BHP Billiton Iron Ore Pty Ltd v National Competition Council and Anor

The Full Federal Court heard an appeal by BHP Billiton Iron Ore Pty Ltd (BHP) against a decision of the National Competition Council (NCC) and the Australian Competition and Consumer Commission (ACCC). The dispute concerned BHP's application for a declaration that its iron ore railway infrastructure in the Pilbara region of Western Australia was a "service" for the purposes of Part IIIA of the *Competition Policy Reform Act 1995* (Cth) (the Act). Such a declaration would have allowed third parties to seek access to this infrastructure.

The central legal issue before the Full Federal Court was whether BHP's railway infrastructure constituted a "service" as defined by section 44B of the Act. This required the Court to consider whether the infrastructure was used to provide a service, and if so, whether that service was of a kind that could be declared under the Act. The Court also had to determine whether the infrastructure itself, or the transportation of iron ore using it, was the relevant "service."

The Court reasoned that the infrastructure, being a physical asset, did not itself provide a service. Instead, the service was the transportation of iron ore. However, the Court found that the Act contemplated services that were provided by a person or entity, not merely the use of infrastructure. Because BHP did not provide a transportation service to third parties, but rather used its own infrastructure for its own operations, the railway infrastructure did not meet the definition of a "service" for the purposes of Part IIIA of the Act. The Court applied the principles of statutory interpretation, focusing on the plain meaning of the words in the Act and the legislative intent behind the access regime.

The appeal was dismissed, with the Full Federal Court affirming the decision of the National Competition Council.