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Re Application by Glencore Coal Pty Ltd

Re Application by Glencore Coal Pty Ltd

Case [2016] ACompT 6 31 May 2016

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AUSTRALIAN COMPETITION TRIBUNAL
Application by Glencore Coal Pty Ltd [2016] ACompT 6

Review from: THE DECISION BY THE COMMONWEALTH TREASURER UNDER SUBSECTION 44K(2) OF THE COMPETITION AND CONSUMER ACT 2010 (CTH) IN RELATION TO THE APPLICATION FOR DECLARATION OF A SERVICE PROVIDED BY PORT OF NEWCASTLE OPERATIONS PTY LTD

File number: ACT 1 of 2016

Tribunal: MANSFIELD J (PRESIDENT)
MR RF SHOGREN (MEMBER)
MR R STEINWALL (MEMBER)

Date of decision: 31 May 2016

Catchwords: COMPETITION – Application for review of a decision by the Minister under s 44K(2) of the Competition and Consumer Act 2010 (Cth) not to declare a service – where service is the right of access and use of monopoly infrastructure provided by the Port of Newcastle Operations Pty Ltd – where Minister not satisfied of criterion (a) of s 44H(4) – proper construction of s 44H(a) – meaning of “access (on increased access)” – whether application of criterion (a) requires counterfactual comparison of a future with access and a future with restricted access – whether “access” entails a legal and enforceable right to access – whether access would promote a material increase in competition in at least one dependent market – whether increased access would promote a material increase in competition in at least one dependent market – existence of residual discretion in relation to that particular criterion – where Notice of Contention that the decision should be affirmed on the additional ground that criterion (f) is not satisfied – application of criterion (f)

Legislation:
Competition and Consumer Act 2010 (Cth)

Ports and Maritime Administration Act 1995 (NSW)

Trade Practices Amendment (National Access Regime) Act 2006 (Cth)

Trade Practices Amendment (Infrastructure Access) Act 2010 (Cth)

Trade Practices Amendment (National Access Regime) Bill 2005 (Cth)

Independent Pricing and Regulatory Tribunal Act 1992 (NSW)

Ports and Maritime Administration Regulation 2012 (NSW)

Cases cited:
Re Application by Robe River Mining Co Pty Ltd

Hamersley Iron Pty Ltd (2013) 274 FLR 346

Re Virgin Blue Airlines Pty Ltd (2005) 195 FLR 242; [2005] ACompT 5

Rail Access Corporation v New South Wales Minerals Council Ltd (1998) 87 FCR 517

Sydney Airport Corporation v Australian Competition Tribunal (2006) 155 FCR 124

Re Fortescue Metal Group Ltd (2010) 271 ALR 256; [2010] ACompT 2

Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379

Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2011) 193 FCR 57

ReTelstra Corporation Ltd (2006) ATPR 42-121

Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237

Scott v Davis (2000) 204 CLR 333

Jacob v Utah Construction and Engineering Ltd (1966) 116 CLR 200

Ratcliffe v Walters (1969) 89 WN (NSW) Pt 1 497

Garcia v National Australia Bank Ltd (1998) 194 CLR 395

Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45

Federal Commissioner of Taxation v Salenger (1988) 19 FCR 378

Public Service Association of SA Inc v Industrial Relations Commission of SA [2011] SASCFC 14

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Application by Glencore Coal Pty Ltd

Details

AGLC: Application by Glencore Coal Pty Ltd [2016] ACompT 6
Case: [2016] ACompT 6
Decision Date: 31 May 2016

CaseChat Overview and Summary

Glencore Coal Pty Ltd applied to the Federal Court for a review of the Minister for Industry’s decision not to declare the right of access and use of monopoly infrastructure provided by the Port of Newcastle Operations Pty Ltd as a service under section 44H of the Competition and Consumer Act 2010. The Minister found that criterion (a) of section 44H(4) was not satisfied, namely that access to the monopoly infrastructure would promote a material increase in competition in at least one dependent market. Glencore argued that the Minister had erred in his interpretation of criterion (a) and did not properly consider the counterfactual comparison of a future with access and a future with restricted access. The court was required to determine whether the Minister’s decision was legally sound and whether there was residual discretion in relation to criterion (a).

The court found that the Minister’s decision was correct. The court held that the proper construction of criterion (a) did not require a counterfactual comparison and that the Minister was not required to consider whether access would promote a material increase in competition in at least one dependent market. The court held that the Minister had the discretion to decide whether access to monopoly infrastructure would promote a material increase in competition in at least one dependent market. The court also found that criterion (f) of section 44H(4) was not satisfied, namely that the declaration of the service would not promote a material increase in competition in at least one dependent market. The court held that the Minister’s decision was not erroneous and that the application for review should be dismissed.

The court dismissed Glencore Coal Pty Ltd’s application for review of the Minister’s decision. The court held that the Minister’s decision was not erroneous and that there was residual discretion in relation to criterion (a). The court also held that the Minister’s decision not to declare the service was not erroneous and that criterion (f) was not satisfied. The court affirmed the Minister’s decision and dismissed the application for review.

Orders