Application by New South Wales Minerals Council (No 2)

The New South Wales Minerals Council sought an order from the Australian Competition Tribunal (the Tribunal) for the National Competition Council (the NCC) to provide specified documents. The Tribunal was asked to issue a notice under sections 44K(6A) or 44ZZOAAA(5) of the Competition and Consumer Act 2010 (Cth) (the Act). The contention was that the documents should have been produced by the designated Minister under section 44ZZOAAA(3)(c) of the Act. The Tribunal was required to determine whether it was appropriate to grant the application for the production of the documents, and if so, under which section of the Act. The Tribunal also needed to consider whether the delay in making the application was unreasonable.

The Tribunal allowed the application in part. It concluded that the production of the documents was fair to both parties and would not cause the hearing to be adjourned. The Tribunal issued a notice to the NCC under section 44K(6A) requiring it to provide the Pro Forma Pricing Deeds. Additionally, the Tribunal issued a notice to Port Network Operators (PNO) under section 44ZZOAAA(5) requesting it to provide documents relevant to the operation of the Pro Forma Pricing Deeds or the extent to which PNO had entered into such deeds with Port users. The Tribunal refused the NCC’s informal application and gave consequential directions.

The Tribunal determined that the application was not unreasonable given the circumstances. The Tribunal found that the documents were necessary for a fair review of the Minister’s decision not to declare a service under the Act. The Tribunal also noted that the delay in making the application did not prejudice the NCC or PNO. The Tribunal’s decision was based on the principles of procedural fairness and the need for a thorough review of the Minister’s decision.