Glencore Coal Assets Australia Pty Limited v Port of Newcastle Operations Pty Limited

[2025] NSWSC 167

Supreme Court

New South Wales

Medium Neutral Citation:

Glencore Coal Assets Australia Pty Limited v Port of Newcastle Operations Pty Limited [2025] NSWSC 167

Hearing dates:

7 March 2025

Date of orders:

10 March 2025

Decision date:

10 March 2025

Jurisdiction:

Equity - Commercial List

Before:

Williams J

Decision:

See orders at [41].

Catchwords:

CIVIL PROCEDURE — Cross-vesting — Application for transfer of proceedings to the Federal Court of Australia – Where the proceedings involve interpretation and application of an access dispute determination made under Part IIIA of the Competition and Consumer Act 2010 (Cth) in the context of a dispute concerning liability to pay wharfage charges under Part 5 of the Ports and Maritime Administration Act 1995 (NSW) – Whether transfer of proceedings is in the interests of justice under s 5(1)(b)(ii)(C) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Pt IIIA, ss 44V, 44ZZD

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5(1)

Ports and Maritime Administration Act 1995 (NSW), ss 48, 61, 62, 67, 68, 70

Cases Cited:

Comino v Kremetis (2023) 110 NSWLR 224; [2023] NSWSC 32

Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal (2020) 382 ALR 331; [2020] FCAFC 145

Hadid v Sabouh [2023] NSWSC 483

Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565; [2021] HCA 39

Sultan v Dabboussi [2024] NSWSC 683

Valcevski v Valcevski (2007) 70 NSWLR 36; [2007] NSWSC 440

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

Glencore Coal Assets Australia Pty Limited
(ACN 163821298) (Plaintiff)
Port of Newcastle Operations Pty Limited (ACN 165332990) (Defendant)

Representation:

Counsel:
Mr M Izzo SC with Mr J Kennedy (Plaintiff)
Mr D Roche SC with Mr A d’Arville (Defendant)

Solicitors:
Quay Law Partners (Plaintiff)
Clayton Utz (Defendant)

File Number(s):

2025/48717

Publication restriction:

N/A

Judgment

1. The plaintiff, Glencore Coal Assets Australia Pty Limited (Glencore), is a producer of coal in the Hunter Valley in New South Wales. The defendant, Port of Newcastle Operations Pty Ltd (PNO), is the operator of the Port of Newcastle, which is a “designated port” under the Ports and Maritime Administration Act 1995 (NSW) (the PMA Act).

2. Part 5 of the PMA Act provides for the imposition of various port charges, including navigation service charges under Division 2 of Part 5 and wharfage charges under Division 5 of Part 5.

3. Section 61 in Division 5 of Part 5 of the PMA Act provides:

“61 Wharfage charge

(1) A wharfage charge is payable in respect of availability of a site at which stevedoring operations may be carried out.

(2) Unless the regulations otherwise provide, the charge is to be calculated by reference to the quantity of cargo loaded or unloaded at the site.

(3) The charge is payable—

(a) in the case of cargo that is unloaded at the site—by the person who, immediately after it is unloaded, is the owner of the cargo, and

(b) in the case of cargo that is loaded at the site—by the person who, immediately before it is loaded, is the owner of the cargo.

(4) To the extent, however, that the charge is not paid by the person indicated in subsection (3) as liable for its payment, the charge is payable by the person who, at the time payment is demanded by the relevant port authority, is the owner of the cargo.”

4. Section 62 of the PMA Act relevantly provides that the relevant port authority – in this case, PNO – may fix the wharfage charges payable under s 61.

5. Section 67 of the PMA Act provides:

“67 Agreements in respect of charges

(1) The relevant port authority may enter into an agreement with a person liable to pay any kind of charge under this Part.

(2) Such an agreement may make provision for or with respect to—

(a) fixing the amount of any charge payable by the person to the relevant port authority, and

(b) any other matter which the relevant port authority is permitted by or under this Part to determine in respect of the charge, and

(c) any right or privilege which by or under this Part accrues to the person liable to pay the charge, or which the relevant port authority may confer on the person.

(3) To the extent that provision is so made, the agreement displaces any determinations of the relevant port authority in relation to the charge or to the matter, right or privilege concerned.”

6. The “owner” of cargo by whom wharfage charges are payable under s 61 of the PMA Act is determined in accordance with s 48, and includes any person who has represented to the relevant port authority that they have the functions or accept the obligation to exercise the functions of the owner of the cargo.

7. Section 68 of the PMA Act provides that a charge under Part 5 is payable on demand by the relevant port authority, or at such time as the relevant port authority may determine, and is a debt due to the relevant port authority by the person liable to pay it recoverable in any court of competent jurisdiction. The relevant port authority may charge interest on overdue payments pursuant to s 70 of the PMA Act.

8. Glencore and PNO are parties to a final determination of the Australian Competition and Consumer Commission pursuant to s 44V in Part IIIA of the Competition and Consumer Act 2010 (Cth) (the CCA Act) on 18 September 2018, as varied by a determination of the Australian Competition Tribunal on 5 April 2022, following an initial review by the Australian Competition Tribunal and appeals to the Full Court of the Federal Court of Australia and the High Court of Australia which resulted in the matter being remitted to the Tribunal to be determined according to law (the Determination). [1]

   1. Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal (2020) 382 ALR 331; [2020] FCAFC 145; Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565; [2021] HCA 39.

9. The Determination was made in respect of the following declared shipping channel service (defined as “the Service”):

“The provision of the right to access and use the shipping channels (including berths next to wharves as part of the channels) at the Port, by virtue of which vessels may enter a Port precinct and load and unload at relevant terminals located within the Port precinct and then depart the Port precinct.”

10. Clause 2 of the Determination defined its scope as follows:

“2. Scope

2.1 The scope of the determination includes the terms and conditions of access:

(a)   where Glencore, either directly or by agent, charters a vessel to enter the Port precinct and load Glencore coal, and

(b) where Glencore makes a representation to PNO of the kind referred to in section 48(4)(b) of the Ports and Maritime Administration Act 1995 (the PMAA) that it has the functions of the owner of a vessel, or accepts the obligation to exercise those functions, in order to enter the Port precinct and load Glencore coal.

2.2 For the avoidance of doubt, the determination does not apply to:

(a) the terms and conditions of access to apply in respect of vessels carrying coal that have not been chartered by Glencore or in respect of which Glencore has not made a representation of the kind referred to in sections 48(4)(b) of the PMAA

(b)   terms and conditions of access for vessels other than those calling at the coal terminals at the Port, and

(c)   any charges imposed by PNO other than the Navigation Service Charge and the Wharfage Charge.”

11. Clause 3.1 of the Determination required Glencore to provide 48 hours’ prior written notice of its intention to use the Service under the terms of the Determination, failing which “standard terms of access” would apply.

12. Clauses 4 to 9 of the Determination set out the price terms that would apply to Glencore’s use of the Service. Clause 5 specified a wharfage charge amount per revenue tonne as at 1 January 2018, which was to be indexed annually by reference to CPI. Clause 6 set out the amount of a navigation service charge as at 1 January 2018, which was to be reviewed annually in accordance with clause 7 and reviewed every five years in accordance with clause 8.

13. Clauses 10 to 15 of the Determination set out the non-price terms that would apply to Glencore’s use of the Service.

14. It appears that Glencore did not seek to invoke the Determination by giving notice under clause 3.1, at any time prior to December 2024.

15. On 16 December 2024, Glencore gave written notice to PNO identifying ten companies exporting coal through the Port of Newcastle which were the owners of that coal immediately before it was loaded onto vessels at the Port (cf s 61(3)(b) of the PMA Act). That notice stated:

“(1) GCAA [referring to Glencore] notifies PNO that it will be performing the stated cargo owner functions as required by the Act and in accordance with the terms of and with the benefit of the Determination which sets the wharfage charges payable by GCAA in these circumstances.

(2) GCAA hereby represents to PNO, under section 48(4)(b) of the Act, that GCAA has the functions of the owner of any Relevant Glencore Company Coal Cargo and accepts the obligation to exercise those functions, including the obligation to pay the applicable wharfage charges; and

(3) in accordance with clause 3.1 of the Determination, on and from 1 January 2025 it intends to use the Service the subject of the Wharfage Charge (as defined in the Determination) with respect to any Relevant Glencore Company Coal Cargo, under the terms of the Determination. For the avoidance of doubt, this is not a notice that GCAA intends to use the Service the subject of the Navigation Service Charge under the terms of Determination.”

16. In the correspondence between the parties that followed during the period between 20 and 24 December 2024, PNO disputed that Glencore’s 16 December 2024 letter was a valid notification under clause 3.1 of the Determination of Glencore’s intention to use the Service. According to PNO, the Service that is the subject of the Determination is not divisible into components referable to the different wharfage charges and navigation service charges payable under the Determination. According to Glencore, however, it is open to it to invoke the Determination in its capacity only as cargo owner (in which case only the wharfage charges in the Determination are applicable) or only as vessel owner (in which case only the navigation service charges in the Determination apply). It is not compelled to act in both capacities if it wishes to invoke the Determination.

17. There is no dispute that Glencore was entitled to make the representation under s 48(4)(b) of the PMA Act in its 16 December 2024 letter, thereby bringing itself within the definition of the “owner” of cargo. The dispute is whether the wharfage charges payable by Glencore under s 61 of the PMA Act in respect of that cargo are payable at the rates determined by PNO under s 62 of that Act (being the “standard terms of access” that apply if no notice is given under clause 3.1 of the Determination), or at the rates calculated in accordance with the Determination by reason of s 67 of that Act. [2]

    2. Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565; [2021] HCA 39 at [42]-[43].

18. The “standard terms” wharfage rates are significantly higher than the wharfage rates that would be payable under the Determination if it operates in the manner for which Glencore contends.

19. As I have alluded to earlier in these reasons, the Determination, as varied on 5 April 2022, represents the end result of a five-year course of litigation between Glencore and PNO before the Australian Competition Tribunal, the Federal Court of Australia, and the High Court of Australia.

20. On 6 February 2025, Glencore commenced the present proceedings in the Commercial List of the Equity Division of this Court, seeking the following relief:

“1. A declaration that, for so long as the Glencore Notice and Determination are in force, wharfage charges for vessels departing on and from 1 January 2025 payable by the plaintiff to the defendant for loading cargo of a Relevant Glencore Company are fixed at the rate specified in clauses 5.1 and 5.2 of the Determination.

2. Further or in the alternative, a declaration that the invoices issued by the defendant to the plaintiff on and from 9 January 2025, in respect of wharfage charges payable by the plaintiff to the defendant for loading cargo of a Relevant Glencore Company for vessels departing on and from 1 January 2025, are invalid to the extent such invoices are for an amount that exceeds the rate specified for wharfage charges in clauses 5.1 and 5.2 of the Determination.

3. Further or in the alternative, a declaration that, as at the date of the declaration, no outstanding amounts are due and owing by the plaintiff to the defendant in respect of any invoices issued since 9 January 2025 concerning wharfage charges for cargo on vessels departing on and from 1 January 2025.

4. Further or in the alternative, a declaration that, as at the date of the declaration, no interest is payable by the plaintiff to the defendant in respect of any invoices issued since 9 January 2025 concerning wharfage charges for cargo on vessels departing on and from 1 January 2025.”

21. The claims for relief in the Summons also included in prayer 5 a further or alternative claim for the following orders and declarations under s 44ZZD(1) of the CCA Act, read with s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth):

1. declarations in the terms of prayers 1 to 4 of the Summons;

2. an order restraining PNO from claiming or seeking to collect wharfage charges, or issuing invoices to Glencore for wharfage charges, other than at the rate specified in clause 5 of the Determination; and

3. an order requiring PNO to charge wharfage rates to Glencore at the rate specified in clause 5 of the Determination.

22. Glencore no longer presses prayer 5.

23. By notice of motion filed on 21 February 2025, PNO seeks an order transferring the proceedings to the Federal Court of Australia pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (the NSWCross-Vesting Act), which provides:

“(1) Where—

(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court, and

(b) it appears to the Supreme Court that—

(i) (Repealed)

(ii) having regard to—

(A) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Federal Circuit and Family Court of Australia, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Federal Circuit and Family Court of Australia,

(B) the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

(C) the interests of justice,

it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be,

(iii) (Repealed)

the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be.”

24. Glencore opposes the transfer of the proceedings.

25. The principles applicable to the determination of the application under s 5(1)(b) were not the subject of any real dispute. As both parties submitted, the Court is required to consider each of the matters in paragraphs (A), (B) and (C) of s 5(1)(b)(ii), but those matters are not cumulative in the sense that each of them must be satisfied in order to enliven the statutory power to transfer the proceedings. [3] The relevant statutory test is whether, having regard to those matters, it is “more appropriate” that these proceedings be determined by the Federal Court of Australia. This is not to be substituted with a test of whether this Court or the Federal Court is “the more natural forum”. The term “natural forum” has been used in some cases under s 5(1)(b) as a means of expressing that it is more appropriate for the particular proceedings to be heard in the Federal Court (or the Federal Circuit and Family Court of Australia, as the case may be) having regard to the matters in s 5(1)(b)(ii)(A)-(C). [4] However, the use of the term in those cases should not be understood as formulating a test that departs from the language of the statute.

    3. Hadid v Sabouh [2023] NSWSC 483 [84]-[92] (Meek J).

    4. See, for example, Valcevski v Valcevski (2007) 70 NSWLR 36; [2007] NSWSC 440 at [69] (Brereton J), Comino v Kremetis (2023) 110 NSWLR 224; [2023] NSWSC 32 at [70] (Chen J), and my own judgment in Sultan v Dabboussi [2024] NSWSC 683 at [26]-[27] and [34].

26. Senior counsel for PNO accepted (correctly, in my opinion) that Glencore’s claims for relief in prayers 1 to 4 of the Summons are proceedings capable of being instituted in this Court, and are within the jurisdiction of this Court, apart from any law of the Commonwealth relating to the cross-vesting of jurisdiction. It follows that s 5(1)(b)(ii)(A) and (B) of the NSW Cross-Vesting Act do not apply, notwithstanding that the proceedings raise an issue about the interpretation and application of the Determination which involves a matter arising under a law of the Commonwealth, as senior counsel for Glencore properly accepted. PNO’s application to transfer the proceedings therefore turns on whether the interests of justice render it more appropriate that the proceedings be determined by the Federal Court.

27. I accept the submission made on behalf of Glencore that the dispute that is the subject of these proceedings has no one “true” character. On the one hand, the proceedings can be characterised as a dispute arising under New South Wales legislation about whether Glencore is liable under s 61 of the PMA Act to pay wharfage charges at rates determined by PNO under s 62 of that Act. On the other hand, the outcome of that dispute will turn on whether the Determination, properly interpreted, operates to permit Glencore to give notice of use of the Service that is the subject of the Determination only insofar as that Service gives rise to wharfage charges. The proceedings can therefore also be characterised as a dispute about the interpretation and application of the Determination, even though that dispute has arisen out of PNO’s reliance on s 61 of the PMA Act as rendering Glencore liable for “standard” wharfage charges determined by PNO under s 62 of that Act.

28. For those reasons, I reject the submission made on behalf of PNO that prayer 5 of the Summons, which is no longer pressed, reveals the “true” character of Glencore’s case as a claim that PNO is acting contrary to the Determination. I accept the submission made by senior counsel for Glencore that it no longer presses prayer 5 because it is unnecessary to do so, in circumstances where it is not suggested that either party would refuse to act in accordance with declarations made by a court reflecting the legal position in relation to wharfage charges that flows from its interpretation of the Determination.

29. I acknowledge that PNO is likely to file a cross-claim in these proceedings, whether they remain in this Court or are transferred to the Federal Court. That cross-claim is likely to involve claims for declaratory relief to the opposite effect of the declarations sought by Glencore in prayers 1 to 4 of the Summons. To the extent that PNO wishes to claim additional forms of relief, those claims are likely to involve a claim for payment of a debt due under s 68 of the PMA Act, rather than a claim for injunctive relief under s 44ZZD of the CCA Act, as senior counsel for PNO candidly acknowledged. That is because s 44ZZD would apply on an application by PNO only if the Federal Court were satisfied that Glencore had engaged in, or was engaging or proposing to engage in, conduct that contravened the Determination. As I have explained earlier in these reasons, and as senior counsel for Glencore submitted, the central contention underpinning PNO’s defence of these proceedings (and its prospective cross-claim) is that the Determination simply does not apply because Glencore has not given a valid notice under clause 3.1 of the Determination. For those reasons, any cross-claim that may be filed by PNO will not have any material bearing on the nature of these proceedings for the purpose of determining whether the interests of justice render it more appropriate that the proceedings be determined by the Federal Court.

24. As both parties accepted, the court that determines these proceedings will interpret the Determination by considering the terms of the Determination itself, and potentially also the reasons given by:

1. the Australian Competition and Consumer Commission for making the initial determination,

2. the Australian Competition Tribunal for its initial review of that determination,

3. the Full Court of the Federal Court on the application for judicial review of the Tribunal’s decision,

4. the High Court of Australia in determining the appeal from the Full Court of the Federal Court, and

5. the Tribunal for varying the determination when the High Court remitted the matter to the Tribunal.

31. It was submitted on behalf of PNO that it will be necessary to consider all of those reasons, and that it may also be necessary to consider the submissions made by the parties to the Tribunal, the Full Court, and the High Court. Senior counsel for Glencore accepted (correctly, in my opinion) that it would be permissible for the court determining these proceedings to have regard to all of that material in the course of interpreting the Determination and in resolving a dispute between the parties about whether the substance of the dispute in these proceedings – Glencore’s contention that it is entitled to invoke the Determination in respect of the Service to which wharfage charges apply only – has already been determined by the High Court.

32. Senior counsel for PNO took the Court to extracts from that material during the course of the hearing of the transfer application with a view to demonstrating the complexity of the subject matter. It was submitted that the Federal Court of Australia has developed subject matter expertise in respect of access disputes under Part IIIA of the CCA Act and, in particular, in relation to the approach to pricing in the context of such disputes. Reference was made to the desirability of a single coherent body of law in relation to matters of such economic importance. It was submitted that this, together with the long history of disputes between the parties in the Australian Competition Tribunal, the Federal Court and the High Court, rendered it more appropriate that these proceedings be determined by the Federal Court. In the context of this submission, the present proceedings were described as a continuation or resumption of long-running litigation under Part IIIA.

33. I reject the submission that the nature or complexity of the material to be considered by the court which determines these proceedings falls within specialist expertise held by the Federal Court which is lacking in this Court. The court determining these proceedings will not make any determination about the construction of any provision of Part IIIA of the CCA Act, or about terms of access or pricing. The court will merely be interpreting the Determination that has already been made. I reject PNO’s submissions characterising these proceedings as a continuation or resumption of the Part IIIA litigation. The Part IIIA litigation ended with the making of the varied Determination on 5 April 2022. It is not continued by the present proceedings, although it forms part of the factual background out of which these proceedings arose. PNO’s submission that the Federal Court has previously been seized with the dispute that is now the subject of these proceedings is, with respect, wrong.

34. As senior counsel for Glencore submitted, the material to which the Court was taken during PNO’s submissions is of a kind that this Court is perfectly well equipped to read and understand for the purpose of interpreting the Determination, and for the purpose of resolving the dispute about what has already been determined in the earlier proceedings (which I understand to be akin to an issue estoppel defence intended to be raised by PNO in these proceedings). That exercise is no more complex than similar exercises regularly undertaken by Judges of this Court, particularly when sitting in the Commercial List of the Equity Division, in the course of resolving a wide variety of disputes, including disputes involving the construction of commercial contracts, statutes and other instruments.

35. PNO does not rely on the location of documents, witnesses or legal representatives as supporting the transfer of the proceedings to the Federal Court.

36. Both parties desire that these proceedings should be heard and determined with reasonable expedition.

37. There is no reason to think that this is more likely to occur in the Federal Court than in this Court. As senior counsel for Glencore submitted, there is an air of unreality to PNO’s submission that the Federal Court is more likely to have familiarity with the history of the matter by reason of having heard and determined the previous proceedings, and that this will aid the efficient determination of the present proceedings. The Federal Court is comprised of individual Judges who do not have a collective institutional memory. Even assuming that the present proceedings, if transferred to the Federal Court, would be heard and determined by a Judge who was a member of the Full Court which heard and determined the appeal from the Australian Competition Tribunal in 2020, it is unrealistic to think that the Judge would retain a detailed memory of that history five years later.

38. Glencore did not submit that there was any reason to think that the progress of the proceedings would be slower in the Federal Court, except for a very minor delay that would be likely to be occasioned by the transfer process.

39. For those reasons, questions of efficiency are a neutral factor when considering the interests of justice in the context of the present application.

40. For all of those reasons, I do not consider that it is in the interests of justice that the proceedings be heard and determined in the Federal Court. Nor do I consider that it is more appropriate that the proceedings be heard and determined by the Federal Court. PNO’s transfer application must therefore be dismissed. Neither party indicated that they would wish to be heard in relation to costs, and there is no reason why costs should not follow the event.

41. The orders of the Court are therefore as follows:

1. Order that the defendant’s notice of motion filed on 21 February 2025 is dismissed.

2. Order that the defendant is to pay the plaintiff’s costs of the notice of motion on the ordinary basis, as agreed or assessed.

**********

Endnotes

Decision last updated: 10 March 2025