Glencore Coal Assets Australia Pty Ltd v Port of Newcastle Operations Pty Ltd (No 2)

[2025] NSWSC 769

Supreme Court

New South Wales

Medium Neutral Citation:

Glencore Coal Assets Australia Pty Ltd v Port of Newcastle Operations Pty Ltd (No 2) [2025] NSWSC 769

Hearing dates:

7 July 2025

Date of orders:

17 July 2025

Decision date:

17 July 2025

Jurisdiction:

Equity - Commercial List

Before:

Peden J

Decision:

See [103]

Catchwords:

COMMERCE – Shipping – Imposition of wharfage charges by port authority – Quantification of imposable wharfage charges – Interpretation of determination of Australian Competition Tribunal – Whether plaintiff entitled to rates as determined by Tribunal on proper interpretation of determination – Whether plaintiff entitled to pay determined wharfage charge without also paying determined navigation service charge – Plaintiff entitled to rates as determined – Scope of determination required combined use of wharfage charge and navigation service charge

JUDGMENTS AND ORDERS – Interest – Award of on judgment – On order for payment of outstanding wharfage charges – Whether defendant’s evidence sufficient to establish entitlement to interest on outstanding wharfage charges at maximum statutory rate – Evidence insufficient – Defendant did not establish entitlement to interest

Legislation Cited:

Competition and Consumer Act 2010 (Cth) ss 44H, 44S, 44V, 44ZP, 44ZR, pt IIIA

Ports and Maritime Administration Act 1995 (NSW) ss 48, 51, 61, 62, 67, 70

Ports and Maritime Regulation 2021 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) r 6.12(8)

Cases Cited:

Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241

Application by Port of Newcastle Operations Pty Ltd (No 3) [2022] ACompT 2

Asia Pacific International Pty Ltd v Dalrymple [2000] 2 Qd R 229

Australian Communication Exchange Ltd v Deputy Federal Commissioner of Taxation (2003) 77 ALJR 1806

Blackford & Sons (Calne) Ltd v Borough of Christchurch [1962] 1 Lloyd’s Rep 349

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 499

Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal (2020) 280 FCR 194

Kucks v CSR Ltd (1996) 66 IR 182

Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Works [2012] FCA 1010

Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council [2007] QCA 326

Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 1) [2005] 2 Qd R 174

Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565

Rendell v Paul (1979) 22 SASR 459

Saul v Menon [1980] 2 NSWLR 314

Toyota Motor Corp Australia Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (1999) 93 IR 95

Category:

Principal judgment

Parties:

Glencore Coal Assets Australia Pty Ltd (Plaintiff)
Port of Newcastle Operations Pty Ltd (Defendant)

Representation:

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

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

File Number(s):

2025/00048717

Publication restriction:

Nil

JUDGMENT

1. Glencore Australia Pty Ltd has disputed invoices issued to it by Port of Newcastle Operations Pty Ltd (PNO) when selling its coal through the Port of Newcastle. Since January 2025, Glencore has sought to take advantage of a wharfage charge price determined on 5 April 2022 by the Australian Competition Tribunal (Determination). PNO claimed that price is not available to Glencore under the Determination, and it must instead pay PNO’s invoiced standard rates, which are higher.

2. The primary issue is the proper construction of the Determination, considered in the context of the legislative framework that governs the operation and use of the Port, and the long history of the parties’ dispute. For the reasons that follow I prefer PNO’s construction.

3. A complete version of the Determination is included as an annexure to these reasons.

Background

4. Glencore is a wholly owned subsidiary of Glencore plc, one of the world’s largest natural resource companies. Together with other Glencore companies, it owns, manages, or has a joint venture interest in, coal mines throughout the Hunter Valley in New South Wales. The Glencore companies sell coal to customers for export through the port. Typically, they are free on board (FOB) sales; Glencore sends the coal by rail to the port and loads it onto a vessel organised by the buyer for export. Usually, a buyer’s vessel enters the port empty and sails up the shipping channels and berths at a terminal. Then the coal is loaded and the vessel sails out.

5. Until about May 2014, the port was owned and operated by a state-owned entity. Then the port was privatised and PNO now leases the port and is the “port operator” within the meaning of the Ports and Maritime Administration Act 1995 (NSW) (the PMAA). Its functions include managing the leased areas of the port, and maintenance of port assets. A separate state-owned entity, the Port Authority of NSW, undertakes port safety functions.

6. Under the PMAA, PNO may impose various charges on users for different services at the port, including pilotage charges, port cargo access charges, site occupation charges, berthing charges, and port infrastructure charges. There was no evidence about whether Glencore has ever been liable for those charges through its use of the port.

7. In addition, PNO imposes two other charges during the process for Glencore to export coal from the port relevant to this dispute:

1. A “navigation service charge” (NSC), which is charged on each entry into the port to the “owner” of a vessel, by reference to the gross tonnage of the vessel, pursuant to s 51 PMAA.

2. A “wharfage charge” (WC), which is charged per tonne of cargo to the “owner” of the cargo immediately before it is loaded onto a vessel, pursuant to s 62 PMAA.

8. The “owner” of a vessel or cargo in both sections is defined in section 48, which provides:

48    Meaning of “owner” of vessel or cargo

(1)    In this Act, owner of a vessel or cargo means (subject to this section) the person who owns the vessel or cargo.

(2)    A reference in this Act to the owner of a vessel includes a reference to—

(a)    a person registered as the vessel’s owner in the relevant authority under the marine legislation or the National law or other certificate of registry for the vessel, or

(b)    a person who has chartered the vessel.

(3)   A reference in this Act to the owner of a vessel or cargo includes a reference to a joint owner of the vessel or cargo.

(4)    A reference in this Act to the owner of a vessel or cargo includes a reference to any person who, whether on the person’s own behalf or on behalf of another—

(a)    exercises any of the functions of the owner of the vessel or cargo, or

(b)    represents to the relevant port authority that the person has those functions or accepts the obligation to exercise those functions.

(5)    For the purposes of this Act, a person does not cease to be an owner of a vessel because the vessel is mortgaged, chartered, leased or hired to another person.

9. PNO usually fixes its charges annually and publishes them on its website, together with its standard terms and conditions.

10. However, PNO can also make agreements with persons liable to pay the charges under s 67(1) PMAA. Further, charges may be determined under Part IIIA, Division 3 of the Competition and Consumer Act 2010 (Cth) (CCA). Such a determination operates like an agreement: Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565 at 583 (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ) (Glencore – High Court).

11. Under the CCA a “service” may be declared by the designated Minister where access to a service promotes a material increase in competition in a market, other than the market for the service, and where it would be uneconomical for anyone to develop another facility to provide the service, and where the facility is of national significance: s 44CA(1) CCA.

12. In 2015, Glencore’s parent company obtained a declaration that PNO provided a “Service” at the port within the meaning of the CCA:

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.

13. In November 2016, Glencore notified the Australian Competition and Consumer Commission (the Commission) of an access dispute concerning the Service under s 44S CCA:

Although PNO is currently providing access (and maintaining that it will always do so) the terms of access, in particular the navigation service charges for coal vessels, are unreasonable and Glencore is seeking to negotiate with PNO on reducing these charges to approximately their pre-privatisation levels … Glencore submits that, at the very least, an economically efficient charge is likely to be significantly lower than the rates which are currently being applied by PNO.

14. Glencore sought:

… arbitration by the ACCC on the reasonable level of navigation service charges, and access terms, to be imposed by PNO on coal vessel users of the Service.

15. The Commission’s determination could deal with “any matter relating to access by the third party to the service, including matters that were not the basis for notification of the dispute”: s 44V(2) CCA. Therefore, it may have been possible to have any PNO charges determined, as far as they “related” to access to the declared service.

16. The parties were in dispute about appropriate terms for access to the Service and in particular the NSC, but also the “terms of access” or scope of the determination, namely when Glencore could take advantage of the NSC, as determined. Glencore submitted there should be a very wide scope, so that the determination would extend to “vessels carrying coal that [had] not been chartered by Glencore or in respect of which Glencore [had] not made a representation of the kind referred to in [s] 48(4)(b) of the PMAA”, including the NSC and WC (and other charges). PNO’s submission was that the scope ought to be limited to Glencore’s own access to the Service, that is, through owning a vessel and owning the coal loaded.

17. In 2017, the declaration of the Service was revoked, but that did not affect the determination of Glencore’s dispute notified before the revocation.

18. On 18 September 2018, the Commission gave its Determination and 200 pages of reasons. Of significance, the Commission identified the scope of the Determination:

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 [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 section 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.

19. In identifying that scope, the Commission explained:

PNO considers the scope to be limited to Glencore’s own access to the Service, either directly or by agent, and to exclude the Site Occupation Charge and the Ship Utility Charge. PNO also does not consider that Glencore can be construed as accessing the Service in its own right when it makes representations of the kind referred to in section 48(4)(b) of the PMAA. On the other hand, Glencore contends that the scope should include instances where Glencore accesses the Service in its own right (which includes instances where Glencore makes a representation under section 48(4)(b) of the PMAA), and should further extend to Glencore’s customers, where they are the charterer of vessels carrying Glencore’s coal. Glencore also considers that the scope should include the Site Occupation Charge and the Ship Utility Charge.

20. The Commission preferred PNO’s submission that the scope ought to be limited to Glencore’s own access to the Service. In doing so, the Commission explained:

…where Glencore charters a vessel or assumes the obligations of the vessel’s owner under section 48(4)(b) of the PMAA, it may be said that Glencore is using or accessing the Service at the Port. In both of these instances Glencore is liable to pay the Navigation Service Charge …

21. The Commission determined initial prices of the NSC and WC, but no other charges, using a building block model (BBM), discussed further below. Price adjustment mechanisms were also included.

22. The Commission’s reasons included:

7.1 Initial Wharfage Charge

The parties have agreed on the initial level of the Wharfage Charge of $0.0746 per revenue tonne as at 1 January 2018. The Wharfage Charge is a charge payable under the PMAA for the availability of a site at which stevedoring operations may be carried out. …

PNO advises that the Wharfage Charge as defined in the PMAA includes some services that fall outside the Service. For example, while the services provided at the leased wharves, including the coal loading terminals berths, are all within the Service, the services provided at common user wharves includes additional services that are not within the Service. PNO notes that, for this reason, the Wharfage Charge is higher at common user wharves.

The parties have therefore agreed that, for the purposes of the arbitration BBM, while an allocation of the Wharfage Charge at the common use berths is attributed to the Service, the amount of the Wharfage Charge at the leased berths is used.

The Commission adopts the initial Wharfage Charge for the purposes of this arbitration on the basis that it is agreed by the parties. The Commission considers that the price proposed by the parties reflects the parties’ assessment of the efficient costs of providing access to this aspect of the Service…

23. In contrast, the Commission gave 140 pages of reasons for its determination of the dispute about the initial level of the NSC, which it set, as at 1 January 2018, at $0.6075 per gross tonne.

24. On application by a party, a determination may be subject to review by the Australian Competition Tribunal under s 44ZP CCA. The Tribunal’s review is a re-arbitration of the dispute: s 44ZP(3) CCA. The Tribunal has the power to either affirm or vary the determination, which would then take effect as a determination by the Commission: s 44ZP(7) CCA.

25. In October 2018, both PNO and Glencore filed applications for review of the Determination. Both applications concerned the scope of the Determination and the determined rate of the NSC.

26. In October 2019, the Tribunal made a determination under s 44ZP(6) CCA, which varied the Determination, including confining its scope to the terms and conditions of access “where Glencore owns or, either directly or by agent, charters a vessel that enters the Port precinct and loads Glencore coal”. Before the Tribunal, the Commission had submitted:

… the question of whether or not the Wharfage Charge (and thereby the use of ‘sites’ for which it is levied) falls within the Service was not a live issue before the [Commission]. Rather, before the [Commission], the parties had provided an agreed model of charges and the Wharfage Charge was fixed (that is to say, agreed).

27. In November 2019, Glencore appealed the Tribunal’s determinations to the Full Federal Court pursuant to s 44ZR CCA, in relation to the amount of the NSC, the scope of the Determination and the extent to which Glencore was a party seeking access to the declared Service. At the same time, the Commission also applied to the Full Federal Court to review the determination of the Tribunal in relation to the amount of the NSC.

28. On 24 August 2020, the Full Federal Court delivered a 323-paragraph judgment: Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal (2020) 280 FCR 194 (Glencore – Federal Court). Allsop CJ, Beach and Colvin JJ allowed Glencore’s application, but dismissed the Commission’s. The Federal Court remitted the matter to the Tribunal for further determination according to law.

29. The Federal Court found that the Tribunal had erred in considering that “access to the Service was limited to the physical access to the channels, that is the navigation of the channels by ships, and that the person seeking such access is the person “controlling or in charge of a vessel”: at 226.

30. It considered that the Tribunal had erroneously determined that the use of the Service was “limited to the control of the ship”. At 226, it explained that on that erroneous view:

…the determination would be limited to circumstances where Glencore owns or demise charters vessels such that it has the possession of the ship and through its own crew controls the navigation of the ship to enter and leave the Port to carry its own coal. On this construction, Glencore would be able to benefit from a declared Service only if it entered the market or business of shipowning, including demise chartering of ships. It is to be recalled that this would not only deprive Glencore of the determination as to the NSC, but also the [WC]. … Glencore would only be able to benefit from the declared service only if it entered the freight market, that is, the market for chartering vessels, especially by voyage charter. Once again, this applies to both the NSC and the [WC].

31. The Federal Court set out the Tribunal’s reasons, with which it disagreed at 228-9:

At [151] of its reasons the Tribunal said:

[T]he crux of debate between PNO and Glencore as to the scope of the Service lies in the meaning given to the connecting phrase [in the declared Service] “by virtue of which”. In the Tribunal’s view, this connecting phrase describes the function of the shipping channels (as was contended by PNO), not the purpose of the Service (as was contended by Glencore). When one, as an exercise in interpretive analysis, substitutes “by virtue of which” with other synonymous connecting phrases in the context of the description of the Service, such as “as a result of which” or “through which” or “by reason of which”, the language that follows (“vessels may enter the Port precinct and load and unload at relevant terminals …”) strikes the reader as secondary to the primary thrust of the description of the Service, being access and use of the shipping channels. On our view, it describes the function of such access and use of the shipping channels. Glencore’s construction requires a reading which substitutes “by virtue of which” with “in order for” and replaces the modal verb “may” with the preposition “to”. The effect of Glencore’s construction is to qualify access and use of the shipping channels by reference to the apparent purpose of such access and use, being to load and unload at relevant terminals. In this sense, Glencore calls for a construction whereby the words which follow “by virtue of which” work to expand the meaning of the words which precede it. We do not consider this to be the correct manner in which to interpret the Service from a textual perspective, and favour PNO’s construction as a result.

With respect, we cannot agree. We do not see anything secondary about the words “may enter a Port precinct and load and unload”. The language used to describe the Service includes the berths or the shipping channels: the Service encompasses the availability of the site (being the area of water and the wharf and the strata of air and water set out in s 59(2) of the [PMAA] that may be the subject of the [WC] under that legislation). The Service is not confined to entry and exit from the Port. It expressly includes the right to access and use “berths next to the wharves as part of the channels” by virtue of which vessels may load and unload at relevant terminals and then depart. So, both the Service as described and the matters which give rise to the liability to pay the [WC] encompass activities being undertaken at the berths.

Thus, we disagree with the proposition in [153] of the Tribunal’s reasons that the notion of access and use of the shipping channel is being somehow qualified by the apparent purpose of loading. Access to and use of the shipping channels is by not only the economic access and use of the channels and berths, but also the physical use of the berths (being part of the shipping channels) by use of adjacent wharves for which the [WC] is paid, as part of the Service.

Once one recognises that the access or use is not limited in the physical way identified by the Tribunal in its acceptance at [149] of PNO’s submissions, then the notion of economic access or use will obtain equally whether by reason of Glencore selling on a CIF [cost, insurance, freight] basis (where it has time or voyage chartered a ship) or by reason of selling on an FOB basis (where it has not chartered the ship). In each case its access and use is economic in that it does not physically control the vessel using the channels. This is, with respect, entirely in accordance with the purpose of the declaration of the Service, contrary to the Tribunal’s view in [154] of its reasons.

… Glencore pays for and seeks access to the site. This is shown by the fact that the [WC] is covered by the Tribunal’s determination. Part of the MAR [maximum allowable revenue] is allocated to the [WC]. Glencore is physically accessing or using the berth by the use of the immediately adjacent wharf and water below adjacent to the revetments, in loading the ship at the berth. The [WC] is a product of the [PMAA], but it is regulated by the determination and that is so because it concerns the access and use of “berths next to wharves as part of the channels”. In our respectful view, that part of the Service is accessed or used by Glencore, both physically and economically, whenever Glencore is selling and loading coal. So, the Service is accessed or used.

32. The Full Federal Court rejected a “narrow interpretation of the Service … being the physical access to the shipping channels by the party who controls the navigation of the ship”: at 231. Instead, Glencore was using that part of the Service covered by the WC, and therefore was using the “indivisible” Service, including circumstances where it would be liable for the NSC.

33. The Full Federal Court did not expressly determine that Glencore could only access the determined WC if it accessed the NSC in the circumstances determined within scope. Glencore submitted that was nevertheless the effect of the judgment, particularly at 229, [157], which was not challenged on appeal:

Glencore pays for and seeks access to the site. This is shown by the fact that the [WC] is covered by the Tribunal’s determination. Part of the MAR [maximum allowable revenue] is allocated to the [WC]. Glencore is physically accessing or using the berth by the use of the immediately adjacent wharf and water below adjacent to the revetments, in loading the ship at the berth. The [WC] is a product of the [PMAA], but it is regulated by the determination and that is so because it concerns the access and use of “berths next to wharves as part of the channels”. In our respectful view, that part of the Service is accessed or used by Glencore, both physically and economically, whenever Glencore is selling and loading coal. So, the Service is accessed or used.

34. The Federal Court determined another matter, irrelevant to the current dispute, namely that the Tribunal erred in determining “an appropriate level of efficient costs” in setting the NSC.

35. The remittal hearing in the Tribunal was delayed pending PNO’s appeal to the High Court, which was heard in September 2021.

36. In December 2021, the High Court delivered its 125-paragraph judgment: Glencore – High Court.

37. The Court concluded that the Full Federal Court had erred in altering the Tribunal’s determination of the NSC. However, it concluded at 604:

… the Full Court was right to discern legal error on the part of the Tribunal in relation to the scope of the [NSC]. … the Tribunal will be confined on remitter to redetermining the scope of the [NSC]. … the redetermination of the scope … will not extend beyond determining when and how Glencore will be obliged to pay the [NSC] to PNO consistently with the terms of the [PMAA].

38. The Court noted at 591 the Full Federal Court’s construction of the Service:

The Service … was indivisible. There was no dispute that Glencore accessed that part of the Service which comprised use of the loading berths where Glencore sold FOB. There was also no dispute that, in respect of its access to that part of the Service, Glencore was liable to pay the [WC]. If Glencore accessed that part of the Service which comprised use of the loading berths, as the Full Court saw it, Glencore also necessarily accessed the other part of the Service, which comprised the shipping channels needed to get to and from the loading berths.

39. The Court then concluded at 600:

… the only person who has the potential to become liable to pay the Navigation Service Charge as a result of the Final Determination is Glencore. When Glencore sells FOB, Glencore can answer the description of a person who is liable to pay the [NSC] only by acting to bring itself within the extended meaning of “owner” of a vessel in s 48(4)(b) of the [PMAA] so as to accept the obligation to pay the [NSC].

The Tribunal on remitter must therefore be confined to determining the circumstances in which the [NSC] will be payable by Glencore to PNO. In respect of the particular use of the shipping channels by a particular ship carrying coal sold by Glencore, the concern of the Tribunal will be to work out a practical mechanism to govern when and how Glencore will invoke s48(4)(b) of the [PMAA] to represent to PNO that it accepts the obligation to pay the [NSC].

40. On 5 April 2022, the Tribunal varied the Determination by way of mark-up to the Commission’s 2018 determination (Application by Port of Newcastle Operations Pty Ltd (No 3) [2022] ACompT 2).

41. However, the Tribunal determined not to alter the Commission’s original Determination’s expression of “scope” at clause 2. In its reasons at [26], the Tribunal explained that it considered that the Determination concerning its scope “is consistent with the High Court’s ruling” for reasons at [24]-[25]:

… s 67 of the [PMAA] limits PNO’s ability to enter into an agreement with Glencore in respect of the navigation service charge when Glencore sells FOB. In respect of FOB sales (where the coal buyer arranges shipping from the Port), Glencore can answer the description within s 67 of a person who is liable to pay the navigation service charge only by acting to bring itself within the extended meaning of “owner” of a vessel in s 48(4)(b) of the [PMAA] so as to accept the obligation to pay the navigation service charge.

In light of the High Court’s conclusion concerning the scope of the determination, PNO proposed that the Tribunal make no change to the [Commission’s] arbitral determination on this issue. It will be recalled that the [Commission] determined that the navigation service charge would apply in respect of vessels using the shipping channel service in two circumstances:

(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 s 48(4)(b) of 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.

The dispute

42. PNO has never charged Glencore the NSC (at least since 2018) at any rate, because Glencore has not owned or chartered the vessels or otherwise fallen within the definition of “owner”. Glencore has paid the WC in the past at PNO’s fixed rate, not having sought to rely on the determined WC.

43. However, on 16 December 2024, Glencore gave written notice to PNO identifying ten related companies exporting coal through the port, which were the owners of that coal immediately before it was loaded onto vessels at the port (see s 61(3)(b) PMAA). That notice included:

(1) GCAA [Glencore] notifies PNO that it will be performing the stated cargo owner functions as required by the [PMAA] 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 [PMAA], 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.

44. In response, PNO rejected Glencore’s entitlement to:

1. selectively access the determined WC without also paying the determined NSC; or

2. obtain the benefit of the determined WC for other entities by purporting to make a representation under s 48(4)(b) PMAA, because that was not expressly provided for in the Determination.

45. During 2025, PNO has issued to Glencore invoices for the WC at its fixed rates, which are higher than the determined WC. Glencore has disputed those invoices and only paid them to the value of the determined WC. PNO claimed in its cross-claim the sum of $3,018,486.85 (as at 24 April 2025), together with interest of $65,838.95. The parties agreed that they would confer on any amounts due following judgment.

46. As noted above, the primary issue is the proper construction of the Determination. More particularly, the parties agreed that the issues to be determined were:

1. Is Glencore entitled to the WC rates contained in the Determination in circumstances where, within the meaning of s 48 of the PMAA:

1. Glencore is not the owner of the vessel; but

2. Glencore is, by virtue of its representation to PNO that it had accepted the obligation to exercise those functions, the owner of the cargo?

2. Does the Determination mean that either party is estopped from advancing their position in these proceedings?

3. Must Glencore pay any further money under the PNO invoices, and if so, what interest rate applies?

47. For the reasons that follow:

1. Glencore is not entitled to access the determined WC, without also being liable for the NSC in accordance with clause 2.1.

2. Glencore is entitled to obtain the benefit of the determined WC where it has made a representation under s 48(4)(b) PMAA (and is also liable for the NSC).

3. No estoppel operates to prevent Glencore seeking the construction that it does.

4. While Glencore must pay PNO the full amount of the invoiced WC, PNO is not entitled to interest, because it has not proved the applicable interest rate and therefore the quantum of the interest.

Principles of construction

48. I substantially adopt the parties’ helpful submissions about the role of the Court in construing a determination of the Tribunal.

49. The Court may reach its own view as to the meaning of a determination, even if that view departs from those contended for by the parties: see Australian Communication Exchange Ltd v Deputy Federal Commissioner of Taxation (2003) 77 ALJR 1806 at 1808 (Gleeson CJ) and 1815 (Kirby J).

50. There is little authority on the principles applicable to construing a determination by the Commission under s 44V of the CCA. The Determination itself is the result of what the statute describes as an “arbitration” process: see s 44U and Subdivision D of Division 3 of Part IIIA CCA. It is also to be accompanied by reasons: s 44V(5). Therefore, it is analogous to an arbitral award and I consider it appropriate to apply the accepted principles of construction that apply to arbitral awards.

51. In Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 1) [2005] 2 Qd R 174 at 178, Muir J observed, in the context of an application to enforce an interim commercial arbitral award pursuant to s 33 of the Commercial Arbitration Act 1990 (Qld), that in “considering the terms of an award … it would be inappropriate … to adopt a narrow or pedantic approach to its construction”. In the words of Sachs J, in order “to ensure that the Court’s interpretation of the award is correct”, regard may be had to “what was submitted to the arbitrator”: Blackford & Sons (Calne) Ltd v Borough of Christchurch [1962] 1 Lloyd’s Rep 349 at 356. That approach is generally consonant with the principles governing the interpretation of industrial awards, which, as Moore and Marshall JJ observed in Toyota Motor Corp Australia Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (1999) 93 IR 95 at 103, are often the product of arbitration rather than private agreement.

52. In Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 246, Gleeson CJ and McHugh J noted that the interpretation of an industrial award turns on “the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation”. At 270-1 and 282-3, Kirby J and Callinan J respectively approved the observations of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184 that:

1. The Court should avoid adopting a narrow or pedantic approach to the interpretation of the award: see also Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 499 at 503-4 (Street J);

2. An industrial award is to be interpreted in line with the “context of the relevant industry and industrial relations environment [rather] than with legal niceties or jargon”: see also City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57] (French J);

3. However, notwithstanding the impetus for a broad, contextual, interpretation of an industrial award, the Court’s focus is on the words used in the award and, at least in the absence of ambiguity, effectuating their plain and ordinary meaning: see also Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Works [2012] FCA 1010 at [50] (Cowdroy J).

53. A similar approach is called for when the Court is called upon to construe the reasons of an administrative tribunal, which are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ).

54. I have interpreted the Determination in light of these authorities.

Can Glencore use the determined WC without taking the determined NSC?

55. The key issue is the proper construction of clause 2 of the Determination, which is reproduced at [19]. The other clauses may be briefly summarised as follows.

56. 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.

57. Clauses 4 to 9 of the Determination set out the price terms that would apply to Glencore’s use of the Service. Clause 5.1 specified a WC amount per revenue tonne as at 1 January 2018, which, by reason of clause 5.2, was to be indexed annually by reference to Consumer Price Index (CPI). Clause 6.1 set out the amount of the NSC as at 1 January 2018, which, by reason of clause 6.2, was to be reviewed annually in accordance with clause 7 and reviewed every five years in accordance with clause 8.

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

Proper construction of the “scope” of the Determination

59. There are several reasons to prefer PNO’s construction of clause 2.

Language

60. Clause 2 is located at the beginning of the Determination and concerns the “scope of the determination”, namely the whole of it. It states that the scope “includes” terms and conditions of access to the Service. I do not accept that the word “includes” means that there were other additional terms and conditions, beyond the clauses in the Determination. Instead, the word “includes” should be read as a synonym of “consists of”, such that that clause indicates that the Determination consists of access terms and conditions for Glencore.

61. Clause 2.1(a) and (b) specified, by the use of “where”, the two situations, in which the Determination would operate for Glencore’s benefit. Further, clause 2.2 expressed the situations not covered by the Determination. Clause 2 did not carve out situations where the WC would operate that were different to those in clause 2.1. Clause 2.2(c) made it apparent that the Determination applied to the NSC and the WC, and not to other charges, but did not indicate they could be separately accessed by Glencore. Clause 1.2 also referenced the NSC and WC.

62. Further, pursuant to clause 3.1, Glencore is required to provide PNO notice of its intention to “use the Service under the terms of this determination”. Those terms include the “scope” requirements in clause 2.1 and the Service is indivisible.

Use of part of the Service

63. At no time before the Determination had Glencore ever been involved in the transport of any coal on vessels; its business was in selling coal to customers, who would control the transport, and would be liable for the NSC at PNO’s scheduled rates (or privately agreed rates). Therefore, previously Glencore (or related entities) had always paid PNO’s scheduled WC rates.

64. There is no dispute that the Service has been determined to involve various parts: use of the berths and use of the channels, each attracting a different charge. However, that Service is “indivisible” and access to part of the Service entitles access to the whole: Glencore – Federal Court at 229.

65. Glencore was seeking to have a determination of the WC and also the NSC, of which it could take advantage, in effect to assist its customers and therefore itself. That was the “scope” that was in dispute. That was confirmed clearly by the High Court at [111], indicating that the Tribunal would be limited on remitter to determining the scope of the determined NSC. However, the scope of the dispute was not the scope of the Determination, which also determined the WC.

66. It had been open to Glencore to seek an agreement with PNO about the WC: s 67 PMAA. However, Glencore raised a dispute about the terms of access to the Service, which included both the NSC and WC. The agreed value of the WC featured in the way the Commission set the NSC. The fact that both the WC and NSC were determined by the Commission in one arbitration about access to the Service, tells against the charges being applicable separately.

WC as part of the BBM process

67. As noted, the parties had agreed that the initial WC represented the “parties’ assessment of the efficient costs of providing access to this aspect of the Service”. In setting the determined WC, the Commission adopted the parties’ agreement. However, as the parties had not agreed on the initial price for the NSC.

68. In determining the charges, s 44X CCA required the Commission to take into account the “pricing principles” set out in s 44ZCA CCA, which include:

[T]hat regulated access prices should:

(i) be set so as to generate expected revenue for a regulated service or services that is at least sufficient to meet the efficient costs of providing access to the regulated service or services; and

(ii) include a return on investment commensurate with the regulatory and commercial risks involved …

69. The Commission used the BBM, which was a “widely-recognised and relatively standard pricing model”. The BBM is used for determining the MAR (maximum allowable revenue) that PNO “is able to recover from the Navigation Service Charge and Wharfage Charge for the declared service”, having “regard to the efficient costs of providing the Service (including an appropriate return on capital)”. The Commission then derived the charges from the MAR using volume forecasts.

69. The WC was an input in the BBM, forming part of the recoverable MAR as one stream of revenue available to PNO. The other stream used in the BBM was the NSC. The other charges that PNO levies for users of the port were not included in determining the MAR. Accordingly, in using the BBM to ascertain the MAR, the amount that could then efficiently be imposed for an NSC took into account the amount that was likely to be received by PNO through the WC.

70. This created a complexity because the WC was received through the loading of cargo at a number of different berths, not all of which were berths that fell wholly within the scope of the Service. As explained in a briefing note of the BBM, which was accepted by the Commission as accurately recording the agreed position of the parties, the services relevant to the berths used by Glencore and other coal vessels were “all within the Declared Service”, but there were additional services provided at other non-coal berths that were not within the Service, and for which a higher WC is applied. To allow for the WCs received from those berths to be counted as part of calculating the MAR for the Service, the parties agreed to allocate the same WC to all berths at the agreed rate of $0.0746 per revenue tonne.

71. The amount of the NSC, as noted, turned on the resolution of a number of different disputes as to matters that affected the inputs of the BBM. As part of the analysis, the Commission was required to engage in a detailed analysis of an evaluation of assets required to provide the Service (using a Depreciated Optimised Replacement Cost methodology). As the Commission’s reasons make apparent, the largest part of the assets being considered were the various channels at the port. The parties made detailed submissions on the valuation of the channels as assets and the costs of their upkeep, in particular, issues of necessary dredging. How those matters were valued necessarily impacted on how the initial NSC would be set.

72. Further, because the costs of assets relevant to the channels, and therefore the NSC, and their maintenance, could be very costly and involved risk, the Commission considered that the mechanism for increasing the NSC ought to operate annually and focus on “actual volumes”: clause 9, Commission’s reasons at [31]. The same was not true of the WC, which was agreed to increase by CPI: clause 5.2.

73. As PNO submitted in these proceedings:

For the purposes of the arbitration, the parties agreed to set the [WC] at its then current level, then maintain the charge in real terms, and recover the balance of the MAR through the [NSC].

75. PNO further submitted in an explanatory note to the Commission that “[t]he [WC] remains constant in real terms; and [t]he [NSC] is increased so that total forecast revenue equals the MAR”.

76. The Commission expressly determined at clause 4 that the “inputs to the building block model and the charges are reviewable” in accordance with clauses 5 to 9. Most BBM “inputs” referred to in clauses 5 to 9 were those relevant to the NSC: clauses 7.2, 8.2. However, WC was also an input and was “reviewable” by reference to CPI: clause 5.2. The specific reference to both WC and NSC being part of the “inputs” for BBM supports the conclusion that the determination contemplates the WC and NSC being paid in relation to one export of Glencore’s coal; without the input of the WC, the calculation of the MAR could not have been determined for the provision of the Service.

77. In this context, for completeness, I consider the admissibility of PNO’s expert report of Mr Greg Houston, an economist with experience in the economic analysis of markets. I do not consider the report is admissible for the following reasons:

1. As Williams J noted, the proceedings have not involved the proper construction of the CCA, or terms of access or pricing: [2025] NSWSC 167 at [34].

2. No order was sought nor obtained for any expert evidence to be used in the proceeding.

3. The issue of the proper construction of the Determination is one to be assessed by reference to the text itself in the context of the legislative and historical background, having regard to the material before the Commission. The report is not relevant to resolve that issue.

Other factors

78. I consider that the invoicing clause 10 is neutral in the construction exercise. The WC and the NSC were triggered in relation to different events and were calculated in different ways, which may explain the inclusion of two clauses dealing with the invoicing of each. I accept that, had the Commission required a single invoice for the WC and NSC after Glencore had used both parts of the Service, that would have been an indicator that Glencore had to access the WC and NSC together. However, I do not consider the use of separate clauses demonstrates that it was intended Glencore could access the determined charge for one part of the Service and not the other. Glencore (or a related company) was a coal seller and had always paid the WC; the contested issue was how Glencore could access a determined rate of the NSC when it was paying the WC, which it also sought to be determined.

Use of “and” in clause 2.1

79. I accept PNO’s submission that the specified scope indicates that Glencore had to access the whole Service and pay the NSC with the WC, because of the reference to “where Glencore… charters a vessel to enter the Port precinct and load Glencore coal” (emphasis added). The use of “and load Glencore coal” made it clear that both activities had to occur.

80. The sentence explains the purpose of the charter, which was to both enter the Port and load Glencore coal. Read naturally, the sentence envisaged that Glencore would charter a vessel and therefore be liable for the NSC and would also incur the WC through the loading of coal: cf Glencore – Federal Court at 226-7. That construction is consistent with the other constructional indicia.

Must Glencore own the coal for the determined WC?

81. As noted above, in December 2024 Glencore issued a notice to PNO, stating that it was making a representation under s 48(4)(b) PMAA that it would be liable for the determined WC for the other companies’ coal.

82. PNO submitted that course was not available to Glencore, because it was not specified in the Determination.

83. While “Glencore” is defined in the Determination as the plaintiff, there is no definition of “Glencore coal”. I do not consider the Determination was intended to apply only to situations were Glencore personally owned coal, rather than including any situation where s 48(4)(b) PMAA applied because of an appropriate representation by Glencore. The Determination must be read in the context of the PMAA.

84. The purpose of clause 2 was to limit the scope of the Determination by reference to the availability of the determined NSC; it was not found to reach as far as Glencore had hoped. However, there was no specific argument before any decision maker that Glencore could or could not take advantage of the determined WC, if it could make itself legally liable for the WC under the PMAA. I consider Glencore could take advantage of the determined WC if it was the owner of coal as defined by s48 PMAA, if it otherwise fell within the scope of the Determination concerning the NSC.

Estoppel?

85. There may be some room for an Anshun or issue estoppel to bar a litigant from contending for a construction of a statute not otherwise advanced in collateral proceedings: see eg Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council [2007] QCA 326 at [80] (Cullinane J) and [104] (Wilson J).

86. However, I reject PNO’s submission that Glencore was estopped from arguing that the proper construction of the Determination entitles it to access the determined WC without the NSC, in circumstances where its submission to the Federal Court was accepted that it was accessing the Service by using the wharves and paying the WC.

87. Glencore was entitled to run the litigation before the Commission, Tribunal and Courts as it saw fit. That resulted in a Determination that binds the parties. The question now is what that Determination means, as a matter of construction.

88. I do not accept PNO’s suggestion that an issue or Anshun estoppel bars Glencore from contending that it may access the WC without the NSC, in circumstances where that question of construction could logically only arise once the Tribunal has settled its determination.

89. I also do not accept that Glencore is prevented from making the submissions it does now because it failed to positively submit to the Commission that the determination ought make plain that it entitled Glencore to either or both of the WC and NSC.

90. For the same reasons, I would not accept that PNO is estopped from making submissions on the proper construction of the Determination either.

Amount and interest payable

91. As PNO has succeeded on the question of construction of the Determination, it follows that Glencore is liable for the shortfall in any unpaid invoices. The parties will be directed to confer on the appropriate sum payable.

92. It is also necessary to determine whether PNO is entitled to interest on those unpaid amounts.

93. Section 70(1) PMAA confers on PNO a discretion to determine the rate of, and charge, interest on the various charges. Section 70(3) PMAA provides that, unless dealt with otherwise in the Ports and Maritime Regulation 2021 (NSW), that rate “is not to exceed 5 per cent per annum above the interest rate that in the ordinary course of business would be charged by the Commonwealth Bank for the relevant period on unsecured overdrafts of more than $100,000”. There is no relevant regulation.

94. PNO used the formulation adopted by s 70(3) PMAA in its annual Schedules of Service Charges as well as in clause 25.1 of the third version of PNO’s “Vessel Standard Terms and Conditions” as the definition of “Default Rate”, for the purposes of clause 6.3, which provided:

6.3   Late payment

If any amounts payable by the Vessel Operator to [PNO] are not paid by the due date, the Vessel Operator must pay to [PNO], by way of liquidated damages, interest accruing daily at the Default Rate on the amount outstanding calculated daily from the due date until payment is made in full. The Vessel Operator must indemnify [PNO] for all amounts, including legal fees and costs, on an indemnity basis, incurred by [PNO] associated with the recovery of any amounts owing by the Vessel Operator to [PNO] under or in connection with the Vessel’s visit to the Port. Such amounts are a debt due and payable to [PNO].

95. As at 23 April 2025, PNO asserted an entitlement to $65,838.95 by way of interest on the outstanding WC. In support of its claim for interest, PNO relied on an extract of an article published on the Commonwealth Bank of Australia’s website, obtained using the digital archive, the “Wayback Machine”, dated 12 January 2025, which listed the bank’s “Overdraft Index Rate” at 11.93% per annum. That index rate was decreased, on PNO’s evidence, to 11.68% per annum on 28 February 2025, and again to 11.43% per annum on 20 May 2025. On the premise that the Overdraft Index Rate was the appropriate interest rate that would ordinarily be charged by the bank on unsecured overdrafts over $100,000, PNO submitted that the relevant “Default Rate” fluctuated between 16.43% and 16.93% per annum.

96. The extracts contain a variety of reference rates for the bank’s lending products, including a “Corporate Overdraft Reference Rate”, which stood at: 11.33% between 12 November 2023 and 27 February 2025; 11.08% between 28 February 2025 and 19 May 2025; and at 10.83% as from 20 May 2025. As with the Overdraft Index Rate, the web extracts warned potential customers that its rates were not universally applicable. For example, the article extract included:

Rates

Rates listed are reference rates, interest rate margins may apply.

Rates depend on your individual circumstances, including loan amount and type of security (residentially secured, commercially secured or unsecured).

We’ll confirm your rate in your letter of offer.

97. A further extract from the bank’s website obtained on 24 April 2025 specified that information about rates was:

… current as at 10 April 2025 and [was] prepared without taking into account your individual and/or business needs and objectives. …

… These products are only available to approved business customers and for business purposes only. … Rates are subject to change. …

Rates are used as a basis to determine the applicable interest rate/s charged on all relevant loans…

98. I accept Glencore’s submissions that the effect of the bank’s position that the rate of interest charged on overdrafts, whether secured or unsecured, depended upon the individual circumstances of the customer. The result was that the Court could not be satisfied that the Overdraft Index Rates adduced by PNO would have been imposed upon PNO, as contemplated by s 70(3) PMAA.

99. The qualification of each of the bank’s rates upon the individual circumstances, and type, if any, of security proffered by a customer does not permit the Court to determine with any certainty what rate PNO would have been given, were it to have overdrawn its account of the type specified.

100. The hypothetical posed by s 70(3) PMAA, as adopted by PNO, called for more compelling proof of whether and why either of the Overdraft Index Rate or the Corporate Overdraft Reference Rate would have been imposed at those rates. For the Court to be satisfied that a particular interest rate “would” be charged by the bank for an unsecured overdraft of more than $100,000, the Court would have to, at the very least, be apprised of the bank’s view on PNO’s individual circumstances, which would likely have been easy to do. In the absence of such proof, PNO has not established an entitlement to interest at the rates claimed.

101. It was not suggested that it would be appropriate for the Court to supplement, or overlook, these deficiencies in PNO’s evidence by means of judicial notice. It may be accepted that, generally speaking, the Court may take judicial notice of “general economic trends, the effects of inflation, prevailing rates of interest and returns on investment”: Rendell v Paul (1979) 22 SASR 459 at 466 (King CJ, Walters and White JJ agreeing). The Court’s ability to do so, however, necessarily turns on any such rate of interest being the subject of general knowledge: see eg Saul v Menon [1980] 2 NSWLR 314 at 325 (Moffitt ACJ, Hope AP agreeing). That is not the case for the particular interest rates that might be imposed on a case-by-case basis by the bank: cf Asia Pacific International Pty Ltd v Dalrymple [2000] 2 Qd R 229 at 242 (Shepherdson J).

102. It has not been suggested that PNO is entitled to interest at the rates contemplated by r 6.12(8) Uniform Civil Procedure Rules 2005 (NSW) or otherwise. Here, PNO holds a discretion as to whether to charge interest at all on outstanding charges, subject to the limit imposed by s 70(3) PMAA. It may choose not to do so. Given the deficiencies in its evidence, as identified above, I am not satisfied on balance that the extent of the “Default Rate” has been established.

Conclusion

103. For the reasons above the appropriate orders are:

1. On or before 4pm on 23 July 2025, the cross-claimant serve on the cross-defendant short minutes of order intended to give effect to these reasons for judgment together with the orders they propose in relation to costs and any necessary explanation;

2. On or before 4pm on 28 July 2025, the cross-defendant:

1. if it agrees with the cross-claimant’s short minutes of order, notify the cross-claimant and my Associate of their agreement, in which case the orders will be considered in chambers;

2. if they do not agree with the cross-claimant’s short minutes of order, serve on the cross-claimant a document (which may include alternative short minutes of order) setting out the matters on which they disagree and provide copies of the cross-claimant’s short minutes of order and their document to my Associate, in which case the matter will be listed, initially for directions, at 9:30 am on 30 July 2025, or such other date as is agreed with my Associate, to deal with all outstanding issues.

Annexure A (7.96 MB, pdf)

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Decision last updated: 17 July 2025