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Re Fortescue Metals Group Ltd

Re Fortescue Metals Group Ltd

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Case Copied 30 June 2010 78 min read

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AUSTRALIAN COMPETITION TRIBUNAL
In the matter of Fortescue Metals Group Limited [2010] ACompT 2

Citation:

In the matter of Fortescue Metals Group Limited [2010] ACompT 2

Review from:

Treasurer of the Commonwealth of Australia

Parties:

Fortescue Metals Group Limited

Robe River Mining Co Pty Ltd, North Mining Ltd, Pilbara Iron Pty Ltd, Rio Tinto Limited, Mitsui Iron Ore Development Pty Ltd, Nippon Steel Australia Pty Ltd & Sumitomo Metal Australia Pty Ltd

Hamersley Iron Pty Ltd, Hamersley Iron-Yandi Pty Ltd, Robe River Mining Co Pty Ltd, North Mining Ltd, Pilbara Iron Pty Ltd, Rio Tinto Limited, Mitsui Iron Ore Development Pty Ltd, Nippon Steel Australia Pty Ltd & Sumitomo Metal Australia Pty Ltd

BHP Billiton Iron Ore Pty Ltd and BHP Billiton Minerals Pty Ltd

File number(s):

5 of 2006

3 of 2008

4 of 2008

5 of 2008

Members:

FINKELSTEIN J (PRESIDENT),

MR GRANT LATTA AND

PROFESSOR DAVID ROUND

Date of determination:

30 June 2010

Legislation:

Competition Policy Reform Act 1995 (Cth)

Competition Policy Reform Bill 1995 (Cth)

Government Railways (Access) Act 1998 (WA) ss 3(1), 4, 5, 7, 20, 42, 43, 44, 46

Iron Ore (Hamersley Range) Act 1963 (WA)

Iron Ore (Mt Goldsworthy) Agreement Act 1962 (WA)

Iron Ore (Mt Newman) Agreement Act 1964 (WA)

Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA)

Iron Ore (Robe River) Agreement Act 1964 (WA)

Land Act 1933 (WA)

Mining Act 1978 (WA)

Railways (Access) Act 1998 (WA)

Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 (WA)

Sherman Act (15 USC (1994)) ss 1, 2

Trade Practices Act 1974 (Cth) ss 2, 44AA, 44B, 44F, 44GB, 44GC, 44H, 44K, 44V, 44W, 44X, 44Z, 44ZN, 44ZZ, 44ZZCA, 46, 50

Trade Practices Amendment Act (No 1) 2006 (Cth)

Road Traffic Vehicle Standards Regulations 2002 (WA)

Cases cited:

Application by Chime Communications Pty Ltd (No 2) [2009] ACompT 2

Application by Chime Communications Pty Ltd (No 3) [2009] ACompT 4

Aspen Highland Scheme Corp 738 F2d 1509 (10^th Cir, 1984)

Associated Press v US 326 US 1 (1945)

Australian Competition and Consumer Commission v Australian Medical Association Western Australia Branch Inc (2003) 199 ALR 423

Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2006] FCA 826

BHP Billiton Iron Ore Pty Ltd v National Competition Council (2008) 236 CLR 145

Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374

Brown Shoe Co. v United States 370 US 294 (1962)

City of Anaheim v Southern California Edison Company 955 F2d 1373 (9th Cir, 1992)

ReDuke Eastern Gas Pipeline Pty Ltd [2001] ACompT 2

FTC v Whole Foods 548 F3d 1028 (2008)

Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203

Hecht v Pro-Football Inc 570 F2d 982 (D.C.Cir, 1977); cert denied 436 US 956 (1978)

Kentucky Speedway, LLC v National Association of Stock Car Auto Racing, Inc., 588 F3d 908 (2009)

MCI Communications Company 708 F2d 1081 (7th Cir, 1983)

Melway Publishing Pty Ltd v Roberts Hicks…

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.

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Details

Case: [2010] ACompT 2
Decision Date: 30 June 2010

CaseChat Overview and Summary

The case concerns four separate applications for review of decisions by the Commonwealth Treasurer under s 44H of the Trade Practices Act 1974 (Cth) to declare or not declare services provided by four railway lines. The applicants are Fortescue Metals Group Limited, Robe River Mining Co Pty Ltd, North Mining Ltd, Pilbara Iron Pty Ltd, Rio Tinto Limited, Mitsui Iron Ore Development Pty Ltd, Nippon Steel Australia Pty Ltd and Sumitomo Metal Australia Pty Ltd. The service providers are BHP Billiton Iron Ore Pty Ltd and BHP Billiton Minerals Pty Ltd, Hamersley Iron Pty Ltd, Hamersley Iron-Yandi Pty Ltd, Robe River Mining Co Pty Ltd, North Mining Ltd, Pilbara Iron Pty Ltd, Rio Tinto Limited, Mitsui Iron Ore Development Pty Ltd, Nippon Steel Australia Pty Ltd and Sumitomo Metal Australia Pty Ltd. The Australian Competition Tribunal dismissed the application for review of the decision not to declare the service provided by the Mt Newman railway line. It allowed the application for review of the decision to declare the service provided by the Robe railway and varied the period of the declaration from 20 years to 10 years. It allowed the application for review of the decision to declare the service provided by the Hamersley Rail Network and set aside the declaration. It dismissed the application for review of the decision to declare the service provided by the Goldsworthy railway.

Orders