BHP Billiton Iron Ore v The National Competition Council

• Jurisdiction: Australia Federal only
• Judgment Date: 05 October 2007
• Neutral Citation: [2007] FCAFC 157
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157

TRADE PRACTICES – consideration of whether an application to the National Competition Council for a declaration recommendation under s 44F of Part IIIA of the Trade Practices Act 1974 (‘the Act’) concerning a proposed use by an access seeker of the Mt Newman and Goldsworthy Rail Lines from the Pilbara region to Port Hedland in the State of Western Australia, is a ‘service’ within the meaning of s 44B of the Act

TRADE PRACTICES – consideration of the meaning of the term ‘service’ in s 44B of the Act and the meaning of the words of exclusion ‘the use of a production process’ in the definition of that term and the exception to the exclusion – meaning of production process considered – consideration of whether access sought to a step in a production process also excluded – consideration of the background to the introduction of Part IIIA of the Act and the vice sought to be addressed by the introduction of Part IIIA into the Act

PRACTICE AND PROCEDURE – consideration of the principles informing the circumstances in which a Judge of the Court might elect not to follow an earlier decision of a single Judge of the Court – consideration of the principles informing the admissibility of expert evidence

COURTS AND JUDICIAL SYSTEM – precedent – decision on statutory construction – circumstances in which previous decision should not be followed

EVIDENCE – consideration of the principles informing the admissibility of expert evidence

WORDS AND PHRASES – production process

Trade Practices Act 1974 (Cth), ss 2, 44AA, 44B, 44D, 4E, 44F(1), 44F(2)(a), 44F(2)(b), 44F(4), 44G(2), 44G(2)(a) - (f), 44H, 44H(1), 44H(9), 44S, 44U, 44V, 44V(2), 44V(3), 44W, 44W(1), 44X(1), 44X(1)(a), 44ZP, 44ZZCA

Trade Practices Amendment (National Access Regime) Act 2006 (No. 92, 2006)

Sherman Act 1890, 15 U.S.C. 1

Trade Practices Amendment (National Access Regime) Act 2006

Acts Interpretation Act 1901 (Cth), s 15AA, s 15AB

Evidence Act 1995 (Cth), ss 55(1), 76(1), 79

Federal Court Rules, O 10.1(2)(j)

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

Hamersley Iron Pty Ltd v National Competition Council 91999) 164 ALR 203

Australian Communist Party v The Commonwealth (1951) 83 CLR 2

Oil Basins Limited v BHP Petroleum Pty Ltd (unreported, Full Court of the Supreme Court of Victoria, 27 May 1988)

Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106

Lee Vanit v The Queen (1997) 190 CLR 378

BHP Billiton Iron Ore Pty Ltd v The National Competition Council [2006] FCA 1764

Hematite Petroleum Pty Ltd & Anor v The State of Victoria (1983) 151 CLR 599

Hicks v Minister for Immigration and Multicultural Affairs & Indigenous Affairs [2003] FCA 757

Takapana Investments Pty Ltd v Teco Information Systems Co. Ltd (1998) 82 FCR 25

Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1997) 150 ALR 117

La Macchia v Minister for Primary Industries and Energy & Anor (1992) 110 ALR 201

Hamilton Island Enterprises Pty Ltd v FCT [1982] 1 NSWLR 113

Bank of Western Australia Limited & Ors v Commissioner of Taxation (1994) 55 FCR 233

Bradley v Armstrong (1981) 55 FLR 355

Re Rothercroft Pty Ltd (1986) 4 NSWLR 673

Deputy Commissioner of Taxation v Access Finance Corporation Pty Ltd (1987) 8 NSWLR 557

Magman International Pty Ltd & Ors v Westpac Banking Corporation (1991) 32 FCR 1

Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485

Nezovic & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 190

Marr v Australian Telecommunications Corporation & Ors (1991) 34 FCR 82

Farah Constructions Pty Ltd & Ors v Say‑Dee Pty Ltd [2007] HCA 22

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

Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Ltd (1976) 25 FLR 169

NT Power Generation Pty Ltd v Power and Water Authority & Anor (2004) 219 CLR 90

CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384

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

Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511

Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300

Woodside Energy Ltd v Commissioner of Taxation 155 FCR 357

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354

Neowarra v Western Australia (No. 1) (2003) 134 FCR 208

Ramsay v Watson (1961) 108 CLR 642

HG v R (1999) 197 CLR 414

Trade Practices Commission v Arnott’s Ltd (No. 5) (1990) 21 FCR 324

Other References

H Hartman and J Mutmansky, Introductory Mining Engineering (2^nd ed, 2002)

C E Gregory, A Concise History of Mining (1980)

The BHP Recreation Review vol 12(1) (1934) reprinted in Light Railways No 164 (April, 2002)

Annual Report of the Mines Department (1915) (Qld)

The Great Cobar Copper-mining Company Tramway Act 19884 (NSW)

Wills’ Mineral Processing Technology (7^th ed, 2006)

J Gilchrist, Extraction Metallurgy (3^rd ed, 1989)

C Bodsworth, The Extraction and Refining of Metals (1994)

R D Walker, Modern Ironmaking Methods (1986)

C Moore & R I Marshall, Steelmaking (1991)

National Competition Policy: Report by the Independent Committee of Inquiry (August 1993) by Professor Hilmer, M Raynor and G Taperell

Competition Principles Agreement, 11 April 1995

Arbitrary Refusals to Deal and the ‘Essential Facility’ Doctrine, Antitrust Law, Areeda and Hovenkamp, 2^nd Ed, Vol. IIIA

Essential Facilities: An Epithet in Need of Limiting Principles, Professor Phillip Areeda, 58 Antitrust Law Journal p 841

The Essential Facilities Doctrine under US Antitrust Law, Professor Robert Pitofsky, Donna Patterson and Jonathan Hooks, 70 Antitrust Law Journal 443

The Essential Facilities Doctrine and Intellectual Property Rights: A Response to Pitofsky, Patterson and Hooks, Paul Marquardt and Mark Leddy, 70 Antitrust Law Journal 847

National Third Party Access Code for Natural Gas Pipeline Systems

BHP BILLITON IRON ORE PTY LTD v THE NATIONAL COMPETITION COUNCIL AND FORTESCUE METALS GROUP LIMITED

VID 14 of 2007

BHP BILLITON IRON ORE PTY LTD and BHP BILLITON MINERALS PTY LTD v THE NATIONAL COMPETITION COUNCIL and FORTESCUE METALS GROUP LIMITED

wad 6 of 2007

SUNDBERG, FINKELSTEIN & GREENWOOD JJ

5 octoBER 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 14of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BHP BILLITON IRON ORE PTY LTD Appellant
AND:	THE NATIONAL COMPETITION COUNCIL and FORTESCUE METALS GROUP LIMITED Respondents

JUDGES:	SUNDBERG, FINKELSTEIN & GREENWOOD JJ
DATE OF ORDER:	5 octobER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the costs of the respondents of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY wad 6 of 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
between:	BHP BILLITON IRON ORE PTY LTD and BHP BILLITON MINERALS PTY LTD Appellants
AND:	THE NATIONAL COMPETITION COUNCIL and FORTESCUE METALS GROUP LIMITED Respondents

JUDGES:	SUNDBERG, FINKELSTEIN & GREENWOOD JJ
DATE OF ORDER:	5 octoBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellants pay the costs of the respondents of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 14 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BHP BILLITON IRON ORE PTY LTD Appellant
AND:	THE NATIONAL COMPETITION COUNCIL and FORTESCUE METALS GROUP LIMITED Respondents
IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY wad 6 of 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
between:	BHP BILLITON IRON ORE PTY LTD and BHP BILLITON MINERALS PTY LTD Appellants
AND:	THE NATIONAL COMPETITION COUNCIL and FORTESCUE METALS GROUP LIMITED Respondents

JUDGES:	SUNDBERG, FINKELSTEIN & GREENWOOD JJ
DATE:	5 oCTOBER 2007
WHERE MADE:	MELBOURNE

REASONS FOR JUDGMENT

SUNDBERG J

1 Each appeal should be dismissed. I agree generally with Greenwood J’s reasons for taking this course.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg .

Associate:

Dated: 5 October 2007

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 14 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	BHP BILLITON IRON ORE PTY LTD Appellant
AND:	THE NATIONAL COMPETITION COUNCIL and FORTESCUE METALS GROUP LIMITED Respondents
IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY wad 6 of 2007
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
between:	BHP BILLITON IRON ORE PTY LTD and BHP BILLITON MINERALS PTY LTD Appellants
AND:	THE NATIONAL COMPETITION COUNCIL and FORTESCUE METALS GROUP LIMITED Respondents

JUDGES:	SUNDBERG, FINKELSTEIN & GREENWOOD JJ
DATE OF ORDER:	5 octoBER 2007
WHERE MADE:	MELBOURNE

REASONS FOR JUDGMENT

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