Re Fortescue Metals Group Ltd - [2006] ACompT 6

AUSTRALIAN COMPETITION TRIBUNAL
Application by Fortescue Metals Group Limited [2006] ACompT 6
TRADE PRACTICES – review of decision of designated Minister to not declare service – application for intervention – whether s 109(2) of the Trade Practices Act 1974 (Cth) applies – relevant test to be applied.
Trade Practices Act 1974 (Cth): ss 44G, 44H, 44K, 44ZQ, 90A, 101, 109(2), 152CO
Acts Interpretation Act 1901 (Cth): s 13
Trade Practices Regulations 1974: reg 22B(2)
Re Freight Victoria Limited (2002) ATPR 41‑884, followed
Lakes R Us Pty Ltd [2006] A CompT 3, followed
Kioa v West (1985) 159 CLR 550, applied
Re Application by Wylie Steel Pty Ltd (1980) ATPR 40‑170, cited
ReTelstra Corporation Limited (2001) 160 FLR 120, followed
Re Application by Orica IC Assets Limited (2004) ATPR 41‑991, discussed
Re Application by PK Wakeman (1999) ATPR 41‑675, cited
Re Qantas Airways Limited (2003) ATPR 41‑972, discussed
Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203, cited
File No 5 of 2006
RE:APPLICATION FOR REVIEW OF THE DEEMED DECISION BY THE COMMONWEALTH TREASURER OF 23 MAY 2006 UNDER SECTION 44H(9) OF THE TRADE PRACTICES ACT 1974 (CTH) IN RELATION TO THE APPLICATION FOR DECLARATION OF SERVICES PROVIDED BY THE MOUNT NEWMAN RAILWAY LINE
BY:FORTESCUE METALS GROUP LIMITED
Applicant

GOLDBERG J
7 SEPTEMBER 2006
MELBOURNE

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 5 of 2006
RE:APPLICATION FOR REVIEW OF THE DEEMED DECISION BY THE COMMONWEALTH TREASURER OF 23 MAY 2006 UNDER SECTION 44H(9) OF THE TRADE PRACTICES ACT 1974 (CTH) IN RELATION TO THE APPLICATION FOR DECLARATION OF SERVICES PROVIDED BY THE MOUNT NEWMAN RAILWAY LINE
BY:FORTESCUE METALS GROUP LIMITED
Applicant

TRIBUNAL:

GOLDBERG J (President)

DATE OF DECISION:

7 SEPTEMBER 2006

WHERE MADE:

MELBOURNE

THE TRIBUNAL DETERMINES THAT:
1.Subject to the Tribunal’s power to direct the nature and extent of its participation in the proceeding and the review, Rio Tinto Limited be granted leave to intervene in the proceeding and participate in the review.

2.The application by Derek Noel Ammon for leave to intervene in the proceeding and participate in the review is refused with liberty reserved to him to renew his application as he may be advised.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 5 of 2006
RE:APPLICATION FOR REVIEW OF THE DEEMED DECISION BY THE COMMONWEALTH TREASURER OF 23 MAY 2006 UNDER SECTION 44H(9) OF THE TRADE PRACTICES ACT 1974 (CTH) IN RELATION TO THE APPLICATION FOR DECLARATION OF SERVICES PROVIDED BY THE MOUNT NEWMAN RAILWAY LINE
BY:FORTESCUE METALS GROUP LIMITED
Applicant

TRIBUNAL:

GOLDBERG J (President)

DATE:

7 SEPTEMBER 2006

PLACE:

MELBOURNE

REASONS FOR DETERMINATION

These reasons determine applications by Rio Tinto Limited and Mr Derek Noel Ammon for leave to intervene in the proceeding. The applications are opposed by the applicant, Fortescue Metals Group Limited (“Fortescue”) and are not opposed by BHP Billiton Minerals Pty Ltd and BHP Billiton Iron Ore Pty Ltd (together, “BHP”) who is entitled, as the provider of the relevant service, to…

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: [2006] ACompT 6
Decision Date: 7 SEPTEMBER 2006

CaseChat Overview and Summary

In the Australian Competition Tribunal, Fortescue Metals Group Limited (Fortescue) filed an application for review of the Commonwealth Treasurer's decision not to declare a service provided by the Mt Newman railway line. Rio Tinto Limited and Mr Derek Noel Ammon both sought leave to intervene in the proceedings, a request opposed by Fortescue. The Tribunal's task was to determine whether these parties had a sufficient interest in the matter to warrant their intervention. The Tribunal found that while section 109(2) of the Trade Practices Act 1974 provided a basis for intervention, the discretion to grant such leave was not unlimited. The Tribunal held that an applicant for leave to intervene must demonstrate some connection with the subject matter of the review application, sufficient to show that the applicant is not merely an officious bystander. While the Tribunal adopted a generous approach towards allowing intervention, it also emphasised the importance of avoiding unnecessary duplication of submissions and evidence. The Tribunal granted Rio Tinto leave to intervene, subject to certain conditions to avoid duplication, but denied Mr Ammon's application, reserving his right to reapply if he could clarify his position.

Orders