BHP Billiton Iron Ore Pty Ltd v National Competition Council

BHP Billiton Iron Ore Pty Ltd (BHPBIO) appealed to the High Court of Australia concerning the National Competition Council's (NCC) declaration of a railway line service as a service to which third parties could seek access under Part IIIA of the *Trade Practices Act 1974* (Cth). The dispute centred on whether the access sought by Fortescue Metals Group Ltd (Fortescue) to BHPBIO's railway line constituted the "use of a production process," which is excluded from the definition of "service" under section 44B of the Act.

The High Court was required to determine whether the use of BHPBIO's railway line and associated infrastructure by Fortescue, as an access seeker, could be characterised as the "use of a production process" within the meaning of section 44B(1) of the *Trade Practices Act 1974* (Cth). This involved considering whether Fortescue's intended use of the railway line was integral to BHPBIO's own production process, thereby falling within the exclusion, or if it was a distinct use of an infrastructure facility.

The Court reasoned that while BHPBIO uses the railway line as an integral part of its Continuous Stockpile Management System (CSMS) for the production of marketable iron ore commodities, this did not mean that any use of the railway line by a third party, such as Fortescue, would also be characterised as the use of BHPBIO's production process. The Court accepted that the ordinary meaning of "production process" involves the creation of a marketable commodity. However, it held that Fortescue's application sought access to the use of a facility, not to participate in or utilise BHPBIO's specific production process. Therefore, Fortescue's intended use of the railway line did not fall within the exclusion for the "use of a production process" and did not deny the operation of the definition of "service" under section 44B.

The appeals were dismissed with costs.