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

The High Court of Australia considered an appeal by Port of Newcastle Operations Pty Ltd (PNO) against Glencore Coal Assets Australia Pty Ltd concerning access disputes relating to infrastructure at the Port of Newcastle. The dispute centred on the amount and applicability of a navigation service charge and a wharfage charge, which PNO sought to levy on Glencore for the use of port infrastructure. These charges were fixed under New South Wales legislation, but the dispute arose in the context of a declared service under Part IIIA of the *Competition and Consumer Act 2010* (Cth).

The legal issues before the High Court included whether the Australian Competition Tribunal erred in its determination of the range of circumstances in which the navigation service charge was payable, and whether it erred in its calculation of the amount of that charge. The Court was required to interpret the meaning of "access" within Part IIIA of the Act and consider the application of the pricing principles set out in section 44ZZCA of the Act.

The High Court varied the orders of the Full Court of the Federal Court, confining the remittal to the Tribunal to redetermining the scope of the Navigation Service Charge. The Court otherwise dismissed the appeal. This outcome indicates that while the Tribunal's original determination on the scope of the charge was subject to further review, the broader appeal by PNO was unsuccessful.