Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal & Ors; The National Competition Council v Hamersley Iron Pty Ltd & Ors; The National Competition Council v Robe River Mining Co Pty Ltd

The High Court of Australia considered appeals and cross-appeals arising from decisions of the Australian Competition Tribunal (the Tribunal) concerning access undertakings given by Pilbara Infrastructure Pty Ltd (Pilbara Infrastructure) and Hamersley Iron Pty Ltd (Hamersley Iron) and Robe River Mining Co Pty Ltd (Robe River) respectively, under Part IIIA of the *Competition and Consumer Act 2010* (Cth) (the Act). The National Competition Council (NCC) was also a party to the proceedings. The core dispute involved whether the Tribunal had erred in its review of the NCC's recommendations regarding these access undertakings, which related to the use of railway infrastructure in the Pilbara region of Western Australia.

The primary legal issues before the High Court were whether the Tribunal had correctly applied the public interest test under section 44ZZX of the Act when assessing the undertakings, and whether the Tribunal had erred in its interpretation and application of the criteria for declaring services as "declared services" under section 44G of the Act. Specifically, the Court had to determine if the Tribunal had given sufficient weight to the objects of Part IIIA, including the promotion of competition, and whether its findings regarding the likely impact of the undertakings on competition were legally sound.

The High Court, in a joint judgment, found that the Tribunal had made errors in its assessment of the undertakings. The Court held that the Tribunal had not adequately considered the objects of Part IIIA, particularly the promotion of a competitive market, when evaluating the public interest. It was determined that the Tribunal had placed undue emphasis on the commercial interests of the service providers without sufficiently balancing these against the broader public interest in fostering competition. The Court clarified that the public interest test requires a comprehensive assessment of all relevant factors, including the potential for increased competition and the benefits that flow from it, rather than a narrow focus on the immediate commercial viability of the undertaking.

The High Court allowed the appeals in part, quashed the decisions of the Tribunal, and remitted the matters to the Tribunal for redetermination in accordance with the reasons of the High Court.