduct of Mr Mazzeo can be impugned, then it cannot be said either that Mr Mazzeo and Mr McDonald carried out the "Tarneit Conduct" as defined, or that the Tarneit Conduct (in any of its alternatives) hindered or prevented Oceania from acquiring concrete from Boral. Whilst Mr MacDonald's conduct did cause a switch in suppliers, Mr Mazzeo's conduct did not. The pleadings is premised on the basis that the conduct of Mr Mazzeo (in tandem with Mr MacDonald) is what hindered or prevented Oceania from acquiring concrete from Boral. Werribee 317 The Werribee site was a construction site in Werribee that involved the construction of a shopping centre. The head contractor was Probuild, who retained Straightline Excavations Pty Ltd ('Straightline') to do the retention system, foundations, capping beam and bulk excavation. Straightline subcontracted BRC Piling and Foundation Pty Ltd ('BRC') to do the piling, foundations and retention system for the basement, starting just prior to Easter in 2014. The shop steward for this site was Mr Harisiou, and he gave evidence on behalf of the CFMEU. The ACCC also called Mr Craig Boam and Mr Tarken Gulenc to give evidence in relation to this site. This site also involved Mr MacDonald. The ACCC's case 318 The ACCC's case was that BRC intended to use Boral to supply concrete for the job (transcript, p 265). As a result of the conduct of shop steward Mr Harisiou (either alone or in tandem with Organiser Mr MacDonald), BRC decided to acquire concrete from Hy-Tec instead at the Werribee site from 30 April 2014. The volume of concrete not supplied by Boral at the Werribee site was at least 879.8m3, as between 30 April 2014 and 24 March 2015, Hy-Tec supplied 879.8m3 of concrete to BRC. 319 The impugned conduct of Mr Harisiou was said to have begun near the start of the project when, according to Mr Boam, he "asked who were we using to supply the concrete, I said it was Boral Concrete, and then there was a comment made we have to – we would have to have a discussion about that" (transcript, p 266). 320 Later, a meeting allegedly occurred at the Werribee site on or about 16 April 2014 which was attended by Messrs Gulenc, Boam, Harisiou and MacDonald. Mr Gulenc gave evidence that: "the gist of the meeting was in regards to the union having concerns about Boral being on the project" (transcript, p 249). Mr Boam gave evidence that during this conversation Mr Harisiou or Mr MacDonald raised questions about the roadworthiness of Boral's trucks, the quality of the concrete, and what it might do to the people on site. Mr Harisiou or Mr MacDonald also allegedly said that Boral concrete might give the members dermatitis and Mr Boam said "Well, we will go and get gloves from over the road, we will protect the members, there won't be an issue with dermatitis" (transcript, p 267). Mr Boam's evidence was that: "I assured them that we wouldn't have roadworthy concerns, because Boral assured me there wouldn't be roadworthy concerns, and that was it. Then I was – it was – the meeting was over for me" (transcript, p 267). The ACCC contended that the evidence of Mr Gulenc corroborated Mr Boam's testimony. 321 Mr Gulenc gave evidence that this was the first time that safety issues with trucks had been raised with him, and that thorough roadworthy checks of trucks which took some time would have been a significant delay to the works and a costly exercise, and that these matters caused him concern during the course of the meeting. Mr Boam and Mr Gulenc gave evidence that they had not heard any concerns about Boral concrete causing dermatitis before that meeting. 322 Mr Boam gave evidence that (transcript, pp 267-9, 276): I walked out of the meeting early. I still wanted to use Boral Concrete. I'd already told them that they had the job. … There was obviously an issue. I didn't need to make it my issue. It didn't have to be my issue. … [I]t wasn't really my problem. I didn't want to fight or anything like that. I just – we went – I did get a few quotes from different suppliers, and they were comparable to what we were paying. We had – there was a few discussions had between myself, Boral, Straightline, and it got to the point that I just agreed to change suppliers. … I was a subbie to a subbie. It wasn't my argument to be had. I was just there to get the job done. 323 On the basis of all of the above evidence, the ACCC submitted that Mr Boam's decision to change concrete supplier from Boral to Hy-Tec occurred as a result of his conversation with Mr Harisiou and Mr MacDonald. The CFMEU's case 324 The CFMEU first submitted that the significant lapse of time between when Mr Harisiou is alleged to have been informed of the Ban Against Boral (March 2013) and the date upon which he is alleged to have implemented the ban (April 2014) made it inherently unlikely that the requisite contemporaneity for "acting in concert" could be established. This was said to be corroborated by evidence that Mr Harisiou (and Mr MacDonald) had at no time sought to prevent Boral from suppling a much larger volume of concrete to the structures contractor at the Werribee Plaza site than would ever have been supplied by BRC. 325 Next, the CFMEU submitted that there was no evidence of the receipt or implementation of such a ban by Mr Harisiou. They pointed to his testimony that he could not remember attending, nor receiving such an instruction from, the relevant Trades Hall meetings– nor did he consider that he was even a shop steward at the times those meetings took place. The CFMEU also pointed to the fact that Mr Harisiou strongly denied in evidence that he implemented a ban against Boral at the Werribee site; or that he implemented an instruction to delay Boral trucks; or that he interrupted Boral trucks during concrete pours at Werribee Plaza; or that he enforced or implemented the checklist in a way that was deliberately slow to hold up Boral trucks. 326 In relation to the alleged meeting between Messrs Gulenc, Boam, Harisiou and MacDonald, the CFMEU contended that: At no time during the course of the meeting was Mr Boam asked to change suppliers. Neither Mr Harisiou nor Mr MacDonald said that Boral could not be used. It was not the case that BRC "had to get another supplier … other than Boral" (transcript, p 258). Rather, according to Mr Gulenc, the sentiment expressed was "please explore your options in terms of who else could possibly supply that would have met commercial terms" (transcript, p 259). Mr Boam left the meeting still intending to use Boral. It is undisputed that BRC did use Boral for the pour scheduled for the following day. 327 Thus the CFMEU submitted that Mr Boam did not switch suppliers from Boral to Hy-Tec as a result of the meeting with Mr Harisiou and Mr MacDonald on 16 April 2014. The CFMEU pointed to other plausible reasons, including commercial pressures and Mr Gulenc's dislike with Boral's service. 328 Finally, the CFMEU submitted that there was no evidence that Mr Harisiou (or Mr MacDonald) intended by his conduct to cause substantial loss or damage to the business or Boral. This was said to be evidenced by the fact that Boral supplied a much larger volume of concrete to I & D Constructions on the same project for over three years, without any concern being expressed by Mr Harisiou or Mr MacDonald. The CFMEU also claimed that there was no evidence that the 879.8m3 of concrete supply allegedly lost by Boral caused or was likely to have caused substantial loss and damage to the business of Boral, especially where BRC later continued to use Boral as its concrete supplier after Werribee Plaza (in 2015 alone, BRC spent more than $500,000 purchasing concrete from Boral) (transcript, p 290). Consideration 329 I do not consider the significant lapse of time between when Mr Harisiou (or Mr MacDonald) was informed of the Ban Against Boral (March 2013) and the date upon which he is alleged to have implemented the Ban (April 2014) makes it inherently unlikely that the requisite contemporaneity for "acting in concert" will be established. 330 In order to establish the requisite conduct on the part of both Mr Harisiou and Mr MacDonald, the ACCC must establish that at all material times after February 2013 and March 2013, both men understood that they should implement the Ban Against Boral until further notice. Having regard to the ongoing nature of the industrial dispute, I will infer that the implementation of the Ban Against Boral was still in operation. No evidence was called by the CFMEU to the contrary. 331 I accept that, contemporaneously with the alleged ban in respect of BRC at Werribee Plaza, and for further three years thereafter, Mr Harisiou permitted Boral to supply a much larger volume of concrete to the structures contractor at the Werribee Plaza site (I & D Constructions) than would have been supplied by BRC. At no time did Mr Harisiou (or the area organiser, Mr MacDonald) seek to actually hinder or prevent the supply of that concrete. 332 Only one Boral truck was turned away from Werribee site during this period. The truck was not carrying concrete destined for BRC, but rather for I & D. That truck was turned away not by Mr Harisiou or by Mr MacDonald, but by a representative of Boral. 333 Mr Harisiou denied in evidence that he implemented a Ban Against Boral at the Werribee site; or that he implemented an instruction to delay Boral trucks; or that he interrupted Boral trucks during concrete pours at Werribee Plaza; or that he enforced or implemented the checklist in a way that was deliberately slow to hold up Boral trucks. This was evidence which seemed to relate to the actual turning away of trucks, rather than the threatening of using safety checks to delay the supply of concrete. On that basis, I accept Mr Harisiou's evidence. 334 However, at paragraphs 196 and 197 of the Amended Statement of Claim, the conduct relied upon by the ACCC as evidencing the implementation of the alleged Ban Against Boral comprises two separate conversations at Werribee Plaza on or about 16 and 17 April 2014. 335 The first conversation is alleged to have involved Mr Harisiou and Mr Boam, whilst the second conversation is alleged to have occurred at a separate meeting at the Werribee Plaza site involving Messrs MacDonald, Boam, Gulenc and Harisiou. 336 There is no doubt that the two conversations occurred, although not exactly as pleaded by the ACCC. The two conversations, either separately or together, do not support a finding that they constituted the implementation of the alleged Ban Against Boral by Mr Harisiou, as contended for by the ACCC. 337 Mr Boam gave evidence that he started at the Werribee Plaza site just before Easter 2014. Around that time he had a discussion with the shop steward about who BRC were using as their concrete supplier. When Mr Boam advised Mr Harisiou that BRC was planning to use Boral, the response was made that "we would have to have a discussion about that" (transcript, p 266). Mr Boam described this conversation as a "meaningless passing comment" (transcript, p 266). 338 Mr Boam did not depose to the allegation, pleaded at paragraph 196.4 of the Amended Statement of Claim, namely that Mr Harisiou told Mr Boam "that they would need to discuss it further but would need to wait for MacDonald". 339 Mr Harisiou also recalled this conversation, although in slightly different terms from that recounted by Mr Boam. Mr Harisiou denied that he had arranged for Mr MacDonald to attend a meeting, which appears to have taken place on the Wednesday before Easter. He also denied having had any discussions with Mr MacDonald before the Wednesday meeting about the fact that one of the subcontractors on site was going to use Boral. 340 Mr Harisiou gave evidence that it was Mr MacDonald's practice to drop into the site "once a week or once a fortnight" or "every now and then" in order to see how everything was going (transcript, p 759). 341 Subsequent to the initial conversation between Mr Boam and Mr Harisiou there was an informal meeting at the Werribee Plaza site attended by Messrs Boam, Harisiou, Gulenc and MacDonald. 342 The most likely date of that meeting is Wednesday, 16 April 2014. The meeting took place in Mr Harisiou's office. It lasted for between 20 and 30 minutes. The tone of the meeting was polite and civilised: there was no anger, frustration or swearing. 343 Mr Gulenc gave evidence that the "gist of the meeting was in regards to the union having concerns about Boral being on the project" (transcript, p 249). This, he said, came from Mr Harisiou. The union attendees (Mr MacDonald and Mr Harisiou) raised concerns about dermatitis and the safety of Boral trucks. Mr Boam was "asked to consider alternative suppliers if it was – if it was possible" (transcript, pp 249-50). 344 Although Mr Gulenc initially gave evidence that Mr Harisiou said the inspection of trucks "would be a slow process", this evidence was at best equivocal – "I guess he did say that" (transcript, p 250). In cross-examination, however, he accepted that these words had not been said: "I accept that he didn't – didn't say delays. He probably didn't use the words that it was going to take a long time no" (transcript, p 256). 345 Mr Gulenc's earlier evidence seemed to be more a reconstruction than a recollection. Mr Boam, who might properly be regarded as having the greatest interest in whether BRC would be permitted to use Boral on site, did not give any evidence of such a statement having been made by Mr Harisiou. His evidence in relation to the conversation was: (1) "Like I said, I sort of – I didn't really take it too seriously. It was just a conversation about concrete suppliers and who we were using. There was a few safety issues raised. The – I thought that they wouldn't be really big issues. Thought there was things we could handle, things we could cover. And then I was – the meeting was ended for me" (transcript, p 266). (2) "Myself and Tarken were doing the listening. The other two guys were talking, definitely, I don't know who said what but there was questions raised about the roadworthiness of Boral's trucks, there was questions raised about the quality of the concrete, and what it might do to the people on site" (transcript, p 267). (3) "What do you mean by that? – Well, they said that Boral concrete might give the members dermatitis. I said, "Well, we will go and get gloves from over the road, we will protect the members, there won't be an issue with dermatitis." I assured them that we wouldn't have roadworthy concerns, because Boral assured me there wouldn't be roadworthy concerns and that was it. Then I was – it was – the meeting was over for me" (transcript, p 267). 346 Mr Boam gave evidence that, at the end of the meeting, it was still his intention to use Boral. He was not intimidated by the events at the meeting and "wasn't forced to make a decision or anything" (transcript, p 267). Mr Harisiou gave evidence that at the end of the meeting it was his understanding that Mr Boam intended to use Boral, and "that was fine" (transcript, p 723). 347 I find that: (1) At no time during the course of the meeting was Mr Boam asked to change suppliers. (2) Neither Mr Harisiou nor Mr MacDonald said that Boral could not be used. It was not the case that BRC "had to get another supplier…other than Boral" (transcript, p 258). Rather, according to Mr Gulenc, the sentiment expressed was "please explore your options in terms of who else could possibly supply that would have met commercial terms" (transcript, p 259). (3) Mr Boam left the meeting still intending to use Boral. 348 Further, at the end of the meeting, all present were aware that BRC intended to use Boral for the pour which was scheduled for the following day. Neither Mr Harisiou nor Mr MacDonald expressed any concern about that fact. Although Mr Harisiou and Mr MacDonald had expressed a view that Boral was not the right supplier, they had done no more than request that BRC explore other options. 349 Mr Harisiou was present on site during the Thursday pour by Boral. The pour was in no way delayed or disrupted, and there was no hindrance or prevention of supply. Nor was there any threat made by Mr Harisiou. 350 On the question of safety, Mr Gulenc gave evidence that during the course of the meeting Mr Harisiou referred to concerns he had with the safety of Boral trucks. Mr Harisiou, he said, was focused on "the whole gamut of safety issues concerning trucks and – and their entry and exit into the site". According to Mr Gulenc, Mr Harisiou stated that he would check all trucks regardless of supplier, whether it be Boral or someone else. Mr Boam was of the view that the safety concerns raised at the meeting by Mr MacDonald and Mr Harisiou were "legitimate concerns", but that they could be controlled. 351 Mr Harisiou said that in his initial conversation with Mr Boam, he told Mr Boam that there was a checklist which he used "on any concrete trucks" (transcript, p 722). During the second meeting, both he and Mr MacDonald said that there was a checklist to be performed. 352 After Easter, by which time BRC had changed to Hy-Tec for its concrete supply, Mr Harisiou continued to use the checklist. These checklists were applied both by Mr Harisiou and his assistant HSR, David Constable. The inspections took less than one minute. All suppliers, to various subcontractors, were subject to inspections.. 353 Consistently with his practice of checking trucks from all suppliers, Mr Harisiou gave evidence that he asked all subcontractors at the Werribee Plaza site which concrete supplier they were using and told them that he would be checking their trucks, regardless of supplier. 354 Thus, I accept that Mr Harisiou's purpose was to ensure the safety of the workers on the site, and not simply some ruse for the purpose of implementing the Ban Against Boral. It was not put to him that he was engaged in an elaborate device to deflect attention away from a plan to ban Boral at the site. 355 Mr Harisiou said that had BRC produced a safety plan in relation to the supply of Boral concrete (just as I & D Constructions subsequently did), there would not have been any issue with BRC using Boral. I accept that the purpose of his meeting with Mr Boam was to raise concerns in relation to Boral and to ensure that those concerns were properly addressed – just as I & D Constructions did by meeting with him and Boral, and just as Boral did by producing the safety plan for the site. 356 I find that Mr Boam did not switch suppliers from Boral to Hy-Tec as a result of the meeting with Mr Harisiou and Mr MacDonald on 16 April 2014. On the contrary, the evidence set out above confirms that at the end of the meeting that day Mr Boam still intended to use Boral, but intended to consider other options. 357 In a separate discussion between Mr Gulenc and Mr Boam following the meeting, Mr Boam and Mr Gulenc agreed that Mr Boam would explore other options to find another concrete supplier. However, if Mr Boam were not able to locate a replacement supplier on satisfactory terms, he still intended to use Boral. 358 Over the Easter break Mr Boam called Mr Gulenc and advised that he had found another supplier on "commercial terms that were favourable" (transcript, p 252). There was evidence that the 'commercial' terms issue was more important to Mr Boam than anything that might have been said by the union representatives. 359 In my view, the evidence discloses that any pressure on Mr Boam to change suppliers came from Mr Gulenc, and not from Mr Harisiou or Mr MacDonald. 360 Straightline's preferred supplier was Piave. Mr Gulenc had used Boral intermittently, but was not impressed with their high prices and poor delivery. Mr Gulenc said, in response to a question regarding Boral's service, that it was: "Difficult to deal with. Price was never – or seldom competitive. Commercial terms were very stringent. Yes, very rigid supplier. I never had much time for Boral. 361 I find that, although Mr Boam made a decision to switch suppliers, that decision was not made as a consequence of any conduct by Mr Harisiou or Mr MacDonald. The evidence stands in contrast to the position relating to Oceania upon which I have earlier made findings. 362 In light of the above reasoning, I am not satisfied that there was any hindering or preventing BRC from acquiring concrete from Boral as alleged in paragraph 201 of the Amended Statement of Claim. 363 Further, I am not satisfied that Mr Harisiou undertook any of the actions attributed to him and described in paragraphs 196 and 197 in order to implement the Ban Against Boral. If there is not impugned conduct by Mr Harisiou, then there can be no contravention by the CFMEU. All the allegations of acting in concert in paragraph 200 involve Mr Harisiou, and without his impugned conduct occurring, (even with the assistance of s 45DC(1)), the CFMEU cannot be found to have contravened s 45D(1) of the CCA. Attempt allegations Notting Hill 364 The Notting Hill site was a construction site in Ferntree Gully Road in Notting Hill that involved the construction of a four-level office building. The head contractor was Hansen Yuncken. Oceania was subcontracted to do the formwork, excavation footings and concrete works, starting at some time in 2012. Oceania used Boral as a concrete supplier for the job. The shop steward for this site was Mr Kemp, and he gave evidence on behalf of the CFMEU. The ACCC called Mr Mark Milano and Mr Humphrey to give evidence in relation to this site. The ACCC's case 365 The ACCC's case was that very late in the project, shop steward Mr Kemp approached Mr Humphrey and they had a conversation where Mr Kemp said words to the effect that Oceania "won't be using Boral" and that was "the instruction he had been given by the union" (transcript, pp 141-2). 366 The ACCC contended that this was an attempted contravention as Boral was not actually hindered or prevented from supplying concrete in this instance. At that stage, the only work left to be done by Oceania at the Notting Hill Site was a set of stairs, and Alsafe did in fact supply Oceania with the concrete needed for those stairs. The CFMEU's case 367 The CFMEU contended that Mr Kemp was not attempting to implement a Ban Against Boral as alleged by the ACCC. They pointed to the fact that Mr Kemp did not recall speaking to Mr Humphrey about who he was going to use as a concrete supplier, and his evidence that he had never used words like that before on other sites either. 368 The CFMEU submitted that Mr Kemp was safety conscious, and had in fact recalled safety issues regarding Boral that were raised at a Trades Hall meeting. The CFMEU submitted that Mr Kemp did perform visual safety checks whilst on site (not using a checklist), but never turned a truck away. They contended that Mr Kemp always adopted a common sense approach (in contrast to the alleged obligatory nature of the CFMEU safety checklists) and would not send back a truck with a full load of concrete. 369 The CFMEU also submitted that it was telling that Mr Humphrey, in recalling his perception that Mr Kemp did want Boral trucks on site, stated that "things had progressed in Melbourne that just that understanding was there" (transcript, p 141). The CFMEU contended that this demonstrated a preconceived view held by Mr Humphrey that he did not want to use Boral or run the risk of delays, if there was an equally convenient or commercially viable alternative. Consideration 370 By way of background, I observe that Mr Kemp recalled Mr Setka speaking about the Grocon dispute at a Trades Hall meeting. Mr Kemp also recalled some issues about concrete trucks being raised at a Trades Hall meeting, and mention of Boral's health and safety record. He recalled it being said that Boral had a worldwide bad health and safety record. He recalled mention of trucks tipping over. At one meeting, he could not recall which, Mr Kemp said there was mention of using safety checklists. The checklists were about concrete trucks "in general". Mr Kemp's recollection was that companies besides Boral were mentioned, and that he could recall the checklist involved all the concrete companies that came on site. 371 However, Mr Kemp did not recall speaking to Mr Humphrey about the concrete supply to Notting Hill. The words attributed to him surprised him and he suggested it was possible it was made up by Mr Humphrey. 372 In re-examination, Mr Kemp confirmed that, "you won't be using Boral here, it's an instruction from the union" were not the sort of words he would have used. 373 I do not accept that Mr Kemp said the words attributed to him by Mr Humphrey. I consider Mr Humphrey was mistaken, or took the words out of context. Mr Humphrey's evidence on the conversation was more given by way of impression than exact recollection. I accept the evidence of Mr Kemp on this issue in the context of the conversation. Mr Kemp impressed me as an honest witness. 374 The actions of Mr Kemp also indicate it was unlikely this conversation occurred as alleged. It is to be recalled that the supply of concrete by Boral to Oceania was not actually delayed or interrupted. 375 Mr Kemp explained that there only about three concrete truck deliveries during the time he was on the Notting Hill site. In any event, Mr Kemp did not ever turn away or any concrete trucks delivering to Notting Hill. 376 Mr Kemp did visual checks on a couple of trucks that came to Notting Hill, but did not use a written checklist at the site. Mr Kemp thought that he would have checked any Boral or Alsafe trucks which came to the Notting Hill site, because he checks all trucks that come onto site. His normal procedure was to do so, and to have a look at the truck's general condition, roadworthy condition, safety aspects. This was a process that would take him 5 to 10 minutes. While the process was similar whether he was using a checklist or not, he said it may be a shorter process when done in the absence of a written checklist. 377 Mr Kemp was not sure whether the Exhibit A10 checklist was in use during his time at Notting Hill. 378 Mr Kemp further explained the process he used in checking trucks delivering to sites. He would go around and check the trucks while they were waiting to unload. Significantly, he confirmed that if any items on the checklist were a "fail" he would get in touch with the supplier and make sure the driver returned with the item rectified. He confirmed he would not send a truck away with a load of concrete. 379 Mr Kemp went on to explain that he adopted a common sense approach. If the truck was in a condition where it would be dangerous for the driver or someone in the vicinity for it to be unloaded, he would have stopped it. But if it was just a cracked windscreen or broken indicator, while he was aware VicRoads could pull the driver up for it, that was different. He said he did not come across any trucks that were in bad enough condition to stop them delivering their load of concrete. By way of further example, if Mr Kemp indicated on a checklist that the driver had not done the site induction, he would mention it to the site manager and have the company do the site induction for that driver. 380 It was specifically put to Mr Kemp that there was an instruction in Exhibit A10 that if any item below was not "ticked", the concrete must not be unloaded until the issue is resolved. Mr Kemp acknowledged "I didn't do that". Mr Kemp agreed that this was an instruction, and ignored it. 381 I accept Mr Kemp's evidence as to his process of checking trucks, and whilst he knew about the Ban Against Boral, I am not satisfied the allegation concerning his impugned conduct has been established. 382 Therefore, as I do not conclude that Mr Kemp undertook the action alleged in paragraph 152.3 of the Amended Statement of Claim, I cannot conclude that Mr Kemp in fact implemented the Ban Against Boral as alleged in paragraph 153 of the Amended Statement of Claim. In this circumstance, the CFMEU did not attempt to contravene s 45D(1), at least as pleaded in paragraphs 154-158 of the Amended Statement of Claim. Officer 383 The Officer site was a construction site in Officer that involved the construction of the Cardinia Shire Council offices. The head contractor was Watpac Construction Pty Ltd ('Watpac'). Oceania was subcontracted to do the formwork and to build the foundations and structure, starting in around September/October of 2012. Oceania used Boral as a concrete supplier for the job. The shop steward for this site was Mr Salvador Carrillo, and he gave evidence on behalf of the ACCC. The ACCC also called Mr Mark Milano and Mr Humphrey to give evidence in relation to this site. The ACCC's case 384 The ACCC's case was that shop steward Mr Carrillo approached Mr Humphrey at the Officer site and said that he (Mr Carrillo) had been given an instruction from the CFMEU that there were going to be issues with the use of Boral on sites. There was also the evidence of Mr Mark Milano, who testified that Mr Humphrey telephoned him in the middle of February 2013 to tell him that that the shop steward on the Officer site had advised him that Oceania would have to look at another supplier and could not use Boral. 385 The ACCC contended that this was an attempted contravention as Boral was not actually hindered or prevented from supplying concrete in this instance. After Mr Mark Milano had spoken with Mr Humphrey, he called Watpac's Construction Manager, Mr Spiro Mirgiannis, who allegedly spoke with the CFMEU and obtained a dispensation to allow Watpac to continue to use Boral. No Boral truck was ever turned away from the Officer site. The CFMEU's case 386 The CFMEU submitted there was no evidence to suggest that Mr Carrillo was attempting to implement a Ban Against Boral. Mr Carrillo repeatedly denied the existence of a Ban Against Boral, both at trial and during the s 155 interviews. His recollection of Boral being mentioned at a Trades Hall meeting was limited to a discussion about the safety of concrete trucks from all companies – not just Boral. Mr Carrillo was clear that the message he took away from the Trades Hall meeting was "to check all trucks in construction sites" – Mr Carrillo said he understood the union to be telling him that they did not want any unsafe concrete trucks on site (transcript, pp 496-7). 387 The CFMEU further submitted that Mr Carrillo's implementation of safety checklists was both diligent and genuine. Consideration 388 The allegation against Mr Carrillo relates to events in February 2013 before the March meeting (see paragraph 83 of the Amended Statement of Claim). Mr Carrillo was the ACCC's own witness. He repeatedly denied the existence of a Ban Against Boral in the sense that there was a "black ban", or "bans", and by reference to the February meeting. He said of the Trades Hall meetings: "I never heard anything of bans. There was no questions about bans. There was nothing mentioned about bans" (transcript, p 489). 389 Mr Carrillo stated that there was no instruction given by the union to implement a Ban Against Boral and that the information he received from the union gave him to understand that he was to check the safety of all concrete trucks, regardless of supplier. 390 During his s 155 interview in October 2014, the following exchanges occurred: MR CRUTCHFIELD: Well, you had attended a shop stewards meeting in February 2013. MR CARILLO: Yes. Yes. Yes. … MR CRUTCHFIELD: Yes. And at that meeting a representative of the CFMEU told the shop stewards that Boral was to be black banned. That's right isn't it ? MR CARILLO: No, sorry no. … MR CARILLO: I don't recall black banned. … MR CRUTCHFIELD: Yes. Well, what do you recall John Setka telling the shop stewards at that meeting? What's your first recollection of what was said? MR CARRILLO: Well, the only thing I remember about talking about Borals – we weren't only talking about Borals, we were talking about other agis as well, I mean, concrete companies, that to check the – the agis, which is the concrete trucks. We had a lot of concerns with a lot of them coming around. And Boral had a lot of issues with their concrete trucks, and that had to do because a lot of the flashing lights and a lot of the – weren't working to safety standards on their trucks entering the premises as in, you know, a lot of leaks and oil, you know, no fire extinguishers in their trucks. There was a lot of things like that, so there was an alert basically just to keep an eye on the agis trucks, and that's what I do. …… MR CRUTCHFIELD: --- the CFMEU representatives at the meeting said that Boral was to be black banned; that's right isn't it, because they were Grocon friendly contractors? MR CARRILLO: Look, I'm sorry to tell you, but honestly I don't remember them saying "black ban". ……. MR CRUTCHFIELD: And John Setka said that the CFMEU wanted Boral to be black banned. MR CARRILLO: I don't recall the word "black banned". MR CRUTCHFIELD: All right. Well, as best as you can recall, what do you recall the discussion, without – just as best you can – what do you recall being discussed? MR CARRILLO: That they were friendly with Grocon. MR CRUTCHFIELD: Yes. MR CARRILLO: Okay. And, you know, obviously they're – but I didn't hear "black ban". That's what I'm trying to say. MR CRUTCHFIELD: Sure. Okay. Well, I will --- MR CARRILLO: Okay. I'm not going to sit here and say something that I don't believe that I heard. Okay. MR CRUTCHFIELD: I won't put "black ban" to you again. MR CARRILLO: Okay. So right. Thank you. …….. MR CRUTCHFIELD: Well, what I'm wanting to suggest to you is that the representative of the CFMEU told the meeting that Boral were Grocon friendly contractors and suppliers and as a result of that Boral trucks needed to be either stopped at the site, not allowed on to the site; do you agree with that? MR CARRILLO: No, it wasn't just Boral, it was all trucks. MR CRUTCHFIELD: All trucks are going to be stopped? MR CARRILLO: No. No. Just check all trucks. It had nothing to do with Boral. ……… (emphasis added) 391 In evidence, Mr Carrillo agreed that the subject of Boral came up at a Trades Hall meeting, but put this in context as follows: "all other companies that had to do with trucks – of the concrete trucks that came out, there was an alert about them" (transcript, p 472). Mr Carrillo said (transcript, p 472): They didn't say much about Boral. They talked about all concrete agis – or all concrete trucks. Boral was mentioned. So was another couple of companies. And they just said make sure that you went out there- and we had to come in and check the trucks because there were a lot of unsafe trucks going on jobs to jobs. . 392 Mr Carrillo recalled talk of Boral trucks being unsafe and that there were a lot of concerns about their trucks. The documents he was given were: "Not for Boral trucks. It had to do with all concrete trucks" (transcript, p 473). 393 Mr Carrillo confirmed that at an OH&S meeting, Dr Ayres of the union also spoke about safety of concrete trucks, and that there were "a lot of them out there that shouldn't be on site" (transcript, p 475). Mr Carrillo was clear that the message he took away from the Trades Hall meeting was "to check all trucks in construction sites" (transcript p 496). Mr Carrillo said he understood the union to be telling him that they did not want any unsafe concrete trucks on site. 394 As to what Mr Carrillo took away from the Trades Hall meeting, he said he was to go back to work and notify the blokes on site of the safety concerns, of the fact that the list was out and that he would check the concrete trucks. 395 Accordingly, his evidence that the message he took away from the meeting was that all concrete trucks, regardless of supplier, were to be checked for safety reasons against the checklists ought to be accepted. 396 In evidence, Mr Humphrey said Mr Carrillo told him he was given an instruction by the CFMEU that there was going to be issues with use of Boral on sites. He said that Mr Carrillo did not explain to Mr Humphrey what 'the issues' would be. Mr Humphrey did not form his own view as to what "issues" might mean. Mr Humphrey also accepted that his understanding as to what those "issues" might be was derived from experience at other sites, rather than what Mr Carrillo told him. 397 However, Mr Carrillo denied approaching Mr Humphrey and raising Boral. He said Mr Humphrey approached him. Mr Carrillo said that he had gone in to discuss the safety aspects with the Watpac manager, when Mr Humphrey approached him and asked what was going on, because he was "hearing there are bans". Mr Carrillo said he responded to Mr Humphrey "No, it's all rubbish" (transcript, p 476). He strongly denied telling Mr Humphrey that he had been given an instruction that there were going to be issues with Boral on construction sites. Mr Carrillo denied telling anyone at Oceania that Boral could not be used or that they should get a new supplier. He said: "Why should I say that. I've got nothing to do with dispatch of concrete" (transcript, p 489). 398 Mr Carrillo has always denied conveying the existence of a ban or of an intention to check only Boral trucks. The following passages from his s 155 interview confirm this to be so: MR CRUTCHFIELD: I'm not saying anybody has accused you of anything. That's what I'm putting to you, is that after the meeting, you told Oceania, "Gee, fellas, you're going to have a problem here because the CFMEU doesn't want Boral on site." MR CARRILLO: I wouldn't have said that, no. MR CRUTCHFIELD: No. Well, what did you say? MR CARRILLO: I don't know, but I wouldn't have said that. Because I – I wouldn't go out and do that. That's not the way I work. MR CRUTCHFIELD: Well, it would be the right thing to do, wouldn't it? Because you're warning Oceania they're going to have – may have a problem with getting these Boral trucks on site and getting concrete. MR CARRILLO: But I didn't say that to them, because they had the contract there anyway. I used Boral. I used Boral. I used Grocon trucks on my jobs. …….. MR CRUTCHFIELD: But what I'm suggesting to you is that after this meeting, you told someone at Oceania, "From now on, you're going to have a problem getting Boral on site because CFMEU don't want them on site." MR CARRILLO: I wouldn't have said that to them. 399 I accept the evidence of Mr Carrillo. The important point to note also is that his evidence (being relevant to February 2013 conduct) was referable in the main to the events and immediate aftermath of the February meeting. This was before the instruction was given at the March meeting. Mr Carrillo's version of events has never altered, and is consistent with both the reality that Boral's supply to Officer was never interrupted and with Mr Carrillo's approach to the task of completion of safety checklists over many months in performing safety checks on all trucks. 400 Recalling the events predate the March meeting, consistently with the message he said he was given (conduct safety checks on all trucks), Mr Carrillo used the union's safety checklist to check concrete trucks. He said: "I still do them today… I do them every day". He explained that he takes pictures and notifies the employer of any trucks he says which are unsafe, but it is the employer who will decide whether they are to be taken off the road. 401 I should mention that Mr Humphrey considered that Mr Carrillo did not inspect trucks at Officer. However, Mr Humphrey was not in a position to say whether Mr Carrillo had undertaken checks of trucks. Mr Humphrey's practice was to attend sites for which he was responsible about once a day for between half an hour and two hours each visit. 402 Mr Carrillo's manner of checking the trucks while using a checklist was able to be done in a manner which did not delay the trucks, and occupied about 10 minutes "while the driver was doing his activities" (transcript, p 476). Mr Carrillo never delayed a truck at the Officer site. 403 Mr Carrillo explained that he checked about 10 trucks at Officer. He then ceased, by reason of the fact it was a small job with the same trucks coming and going and they were all brand new trucks. He kept a record of their serial numbers so that he did not have to check them again in detail. Mr Carrillo filled in checklists for the trucks he checked at Officer. 404 I cannot find that the safety checklists were deployed by Mr Carrillo at the Officer site as a device to delay or disrupt Boral's deliveries. 405 Mr Humphrey reported his conversation with Mr Carrillo to Mr Mark Milano. Mr Mark Milano responded by contacting Mr Mirgiannis, the construction manager for the head builder, Watpac. Mr Mark Milano told him that Oceania were using green star (Envirocrete) concrete, and thus it would not be easy to change suppliers. Mr Mirgiannis replied that he would make some calls and try to 'get to the bottom' of what the issues were. 406 Mr Mirgiannis called Mr Mark Milano back the following day and said Oceania were "okay" to pour the vertical elements. As to the rest of the job, he told Mr Mark Milano to "leave it with me". Mr Mirgiannis later contacted Mr Mark Milano again and said: "we're right to go for the suspended slabs as well" with Boral. While Mr Milano did not ask who Mr Mirgiannis had spoken with, he assumed Mr Mirgiannis had spoken to the union to get a "dispensation" to use Boral "due to green star concrete". 407 Boral supplied Oceania for the rest of the Officer project, right through until May 2014. 408 The notion of a "dispensation" may indicate that the Ban Against Boral was in place already. However, the difficulty with this inference is that there is no evidence of what the dispensation related to – the Ban Against Boral or some other action being taken by the CFMEU. When the evidence is as I have described it, and in particular my acceptance of Mr Carrillo's evidence, and the fact the allegation here only relates to events of February 2013, I cannot conclude that Mr Carrillo implemented the Ban Against Boral as pleaded in paragraph 87 of the Amended Statement of Claim. 409 Therefore, for those reasons, I cannot conclude that the CFMEU attempted to contravene s 45D(1) of the CCA as pleaded in paragraph 93 of the Amended Statement of Claim. Williams Landing 410 The Williams Landing site was a construction site in Williams Landing that involved the construction of a shopping centre. The head contractor was Hacer. Oceania was engaged to perform all of the concrete in situ work, starting in early 2014. Oceania used Boral as a concrete supplier for the job. The shop steward for this site was Mr Bellofiore, although he was not called to give evidence. The ACCC called Mr Mark Milano to give evidence in relation to this site. The ACCC's case 411 The ACCC's case was that, at a site induction meeting at the end of February 2014, shop steward Mr Bellofiore mentioned that if Oceania was planning to use Boral concrete Mr Mark Milano needed to speak with whoever Oceania needed to speak with to get it sorted out. 412 Mr Mark Milano gave evidence that following the meeting he rang Mr Vin Sammartino, one of the directors from Hacer, to seek Mr Sammartino's approval to chase the CFMEU regarding the problem described by Mr Bellofiore. Mr Sammartino said to Mr Mark Milano "You will need to talk to Shaun Reardon to resolve the safety concerns that they are having, or claiming to have, with Boral trucks" (transcript, p 202). 413 Following the telephone conversation referred to immediately above with Mr Sammartino, Mr Mark Milano arranged a meeting with Mr Shaun Reardon. At the meeting, Mr Mark Milano advised Mr Reardon of a commercial advantage that Oceania had been offered and that he therefore really needed to use Boral at the Williams Landing site. Mr Mark Milano gave evidence that in response, Mr Reardon talked about the safety concerns the CFMEU had with Boral and that he was not very happy with Boral because Boral had cost him a lot of money in court with the injunctions and filing proceedings against the CFMEU. Mr Mark Milano gave evidence that he told Mr Reardon that if he was willing to give Oceania approval to use Boral concrete, Mr Mark Milano would ensure Boral had their fleet sorted, and that the safety concerns the CFMEU had were sorted. Mr Reardon said that would talk to Mr Setka about the issue and come back to him. 414 Mr Mark Milano gave evidence that Mr Reardon called him back the following day and said "Boral is right to go" but asked if Oceania could, where possible, use another supplier of concrete on other projects (transcript, p 203). Oceania used Boral concrete for the whole of the Williams Landing site. 415 Mr Damien Milano also gave evidence that whilst he was on the Williams Landing Site, Mr Bellofiore said to him that Organiser Mr MacDonald had mentioned to him (Mr Bellofiore) that he should be checking Boral trucks as they came on site for their roadworthiness or whatever checks that they wished to carry out (transcript, p 106). Mr Bellofiore said that he did not want to check Boral trucks for roadworthiness as he did not believe it was part of his job. Mr Bellofiore said he was not qualified to perform those checks as an OH&S representative and that if he was to check Boral trucks, he would want to check all the trucks on any site and on a large project it would be a very onerous job (transcript, p 106). 416 The ACCC also submitted that Mr Bellofiore was not called to give evidence by the CFMEU, and thus the Court should infer that the evidence of Mr Bellofiore would not have assisted the CFMEU's case. The CFMEU's case 417 The CFMEU made three central submissions: first, the CFMEU submitted that there was no evidence to suggest that Mr Bellofiore attended the Trades Hall meetings of February or March 2013; secondly, the CFMEU submitted that the allegation concerned events which occurred in 2014, about one year after the Trades Hall meeting (which Mr Bellofiore may or may not have attended); and thirdly, the CFMEU submitted that Boral supplied concrete to Oceania for the project without incident for the entire job. 418 In relation to the site induction meeting, the CFMEU countered that whilst it appears possible Mr Bellofiore was half-heartedly reporting an instruction from the union, in the same breath he also said he did not want to cause grief on the job (and no one suggests he did; there is no suggestion Mr Bellofiore checked any trucks and no suggestion that any pours were hindered or delayed). 419 The CFMEU submitted there was no evidence to suggest that Mr Bellofiore was attempting to implement a ban against Boral in concert with the CFMEU. 420 The CFMEU also contended that it was a failure on behalf of the ACCC to not call Mr Bellofiore, and therefore it must be assumed that his evidence would not have assisted the ACCC's case. Consideration 421 Mr Bellofiore was not called by the ACCC. However, as I have indicated, I do not draw any inference against the ACCC in not calling a shop steward. The CFMEU did not call Mr Bellofiore, but whatever inference I may draw in that regard, the failure to call him cannot fill the gap or gaps in proving the allegations made against the CFMEU. 422 Mr Damien Milano said that in June or July 2014, he spoke with Mr Bellofiore, who said that Mr MacDonald had mentioned to him that they should be "tracking Boral trucks as they come onto site for their roadworthiness or whatever checks they wanted to carry out" (transcript, p 106). Mr Damien Milano said that Mr Bellofiore said that if he was going to check Boral trucks, he would want to check all the trucks and on a large project this would be onerous. Mr Damien Milano did not see Mr Bellofiore check any trucks, and no one reported to him seeing Mr Bellofiore check any trucks. 423 The evidence from Mr Damien Milano does not show that Mr Bellofiore acted improperly. Further, the words alleged to have been spoken (as set out in paragraph 184 of the Amended Statement of Claim) do not indicate the implementation of the Ban Against Boral even as a threat. It is also to be remembered that I was not satisfied Mr Bellofiore attended the March meeting to receive the instruction. In that regard, the position is the same as with Mr Pettifer and Mr Vlahogiannis, and unless it can be shown that Mr Bellofiore had the community of purpose to implement the Ban Against Boral, then it will not have been shown that CFMEU acted in concert with Mr Bellofiore as alleged in paragraph 186 of the Amended Statement of Claim. Then, at the same time as Mr Bellofiore appeared to be repeating an instruction from the union organiser to check Boral trucks for "roadworthiness or whatever", he simultaneously conveyed that he was not going to bother to do so, as it would be too onerous. 424 Mr Mark Milano attended a site induction, also attended by Mr Bellofiore. Mr Mark Milano said Mr Bellofiore told him if you are planning to use Boral, he needed to speak to whoever we needed to speak to get it sorted out. Mr Bellofiore did not want to cause grief on the job, and just told Mr Mark Milano to talk to "whoever" to sort it out. No one suggests Mr Bellofiore caused any grief on the site, nor that he checked any trucks and there was no suggestion that any pours were hindered or delayed. 425 After his conversation with Mr Bellofiore, Mr Mark Milano called his cousin, Mr Sammartino, a director of Hacer to "seek his approval to chase the union" and highlighted to him the commercial advantage he had been offered by Boral. Mr Mark Milano told his cousin he really needed to use Boral, because of the financial incentive they offered him. 426 Mr Sammartino suggested that Mr Milano speak to Mr Reardon of the CFMEU. Mr Milano did so. Mr Milano told Mr Reardon about the commercial advantage he had been offered. Mr Mark Milano said that Mr Reardon "highlighted to me the safety concerns they had with Boral and he … he wasn't very happy with Boral because they had cost him a lot of money …. in court injunctions." Mr Reardon highlighted safety concerns, including fire extinguishers, roadworthiness. 427 But Mr Milano pressed his point, stressing that he needed to use Boral, because of the advantage he had been given. Mr Milano responded to Mr Reardon's concerns by saying that if he was willing to give approval to use them, he would ensure Boral had their fleet sorted and that the issues were rectified. Mr Mark Milano said that by promising to Mr Reardon that he would ensure the Boral fleet was "sorted", what he meant was that he would go back to Boral and Mr Lane and "ensure the trucks that were going to be servicing that project met all the criteria that the union were looking for" (transcript, p 215). Mr Mark Milano confirmed that he did relay this message back to Mr Lane. 428 Mr Mark Milano agreed that he had conveyed two messages to Mr Reardon; first, that Oceania really needed to use Boral due to the commercial advantage involved and second that Mr Milano would reiterate safety concerns with Boral and would ask that the trucks coming to their site not have the problems Mr Reardon had referred to. 429 Mr Reardon called Mr Mark Milano back the following day and said he would give them the green light to use Boral, but if possible to use another supplier on other projects. Thereafter, Oceania used Boral for the Williams Landing site. There were no difficulties with supply and Boral supplied over 2,600 cubic metres of concrete to Oceania on this job. 430 Whilst the giving of a "dispensation" is not determinative of whether an attempt was made, it is relevant evidence as to the course of conduct of the CFMEU. 431 In my view, there was no meeting of the minds between the parties alleged to have acted in concert in an attempt to hinder Boral's supply to Williams Landing, if for no other reason than that Mr Bellofiore did not receive the instruction, and if he did, he did not propose to implement it. 432 Mr Milano wanted to use Boral at Williams Landing for commercial reasons, and he did. Mr Mark Milano explained to the Court that while he did not "push back" initially, because of the commercial advantage he had secured using Boral for this job, he decided it was "100% worth" sticking with Boral: T214.17 – 15. He agreed that "when the price is right" he can stick with Boral, and that is what he did: Mark Milano T214.25 – 26. 433 For these reasons, I am not satisfied that Mr Bellofiore implemented the Ban Against Boral as alleged in paragraph 185 of the Amended Statement of Claim, or acted in concert with the CFMEU. In these circumstances, the CFMEU did not attempt to contravene s 45D(1) of the CCA at least as pleaded in paragraph 191 of the Amended Statement of Claim. The omnibus claim (Metropolitan Melbourne Conduct) 434 The ACCC also pleaded further and alternatively that the conduct of the CFMEU and all the aforementioned shop stewards constituted a single contravention of s 45D(1) of the CCA. 435 The pleading of this claim was contained in paragraphs 205 to 209 of the Amended Statement of Claim, including: 206. The Metropolitan Melbourne Conduct hindered or prevented the acquisition of concrete by the customers in paragraphs 26, 29, 36, 39, 42, 46 and 49 above from Boral. Particulars The ACCC repeats the particulars to paragraphs 79, 89, 100, 110, 124, 135, 145, 155, 166, 177, 187 and 201. Contravention arising from the Metropolitan Melbourne Conduct – Secondary boycott 207. Each of the CFMEU and each of the Shop Stewards referred to in paragraphs 205.2 above engaged in the Metropolitan Melbourne Conduct for the purpose (or alternatively, for purposes that included the purpose) of causing substantial loss or damage to the business of Boral. Particulars The ACCC repeats the particulars to paragraphs 80, 91, 101, 112, 125, 136, 146, 157, 167, 178, 189 and 202. 208. The Metropolitan Melbourne Conduct would have, or was likely to have, had the effect of causing substantial loss or damage to the business of Boral. Particulars That the Metropolitan Melbourne Conduct would have, or was likely to have, had the above consequence is to be inferred from the matters referred to in the particulars to paragraphs 81, 92, 102, 113, 126, 137, 147, 158, 168, 179, 190 and 203. 209. By reason of the matters referred to in paragraphs 205 to 208, the CFMEU contravened section 45D(1) of the Act. 436 This claim was explained by the ACCC as being an alternative claim only, going effectively to showing the Ban Against Boral was likely to have the effect of causing substantial loss and damage to the Boral business as a whole. 437 It was made clear that no allegation was being made relating to any conduct between each shop steward at each site. 438 I do not need to delay dealing with this omnibus claim. I accept that when considering the likelihood of suffering substantial loss and damage, the Court should consider the whole of Boral's business, even if the conduct relates to one site. The Ban Against Boral was to be implemented in the Melbourne Metropolitan Area – the conduct of the CFMEU and the relevant shop steward in relation to one site could have impacted on the Boral business as a whole, and this potential impact needed to be considered. I have already dealt with this issue in dealing with the issue of loss and damage. CONCLUSION 439 The ACCC has only been successful in demonstrating on the evidence two contraventions, namely in respect of the Hawthorn and Richmond sites. 440 It was understood the Court would provide these reasons on a confidential basis to the parties and their legal advisers, to consider the extent of their publication in view of the current criminal proceedings taking place relating to this proceeding. 441 The Court will need to consider this issue, and make further directions for the future conduct of this proceeding now the liability issues have been determined. I certify that the preceding four hundred and forty-one (441) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 5 October 2017