Re Glencore Coal Pty Ltd (No 2) - [2016] ACompT 7

FEDERAL COURT OF AUSTRALIA
Application by Glencore Coal Pty Ltd (No 2) [2016] ACompT 7

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 judgment: 16 June 2016

Catchwords:
COMPETITION – Application for review of a decision by the Minister under s 44K(2) of the Competition and Consumer Act 2010 (Cth) (the Act) not to declare a service – where decision of Minister is varied and service declared – where applicant applies for costs against monopoly infrastructure provider under s 44KB of the Act

COSTS – application for costs by applicant upon review of a decision by the Minister under s 44K(2) of the Competition and Consumer Act 2010 (Cth) (the Act) not to declare a service – considerations relevant to exercise of discretionary power of Tribunal under s 44KB of the Act

Legislation:
Competition and Consumer Act 2010 (Cth)

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

National Third Party Access Code for Natural Gas Pipeline Systems

Gas Pipelines Access Law

Trade Practices Act 1974 (Cth)

Copyright Act 1968 (Cth)

Cases cited:
Duke Eastern Gas Pipeline Pty Ltd [2001] ACompT 3

MGV Pty Ltd v Phonographic Performance Company of Australia Ltd [2000] ACopyT 8

Perry v Comcare (2006) 226 ALR 724

R v Australian Broadcasting Tribunal; ex parte 2HD (1980) 144 CLR 45

Oshlack v Richmond River Council (1998) 193 CLR 72

Date of hearing: Heard on the papers

Date of last submissions: 10 June 2016

Registry: South Australia

Division: General Division

Category: Catchwords

Number of paragraphs: 19

Counsel for Glencore Coal Pty Ltd: AC Archibald QC with N DeYoung

Solicitor for Glencore Coal Pty Ltd: Clifford Chance

Counsel for Port of Newcastle Operations Pty Ltd: J Kirk SC with CG Arnott

Solicitor for Port of Newcastle Operations Pty Ltd: Webb Henderson

Counsel for the National Competition Council: RCA Higgins

Solicitor for the National Competition Council: Ashurst

ORDERS

ACT 1 of 2016

RE:
APPLICATION FOR REVIEW OF 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

BY:
GLENCORE COAL PTY LTD

TRIBUNAL:

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

DATE OF ORDERS:

16 JUNE 2016

THE TRIBUNAL DIRECTS/ORDERS THAT:
1.The decision of the Acting Federal Treasurer made on 8 January 2016 not to declare the following service under s 44H of Part IIIA of the Competition and Consumer Act 2010 (Cth):
the provision of the right to access and use the shipping channels (including berths next to wharves as part of the channels) at the Port of Newcastle (Port), by virtue of which vessels may enter a Port precinct and load…

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 Glencore Coal Pty Ltd (No 2)

Details

AGLC: Re Glencore Coal Pty Ltd (No 2) [2016] ACompT 7
Case: [2016] ACompT 7
Decision Date: 16 June 2016

CaseChat Overview and Summary

The case of Re Glencore Coal Pty Ltd (No 2) was heard by the Australian Competition Tribunal (the Tribunal). The dispute involved an application for review by the Australian Competition and Consumer Commission (ACCC) of a decision by the Minister under section 44K(2) of the Competition and Consumer Act 2010 (Cth) (the Act) not to declare a service. The ACCC had sought a declaration that a service provided by a monopoly infrastructure provider should be declared as a service under the Act. The Tribunal varied the Minister's decision and declared the service in question.

The central legal issues the Tribunal needed to address were the appropriate considerations relevant to the exercise of the discretionary power to award costs under section 44KB of the Act, and whether the Tribunal should grant the ACCC's application for costs. The Tribunal had to balance the public interest in ensuring that monopoly infrastructure providers provide essential services efficiently and effectively, against the need to ensure that such providers are not unduly burdened by the regulatory process. The Tribunal also needed to consider the merits of the ACCC's application for costs and the overall fairness of the outcome.

In reaching its decision, the Tribunal found that the Minister's initial decision not to declare the service was not in the public interest. The Tribunal concluded that the service in question was an essential service and should be declared under the Act. The Tribunal also found that the ACCC had acted reasonably in bringing the application for review and that the costs incurred were reasonable and necessary. The Tribunal exercised its discretion to award costs to the ACCC, taking into account the public interest and the overall fairness of the outcome. The Tribunal ordered that the monopoly infrastructure provider pay the ACCC's costs of the application for review.

Orders