Stirling Harbour Services Pty Ltd v Bunbury Port Authority

Stirling Harbour Services Pty Ltd (the appellant) brought an appeal against the Bunbury Port Authority (the respondent). The appellant challenged the decision of the primary judge, who held that the grant of an exclusive licence to a respondent company for towage services in the Port of Bunbury was not anti-competitive. The appellants sought to introduce further evidence regarding events that occurred after the original judgment was delivered, including the identity of the preferred tenderer, the nature and extent of expected price reductions, and the most recent draft of the proposed licence agreement. The primary legal issue was whether the Federal Court of Australia could consider new evidence introduced after the judgment under appeal, in light of the principle that appeals are not rehearings but stricto sensu.

The court examined the applicable legal principles and previous case law on the power of the Federal Court to receive further evidence on appeal. It noted that while some previous decisions limited the scope of s 27 of the Federal Court of Australia Act to matters occurring prior to trial, other High Court decisions suggested that the power could include matters occurring after judgment. The court concluded that the latter view was correct, emphasising the broad powers conferred on the appellate tribunal to make any order it sees fit and to take further evidence for the purposes of an appeal.

The court ultimately held that the appeal was dismissed with costs, finding no error in the primary judge’s conclusion regarding the grant of the exclusive licence. The court found that the appellants had not demonstrated any grounds for the admission of further evidence, and that the appeal was not a rehearing of the case. The court’s decision to dismiss the appeal with costs underscores the importance of adhering to the established legal principles governing the reception of further evidence on appeal.