Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal

• Jurisdiction: Australia Federal only
• Judgment Date: 24 August 2020
• Neutral Citation: [2020] FCAFC 145
• Date: 24 August 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145

Review of:	Application by Port of Newcastle Operations Pty Ltd [2019] ACompT 1
File numbers:	NSD 1986 of 2019VID 1285 of 2019
Judges:	ALLSOP CJ, BEACH AND COLVIN JJ
Date of judgment:	24 August 2020
Catchwords:	COMPETITION – applications for review of decision of the Australian Competition Tribunal (Tribunal) reviewing decision of the Australian Competition and Consumer Commission (ACCC) – where ACCC made an arbitration determination pursuant to s 44S of Competition and Consumer Act 2010 (Cth) (CCA) – where Tribunal conducted a “re-arbitration” pursuant to s 44ZP of the CCA – where declared service is the right to access and use monopoly infrastructure assets at Port of Newcastle – where access dispute concerns quantum of charges levied for access and use of declared service and proper scope of application of such charges – whether Tribunal erred in determining how declared service is to be interpreted and appropriate scope of application of arbitration determination – whether scope can be justified by reference to the underlying State legislation being the Ports and Maritime Administration Act 1995 (NSW) – where parties agreed to use building block model and depreciated optimised replacement cost methodology to calculate regulated asset base – whether Tribunal erred in deciding that contributions of service users should not be deducted when calculating regulated asset base – meaning of “extensions” in s 44X(1)(e) of the CCA – application of pricing principles in s 44ZZCA and criteria in s 44X(1) of the CCA – whether assessment is forward-looking – appropriate relief – whether matter should be remitted to Tribunal pursuant to s 44ZR(4) of the CCA ; ADMINISTRATIVE LAW – application for judicial review of decision of Australian Competition Tribunal (Tribunal) by Australian Competition and Consumer Commission (ACCC) – where ACCC made arbitration determination pursuant to s 44S of Competition and Consumer Act 2010 (Cth) (CCA) – where Tribunal conducted a “re-arbitration” pursuant to s 44ZP of the CCA – where ACCC sought declaration that Tribunal erred – whether ACCC can seek review pursuant to s 163A(3) of the CCA
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Competition and Consumer Act 2010 (Cth) ss 44AA, 44CA, 44F, 44G, 44H, 44K, 44PC, 44S, 44V, 44W, 44X, 44Y, 44Z, 44ZD, 44ZF, 44ZN, 44ZNB, 44ZO, 44ZP, 44ZQ, 44ZR, 44ZZCA, 87CA, 163A, Part IIIA Competition and Consumer Amendment (Competition Policy Review) Act 2017 (Cth) Competition Policy Reform Act 1995 (Cth) Judiciary Act 1903 (Cth) s 39B Ports and Maritime Administration Act 1995 (NSW) ss 3, 47, 48, 52, 58, 59, 60, 61, 66A, 66B, 66C, 67, Part 5, Divisions 2–6A Trade Practices Amendment (National Access Regime) Act 2006 (Cth)
Cases cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 Application by Glencore Coal Pty Ltd [2016] ACompT 6 ASP Ship Management Pty Limited v Administrative Appeals Tribunal [2006] FCAFC 23; 149 FCR 261 Australasian United Steam Navigation Co Ltd v The Shipping Control Board [1945] HCA 45; (1945) 71 CLR 508 Australian Energy Regulator v Australian Competition Tribunal (No 2) [2017] FCAFC 79; 255 FCR 274 Australian Securities and Investments Commission v Administrative Appeals Tribunal [2011] FCAFC 114; 195 FCR 485 BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234 BHP Billiton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45; 236 CLR 145 Comandate Marine Corp v The Ship “Boomerang I” [2006] FCAFC 106; 151 FCR 403 Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Maratha Envoy) [1978] AC 1 Independent Commission Against Corruption v Cunneen [2015] HCA 14; 256 CLR 1 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 National Roads and Motorists’ Association Ltd v Parkin [2004] NSWCA 153; 60 NSWLR 224 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124; 253 FCR 115 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Pyrene Co Ltd v Scindia Steam Navigation Co Ltd [1954] 2 QB 402 R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; 25 WAR 511 Rio Tinto Limited v Australian Competition Tribunal [2008] FCAFC 6; 246 ALR 1 Sydney Airport Corporation Limited v Australian Competition Tribunal [2006] FCAFC 146; 155 FCR 124 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; 70 NSWLR 344 The Ships “Hako Endeavour”, “Hako Excel”, “Hako Esteem” and “Hako Fortress” v Programmed Total Marine Services Pty Ltd [2013] FCAFC 21; 211 FCR 369 Tisand (Pty) Ltd v The Owners of the Ship MV “Cape Moreton” (ex “Freya”) [2005] FCAFC 68; 143 FCR 43 Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; 233 CLR 528
Date of hearing:	1, 2 & 3 July 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub–area:	Economic Regulator, Competition and Access
Category:	Catchwords
Number of paragraphs:	323
For NSD 1986 of 2019:
Counsel for the Applicant:	Mr N Young QC with Mr N de Young SC
Solicitor for the Applicant:	Clifford Chance LLP
Counsel for the First Respondent:	The First Respondent filed a submitting notice save as to costs
Counsel for the Second Respondent:	Mr C Moore SC with Mr D Roche
Solicitor for the Second Respondent:	Clayton Utz
Counsel for the Third Respondent:	Mr S Lloyd SC with Ms C Dermody
Solicitor for the Third Respondent:	DLA Piper Australia
For VID 1285 of 2019:
Counsel for the Applicant:	Mr S Lloyd SC with Ms C Dermody

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