Port of Newcastle Operations Pty Ltd v The Australian Competition Tribunal & Ors

Port of Newcastle Operations Pty Ltd sought special leave to appeal from a decision of the Full Court of the Federal Court of Australia. The dispute concerned the interpretation of provisions within the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)) relating to access to infrastructure, specifically the Port of Newcastle's shipping channels. The applicant argued that the Full Court's interpretation of "access (or increased access)" was erroneous and that recent legislative amendments, while not rendering the issue moot, highlighted the need for clarification. Glencore Coal Pty Ltd and the Commonwealth of Australia were also parties to the proceedings.

The central legal issue before the High Court was the correct interpretation of the phrase "access (or increased access)" as a trigger for a declaration under Part IIIA of the *Trade Practices Act 1974*. Specifically, the applicant contended that the Full Court, by following previous Full Federal Court decisions, had incorrectly interpreted "increased access" as not requiring a comparison with the existing state of access. This, the applicant argued, led to an unnatural reading of the legislation and potentially drastic readjustments of property rights and freedom of contract without sufficient regard to the actual impact on competition. The applicant also raised the question of whether the recent legislative amendments, which had passed since the Full Court's decision, rendered the appeal moot, though they argued it did not.

The applicant's submission was that "increased access" must inherently involve a comparison to a pre-existing state of affairs, meaning access over and above what is currently afforded. They argued that the Full Court's interpretation, which did not require this comparison and instead focused on characterising the facility as an essential facility, was wrong and not cured by the subsequent legislative changes. The applicant maintained that the words "access (or increased access)" remained unaltered in their meaning and that the legislative amendments, while clarifying other aspects, did not fundamentally change the interpretation of this core phrase. The Commonwealth, through its submissions, supported the granting of special leave, arguing that the Full Court's construction of section 44H(4)(a) was unsustainable and had produced a jurisprudence lacking coherence when considered alongside other relevant decisions.