Application by Port of Newcastle Operations Pty Ltd

In the matter of an application by Port of Newcastle Operations Pty Ltd for review of a determination made by the Australian Competition and Consumer Commission (ACCC) in respect of an access dispute between Glencore and the Port of Newcastle Operations (PNO), the Federal Court of Australia was tasked with reviewing the arbitration process and the final determination made by the ACCC. The dispute concerned the quantum of charges levied by PNO for access to its infrastructure and the proper scope of application of those charges, specifically the Navigation Service Charge and the Wharfage Charge. The parties disagreed on the interpretation of the declared service, the appropriate scope of the arbitration determination, and the method of calculating the regulated asset base (RAB) for the charges.

The court addressed several key legal issues, including the interpretation of the declared service, the scope of the arbitration determination, the appropriate method for calculating the RAB, and the impact of user contributions on the RAB calculation. The court also considered whether a true-up mechanism should be applied to account for differences between actual and forecasted capital expenditures and whether PNO could recover costs of non-coal assets through the arbitrated charges.

The court found that the absence of a true-up mechanism better aligned with the statutory provisions. It decided that no allowance should be made for user contributions in calculating the RAB. The court varied the Final Determination by altering the scope of the determination and setting a new Navigation Service Charge of $1.0058 per gross revenue tonne as at 1 January 2018. The court concluded that the Final Determination should only be varied to reflect these changes, without making any other modifications to the agreed access pricing model.

The court's final orders were to vary the Final Determination by deleting and replacing specific clauses to reflect the Tribunal's determinations. The scope of the determination was narrowed to apply only to vessels owned or chartered by Glencore that load Glencore coal. The Navigation Service Charge payable by Glencore was set at $1.0058 per gross revenue tonne as at 1 January 2018. This decision ensured that the scope of the arbitration determination and the charges imposed were consistent with the statutory requirements and the specific circumstances of the parties involved.