Port of Newcastle Operations Pty Limited v Glencore Coal Assets Australia Pty Ltd & Ors

[2021] HCATrans 42

[2021] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S171 of 2020

B e t w e e n -

PORT OF NEWCASTLE OPERATIONS PTY LIMITED (ACN 165 332 990)

Applicant

and

GLENCORE COAL ASSETS AUSTRALIA PTY LTD (ACN 163 821 298)

First Respondent

AUSTRALIAN COMPETITION TRIBUNAL

Second Respondent

AUSTRALIAN COMPETITION & CONSUMER COMMISSION

Third Respondent

Application for special leave to appeal

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2021, AT 10.33 AM

Copyright in the High Court of Australia

MR C.A. MOORE, SC:   May it please the Court, I appear with my learned friend, MR D.J. ROCHE, for the applicant.  (instructed by Clayton Utz)

MR N.J. YOUNG, QC:    May it please your Honours, I appear with MR M.P. COSTELLO for the first respondent, Glencore.  (instructed by Clifford Chance)

KIEFEL CJ:   Yes, Mr Moore. 

MR MOORE:   Your Honours, the first special leave point is whether persons who have merely an economic interest in the terms sought in an arbitration under Part IIIA of the Competition and Consumer Act can commence a compulsory arbitration and obtain arbitrated terms on which other people can use the service.  This question turns on the proper meaning of ‑ ‑ ‑ 

KIEFEL CJ:   Mr Moore, forgive me, I have just realised an extension of time is required.  

MR MOORE:   Yes, it is, your Honour.

KIEFEL CJ:   Is there any difficulty?

MR YOUNG:   No.

KIEFEL CJ:   The extension is granted.

MR MOORE:   Thank you, your Honour.  The issue raised turns on the proper meaning of the term “access”, which is used throughout Part IIIA, but of course not defined in that Act.  The scope and content of a notion of an access seeker, referred to in Part IIIA as the third party, being the person who wants access to a declared service, in particular is an issue as to whether a person who has merely an economic or financial interest in the terms of access is probably a third party within the meaning of Part IIIA.

That issue arose in the present case because Glencore sought to fix by compulsory arbitration, not only the terms of the navigation service charge for navigating the shipping channels charged by Glencore – charged to Glencore by the Port, when Glencore chartered a vessel that entered the Port, but also the terms of the navigation service charge levied on owners and charterers of ships that used the declared service, being the shipping channels, when the ship was carrying Glencore coal. 

Both the ACCC in its arbitration decision and the Competition Tribunal on review concluded that Glencore could not arbitrate the terms on which other persons were provided and used the declared service.  The Full Court came to the opposite conclusion, holding that a person who had an economic interest in accessing the declared service, or who wanted what the Full Court termed economic access, was a third party, that is an access seeker, for the purposes of Part IIIA, and could arbitrate terms which it could then extend by way of an option to the user of the service. 

KIEFEL CJ:   Is it essentially your argument that that approach to economic access does not conform with the statutory scheme in the words of the statute. 

MR MOORE:   Quite.  That is the nub of it your Honour.  It is an extra‑statutory notion and ‑ ‑ ‑ 

KIEFEL CJ:   Would you say it overlays the statute, or it is inconsistent with it?

MR MOORE:   It is too broad because the statute when it refers to access is referring to access in its ordinary meaning of a right to enter and use something, a right to obtain something, not an economic interest, a financial or economic interest.  There are some indications in the statutory text that that more narrow meaning is what is intended. 

KIEFEL CJ:   What are the words of the statute again - where do we find the statute?

MR MOORE:   Yes.  The words of the statute are in section 44B, which commences at page 436 in volume 2 of the application book.  There is, of course, no definition of “access”, but can I note the definition of “service” on page 437:

a service provided by means of a facility and includes:

(a)the use of an infrastructure facility such as a road or railway line –

or it could be a port.  That is the most relevant subparagraph for present purposes.  Then over the page, the term “third party” in relation to a service means:

a person who wants access to the service or wants a change to some aspect of the people’s existing access to the service.

So the focus is on access.

KEANE J:   By that person.

MR MOORE:   By that person, quite, your Honour.  In a previous decision of the Full Court, referred to in paragraph 20 of our application for special leave, Port of Newcastle v Australian Competition Tribunal, it said that “access” means:

a right or ability to use a service. 

We would say that accords with the ordinary meaning of “access” and the court said that was the ordinary meaning of “access”, whereas, in this decision, the Full Court has said that somebody who has an economic interest or who wants economic access is an access seeker or a third party and can extend the benefit of their…..terms to the person who is actually using the service.  We say that involves an extension of the term in a way that the language does not permit ‑ ‑ ‑

KIEFEL CJ:   So on your argument, you cannot access the service through a charterer?

MR MOORE:   If the charterer is using the service, then the charterer is the person who is accessing the service.

KIEFEL CJ:   But the buyer cannot through the charterer - that is not them under FOB.

MR MOORE:   Quite, your Honour.  That does not mean, contrary to some suggestion of the Full Court, that Glencore does not get the benefit of the declaration because of course a charterer can obtain access – can obtain access on arbitrated terms, which might involve avoiding, for example, a monopoly price.  So Glencore may get the benefit but Glencore cannot itself seek to determine ‑ ‑ ‑

KIEFEL CJ:   Cannot itself arbitrate on that question.

MR MOORE:   Cannot self‑arbitrate and seek to determine the terms on which a third party, another person, is actually obtaining the use of the facility.

KEANE J:   Section 44U says who the parties to the arbitration and access dispute are.  They are the provider, the third party and:

any other person who applies in writing to be made a party and is accepted by the Commission as having a sufficient interest.

MR MOORE:   Yes.

KEANE J:   That would suggest that someone in Glencore’s position might be able to be joined but on the contrary not able to initiate the arbitration proceeding.

MR MOORE:   Yes, your Honour.  Indeed, pursuant to section 44X(1), the Commission must take various matters into account, including matters that might affect other people – for example, the interests of all persons who have rights to use the service, so that it is readily understandable why other people might wish to participate in the arbitration but not to initiate the arbitration.  The initiation of the arbitration is dealt with in section 44S.  It is a classic negotiate, arbitrate model and it is a bilateral dispute.  So, the precondition is:

If a third party –

confusingly the term “third party” – that is just the access seeker:

is unable to agree with the provider on one or more aspects of access to a declared service, either the provider or the third party –

i.e. the access seeker:

may notify the Commission in writing that an access dispute exists –

So, the only basis on which one can initiate an arbitration is if one is an access seeker.  Then, the determination by the Commission is dealt in section 44V.  That provides, in subsection (1), that:

the Commission:

(a)must make a written final determination

 . . . 

on access by the third party to the service.

Then, 44V(2) – which is relied upon by our learned friends:

A determination may deal with any mater relating to access by the third party to the service, including matters that were not the basis for notification of the dispute.

But whilst it might have dealt with any matter relating to access by the third party, the universe of that provision – and the universe of orders that might be made – that must relate to access by the third party – not access by some other person.

Section 44ZO – which, by omission, was not included in the materials – and we have provided a separate page which, I think, is available – is another provision that is relevant.  Do your Honours have that?

KIEFEL CJ:   No, we do not.

MR MOORE:   We did hand up a piece of paper – yes, sorry, your Honours. 

KIEFEL CJ:   If you just read it out.

MR MOORE:   It was omitted from the application book by accident.  Section 44ZO provides that – it makes provision for the operation of final determinations and it provides that the determination has effect 21 days after the determination is made.  But subsection (3) makes provision for backdating, so it can:

be expressed to apply from a specified day that is earlier –

Subsection (4), at the very bottom of the page, provides that that specified earlier day:

cannot be a day on which the third party did not have access to the service –

and we ask, rhetorically, how can one assess the date on which the person has economic access to a service?  The Act appears to be dealing with some form of physical access.

Turning to the decision, the Full Court commenced by discussing the background to the legislation and in paragraph 32 on page 336 of the application book, noted that it was implementing reforms proposed in the Hilmer report.  In paragraph 37, on page 338, there is reference to a quote from the Hilmer report in paragraph 38:

Policy judgments are involved as to where to strike the balance between the owner’s interest in receiving a high price, including monopoly rents that might otherwise be obtainable, and the user’s interest in paying a low price –

So, certainly, the conception at that time was that we were dealing with users of the service.  Then, likewise at paragraph 40, the Full Court refers to the fact that:

the Commonwealth, States and Territories entered into –

the competition principles agreement, which led to Part IIIA, and in paragraph 41:

By cl 6(1) of the Agreement, it was agreed that the Commonwealth would put forward legislation to establish a regime for third party access –

and subparagraph (d) refers to:

the safe use of the facility by the person seeking access –

so again, appears to be involving a conception of use by the person who is the access seeker, not somebody who has a mere economic interest.  At paragraph 46 of the decision is the key reasoning, and 47, and in 46 the Full Court observed that the:

authority to make a determination was not confined to the terms upon which the provider may be required to allow the third party to use the service.  None of the statutory examples given in s 44V(2) refer to use of the service by the third party.

There is then a statement that the language of access:

reflects the economic character of the legislation which is concerned with facilitating arrangements that will advance economic efficiency –

With respect to their Honours, it does not follow that a concern with economic efficiency requires some notion of economic use.  Rather, economic efficiency is promoted by permitting physical access to what may be a monopoly infrastructure to…...competition, and by permitting the regulation of pricing for physical access to prevent what may otherwise be monopoly pricing.  Then in paragraph 47 the Full Court gave a broad construction in the first sentence, and then in the last sentence of paragraph 47, relies upon the absence of any express indication of limitation. 

Now, with respect to their Honours, that approach does not involve any meaningful consideration of the proper meaning of the term “access”, does not involve any consideration of the extrinsic materials, including the references to a user of the facilities set out in the immediately preceding paragraphs.  It does not analyse why, under an apparent scheme of the resolution of bilateral disputes, a person would be able to arrogate to themselves the ability to determine the terms on which somebody else would obtain use of the service, and it does not consider how any conflict might be resolved, importantly, between the terms obtained in an arbitration by a non‑using third party, and the terms negotiated or arbitrated by the actual user of the service, which is just a theoretical concern in the case of the present Court, and what happens where one has different negotiated or arbitrated terms between a person who is actually using and the person who says they are an economic access seeker who wishes to determine those terms.

Now, the declared service is set out in paragraph 88, which is the provision of the right to access and to use the shipping channels, and the relevant charge, the navigation service charge, is charged pursuant to section 50 of the Act, which provides for a charge on general use by a vessel of a port, and is calculated by reference to the gross tonnage, not the tonnes of cargo, but the gross tonnage of the vessel. 

Commencing at paragraph 141, their Honours commence to analyse the application of Part IIIA in the present case, recording the submission of PNO at 141 along the lines we are making here and then at paragraph 149, having summarised the conclusion of the Tribunal, that access was limited to physical access, in the first three sentences their Honours say:

This construction is not without difficulty . . . It pays little regard to the economic access or use of the channels as a necessary part of the export of coal.

Then at 150, their Honours record the submission and the Tribunal reasoning to the effect that if a third party was given a broad meaning there could be some inconsistency between the terms of the negotiated or arbitrated provisions and then the – under both the access - the economic access‑seeker and the physical access‑seeker.  The court dealt with that at 151 by introducing, at the foot of the page, the notion that the port would:

in effect, issue a ticket, for such ships to use the Port –

being a ticket issued at the request of Glencore, and:

The party in control of the ship may also wish to seek terms on which it is directly liable to PNO.  The fact that each may seek to treat as to terms upon which the Service may be provided does not pose any difficulty.  PNO offers terms to each and commercial decisions will be made on that basis.

With respect to their Honours, it is entirely unclear what this means, especially when arbitrations are binding on both parties, and how commercial decisions will be made to resolve what might be a conflict between two arbitrations in the outcome of terms.  That is further developed at paragraph 162, where the Full Court introduces the notion of an option, so that the party may have the:

option of taking up Glencore’s arbitrated price.

We say that that notion of an option finds no support in the statutory language.  So those matters, we say, simply involve a departure from the statutory scheme.  This is a matter of general importance which affects how that might apply in a whole variety of situations involving the use of the court. 

There may be a very wide class of people indeed who have an economic interest, who might be said to be having economic access, the parties all up and down the supply chain, and this gives rise to considerable uncertainty in the operation of the scheme and who the owner of the facility has to deal with in negotiating in the resultant terms.

KIEFEL CJ:   The second question you raised deals with deduction of user contributions under a particular methodology.

MR MOORE:   Yes.  I must move to that immediately.  The relevant question is the construction of section 44X(1)(e) and in particular the question of whether that is limited to extensions that are the subject of the arbitration itself, which flows from the language in 44V(2), which provides that determination may require a provider to “extend the facility” in 44V(2)(d) and 44W, which provides in (1)(e) that a determination cannot require the provider to:

bear some or all of the costs of extending the facility -

That is the statutory scheme that then leads naturally to 44X(1)(e), which provides that the Commission must take into account the value of the provider of extensions of capacity whose cost is borne by someone else.

The Full Court in contrast said that 44X(1)(e) had some wide ambulatory operation.  It applied in all circumstances where some cost had been borne by someone else in the making of a contribution, and that could be a historical contribution, in circumstances where the Full Court also said that it did not require, or indeed even invite, taking into account the circumstances in which that historical contribution was made.

So, if someone in 1920 extended a facility on the basis that they would have exclusive use of the facility for 20 years and would retain discounted access to the balance of the facility, the approach of Glencore is to say you ignore the balance of that, you simply say that someone paid for something and no person, no user, could ever be charged for the use of that facility in perpetuity.  The Full Court said that was something that was supported by 44X(1)(e), because it requires the Commission to take into account:

the value to the provider of extensions –

the capacity whose cost is borne by someone else but excludes consideration of any other context.

KIEFEL CJ:   Mr Moore, how does your argument, as I understand it, about a mixing of methodologies, how is that connected with your construction of 44X, or is it a separate ‑ ‑ ‑

MR MOORE:   There is a separate point which is whether ‑ ‑ ‑

KIEFEL CJ:   That if you are going to undertake the DORC methodology, this is inconsistent with it to deduct from it.

MR MOORE:   Exactly, whether that gives you the right to value ‑ ‑ ‑

KIEFEL CJ:   You either have the hypothetical that is the subject of that methodology or you do not.

MR MOORE:   Yes, so there is an additional issue of principle there, but a principle basis on which the Full Court determined that one could not have regard to other countervailing factors in terms of historical costs, as the court made clear at paragraph 288, was the construction that was given to 44X(1)(e), and there their Honours said that that section is not concerned with whether there were other aspects of the past that might have provided some benefits to the provider.  It was concerned only with whether the value of an extension that forms part of a facility used to provide the service is value that is borne by someone other than the provider.

KIEFEL CJ:   I see the light, I think it is red this time.

MR MOORE:   I have run out of time.

KIEFEL CJ:   Could I ask you, though, your ground 3 - I am having a little difficulty understanding it.

MR MOORE:   Yes.  That was simply an extension of the first grounds.  Section 48 is found in the application book - this is 48 ‑ ‑ ‑

KIEFEL CJ:   What does it add to the question in grounds 1 and 2?

MR MOORE:   It simply deals with this.  Once one determines the proper scope of access, that will then determine the question of whether an extension in the Act which said that someone could be an owner - if you represent you are an owner - would properly be within the concept of a third party under the legislation.

KIEFEL CJ:   I see.  Yes, thank you.

MR MOORE:   So it is simply bound up in that notion.  May it please the Court.

KIEFEL CJ:   Thank you, Mr Moore.  Yes, Mr Young.

MR YOUNG:   If the Court pleases.  The first special leave question going to scope concerns only the construction of a bespoke definition of the service relevant on these particular facts.  It raises no point of general principle.

KEANE J:   Having regard to the way in which the Full Court have approached the question, or framed the question as one of economic access, it is hard to say that it is just concerned with the terms of this particular declaration of the service.

MR YOUNG:   Yes.  By that I meant that this definition included loading the vessel and the transit of the vessel through the channels of the port.  So loading and the wharfage charge were part of the determination and part of the service and Glencore was the only party loading.  It was its role as an exporter of coal that required the vessel transactionally to transit the port in order to load the coal.  That was the relevant economic concept, your Honour Justice Keane, and I will go on to explain that. 

KEANE J:   The declaration was as to the provision of the right to access and use the shipping channels.

MR YOUNG:   But it also refers to:

(including berths next to the wharves as part of the channels) . . .  by virtue of which . . . load and unload ‑ ‑ ‑

KEANE J:   It is a right expressed in compendious terms, but it is a single right.

MR YOUNG:   Yes, it is, but it includes loading and it includes, in order to load, the necessity of the vessel transiting the port in both directions, and the wharfage charge imposed on Glencore for loading was part of the determination.  It was fixed not only as to quantum, but for a term of 15 years and that charge was fixed only by virtue of the fact that loading was to use the service. 

Can I go directly to your question about economic interest, your Honour?  The Full Court used the descriptor “economic” in contradistinction to the argument advanced by the Port of Newcastle, which was that access should be confined to the physical control of the vessel while it navigates the channel. 

What the Full Court was doing was to reject the notion that access in the context of this Act should be confined to physical control of the vessel and, as the Chief Justice observed, that would have the consequence that the purchaser of the coal who engages in some kind of charter to pick up the coal is not itself accessing the service.  It is only the voyage or time charter or demise charter that may be accessing the service.  That cannot be right in the context of this Act, and that is what the Full Court was pointing out.

It is said from the outset, in a series of paragraphs, that the real use is that of Glencore and the purchaser of the coal - for instance, at paragraph 13, last sentence at page 332; at paragraph 17 at 333, the whole paragraph or the last sentence; and then at paragraph 92 at page 354, because what was in issue was the construction of the declaration formulated by the Tribunal in earlier proceedings.  So, one needed to take account of why the service was being declared in the context of that decision, and the reasons for that are succinctly stated by the Full Court in paragraph 92.  If your Honours will look at the last two sentences, it is summed up there:

the point of its definition is its relationship (as a bottleneck monopoly) to the market of producing and exporting coal . . . it is the access to the channels by the producer and exporter of cargo that is of relevant economic significance. 

Now, the Full Court went on in contrasting a commercial or transactional involvement in access to physical control of the vessel, and that was the nub of their decision that has not been exposed by what the applicant has presented. 

Can I take you to paragraph 147 in the reasons - that is page 367?  I start there because it sums up PNO’s argument about physical control and access should be limited to control of the vessel while navigating, and your Honours sees that in 147 and 148.  Then, if rejected, difficulties are identified under three heads.  The first is to confine access to physical control of the vessel, would be repugnant to the context and purpose of the declaration and they go on to develop that in ways that I will come to ‑ ‑ ‑ 

KEANE J:   But they go on to develop it in terms that the approach of the Tribunal is to pay little regard to the economic access.  That is the point.

MR YOUNG:   But, your Honour, “economic” is being used in the sense of non‑physical, and they go on to explain that they are talking about an interest which is transactional ‑ ‑ ‑ 

KEANE J:   Well, they are talking about the customer of the shipper. 

MR YOUNG:   They are talking about the exporter and the purchaser of the coal whose transaction is to the effect that coal will be loaded and transported ‑ ‑ ‑ 

KEANE J:   They are talking about the customer of the person who is actually accessing and using the shipping channels. 

MR YOUNG:   Yes, but the driver of the transaction, as they explain – or the drivers are the exporter and the purchaser of the coal.  The exporter loads the coal under the export sale transaction, and it finds itself to do that in circumstances where a vessel is required to be there at berths at a certain point in time to take on coal and tranship it.  The purchaser is doing the opposite, that is acquiring the coal and causing the vessel to transit through the port for the purposes of the acquisition.

That is the sense in which “economic” is used.  It is not used in the sense of a remote economic or financial interest - in my learned friend’s words, a mere economic interest.  It is used in the sense of the fundamental transactional involvement that causes the vessel to be loaded and to transit the port.  That is made very clear in several passages in rejecting the physical control limitation - paragraph 155, firstly, at 370, about line 9:

In each case its access and use is economic in that it does not physically control the vessel . . . This is . . . in accordance with the purpose of the declaration –

and then mention is made that a loading charge was part of the declaration, in paragraph 157.  But the key reasoning is in 158:

access to and use of the shipping channels are not limited to . . . the notion of physical access or use by the control and navigation of the vessel –

They go on to define their concept of access at line 9.  It is:

relevantly economic though connected closely and clearly, indeed immediately, to the physical activity involved.  No particular general principle is at play here . . . meaning of the text of the Service that the exporter is accessing or using the shipping channels when, by its sale arrangement, it causes a vessel to enter the Port.  It does so, that is it causes a vessel to enter the Port, when it sells CIF or FOB, irrespective of whether it owns, demise charters –

et cetera.  So, the economic descriptor was directed to a transactional immediate and direct involvement in what brought the vessel to load and to transit the Port.  It would be an extraordinary consequence that the only person having a right of access, or an ability to seek access is a vessel master, or a vessel charterer. 

KEANE J:   Perhaps not so extraordinary.  It is noteworthy that in this case the Full Court have taken a more expansive view of the jurisdiction of the Tribunal to arbitrate than the Tribunal on which sit economists than the Tribunal itself took - not so remarkable. 

MR YOUNG:   With respect, your Honour, it would have these consequences here.  Glencore is loading the coal and is being subject to a charge that is determined by this arbitration for 15 years.  But it is not an access seeker unless it is also the charterer of the vessel.  That is a very odd consequence.  So, it cannot enforce the determination even though it is subjected to a charge fixed by the determination.  Moreover, there is another ‑ ‑ ‑

KIEFEL CJ:   Mr Young, speaking for myself, I do not think this is the kind of matter where one could be comfortable with a view about the correctness of the decision of the Full Court on an application for special leave – at least for me, the question, on this limb of the argument is whether there is a question of importance.

MR YOUNG:   Yes, I understand, your Honour.  Access is unkind.  A third party is simply a party who wants access.  In practical reality, the parties who want access are the exporter and the purchaser of the coal.  The other parties are effectively ‑ ‑ ‑

KEANE J:   Who wants access by a right exercisable by that person against the owner of the facility.

MR YOUNG:   It wants a right, yes, in respect of the charges that are levied under the State Act, being the wharfage charge for loading and the navigation charge for transiting the channels of the port.  But that is because in a real world relevant transactional sense, it is the party seeking the access and the other party’s charter of a vessel, owner of the vessel, are subordinates to that overriding transaction. 

That was the approach of the Full Court and that approach was consistent with the broad way in which the part addresses access.  It does not confine “access” to physical use at all.  It is a much broader concept.  It is our learned friends who try to narrow access to physical control of the vessel.  So that is the point.  We would say that there is no reason in the text of the legislation to confine access to the physical navigation of the vessel where that is being brought about by a transaction between exporter and purchaser.

That is that way in which the Full Court approach it.  In our submission, that is directed to the particular facts of this export situation and the particular definition of the service.  That declaration of the service has now been revoked.  There has only ever been one arbitration under that declaration, and this is it.  No other parties have access to it.  So the particular interpretation of the declaration in this case has no significance for any other cases.

KIEFEL CJ:   But there are questions of statutory construction which would carry over to other situations.

MR YOUNG:   Well, only if there is some substance in the proposition that you can narrow access to physical use as a general proposition.

KIEFEL CJ:   Are you saying the questions which arise under the statute may never arise?

MR YOUNG:   They may never – they will not arise in this context because in the context of this concept of service there has only been one arbitration whilst the declaration was alive.  There cannot be others.  I had perhaps best address the other issue, the second question, your Honours, if that is necessary or convenient. 

Section 44X(1) requires regard to be had to various matters.  The argument on the section by the Port of Newcastle was that subparagraph (1)(e) should be read down and confined to cases where the extension has been brought about by an arbitral determination, either a current one or a past one.  The Full Court rejected that, rightly, because no such limitation appears in the language of the section - at paragraph 243 at page 396 of the application book.  Three contextual reasons are given at 243.  The legislation includes:

instances where the cost has been borne by someone other than the provider or access seeker - 

So that is an indication it is not limited to cases where the extension has been required.  It includes instances:

where the extension was not the outcome of the exercise of –

Part IIA rights, and the language is whose cost “is borne” by someone else.  Does not refer to a third party; it refers to someone else.  Deliberately wide.  If it was intended to confine it to somebody who had obtained an extension by force of a determination, they would be a third party and the cost would be borne by a third party.  Then the Full Court expanded on that by a series of reasons given at page 398.  There are six in all.  A powerful one is paragraph 250:

there is no reason consistent with the evident purpose of Part IIIA why the present value to the provider of an extension [whose cost is] borne by someone else should be taken into account when it was required by Part IIIA, but not in any other case.

That does not make any rational sense in economic terms to import an unstated limitation to that effect.  In our respectful submission, there is no reason to doubt the correctness of the Full Court’s construction of section 44X(1)(e).  It is also supported, as the Full Court went on to say, by other subparagraphs of 44X(1), namely (a) and (b), and the final paragraph dealing about pricing principles.

What they connote is that the only return that providers should get is on investments that it has funded, not returns funded by someone else because that would not be consonant with the pricing principles and that would give a return which was not commensurate with risks that were borne, where the cost is borne by someone else.

The Full Court’s reasons were clear and, in our submission, compelling.  For those reasons, in our submission this case is very much one that turned on its own particular facts associated with export transactions through the Port of Newcastle.  That was the relevant concept of “economic” that the court referred to.  It was not referring to a remote or near or distant financial interest consequentially arising.  It was referring to people who had a direct and immediate interest in accessing the service.  Those are our submissions, if the Court pleases.

KIEFEL CJ:   Yes, thank you.  Mr Moore, the only matter we need to hear from you about is the question of the declaration no longer being extant.

MR MOORE:   Yes, the declaration no longer being extant.  The question we are dealing with here would apply to any other matter that has been declared.

KIEFEL CJ:   Any access for service that is declared.

MR MOORE:   Any access to a service.  For example, a railway line is declared to allow freight operations on it.  On the approach taken by the Full Court and consistent with my learned friend’s submission, you would say what is the centrality of economic activity?  It is for those people who want their freight carried, which means that every person who has a package carried by the freight line would have potentially an economic interest and might need economic access.

So we say it is a question of general importance.  Further, there are activities under foot to try and get this particular port re‑declared.  So the issue is not going to go away.

KIEFEL CJ:   It is not, yes.  There will be a grant of special leave in this matter.  What is your time estimate, Mr Moore?

MR MOORE:   Your Honour, I would like to say a day, but it could ‑ ‑ ‑

KIEFEL CJ:   I would like you to say a day, too.

MR MOORE:   Yes, a day.

MR YOUNG:   It is very much in the hands of my learned friend, your Honour.  It should finish inside a day.

KIEFEL CJ:   It should.  There are two points and I really do not see it is a two ‑ ‑ ‑

MR MOORE:   Yes.  They are primarily statutory constructions, so yes, your Honour.

KIEFEL CJ:   Thank you.  The Court will now adjourn to reconstitute.

AT 11.15 AM THE MATTER WAS ADJOURNED