Hamersley Iron Pty Limited v The National Competition Council

• Jurisdiction: Australia Federal only
• Judgment Date: 05 May 2008
• Neutral Citation: [2008] FCA 598
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Hamersley Iron Pty Limited v The National Competition Council

[2008] FCA 598

TRADE PRACTICES – Access to services under Pt IIIA of the Trade Practices Act 1974 (Cth) – Rail track service – Whether application can be made under s 44F(1) to National Competition Council for recommendation that particular rail track service be declared following rejection of similar application – Res judicata – Abuse of process –Estoppel – Principles by which earlier court orders to be construed – What constitutes an undertaking to a court

Trade Practices Act 1974 (Cth), ss 44B, 44F(1), 44G(2), 44H

Acts Interpretation Act 1901 (Cth), s 33(1)

Federal Court Rules 1979 (Cth), O 35, r 11, O 37 r 6

Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203 considered

BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 cited

Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd (2000) ATPR 41-733 considered

Athens v Randwick City Council (2005) 64 NSWLR 58 followed

Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 cited

Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 cited

Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 cited

Polyaire Pty Ltd v K-Aire Pty Ltd (No 4) (2007) 147 LSJS 65 cited

Ecrosteel Pty Ltd t/as Packs Business Form Brokers v Pefor Printing Pty Ltd (unreported, Sup Ct, NSW, 12 November 1997, Santow J) cited

McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 cited

Repatriation Commission v Nation (1995) 57 FCR 25 cited

Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 cited

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 cited

Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1 cited

Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 cited

Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation (1987) 93 FLR 263 cited

Blacktown Concrete Services Pty Ltd v Ultra Refurbishing & Construction Pty Ltd (in liq) (1998) 43 NSWLR 484 cited

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 cited

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 cited

Turner v London Transport Executive [1977] ICR 952 cited

Hacking v Lee (1860) 9 WR 70 cited

Maxwell v IRC [1962] NZLR 683 cited

Ord v Ord [1923] 2 KB 432 cited

Richards v Richards [1953] P 36 cited

Burman v Woods [1948] 1 KB 111 cited

Mills v Cooper [1967] 2 KB 459 cited

New Brunswick Railway Company v British and French Trust Corporation [1939] AC 1 cited

Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519 cited

Gamser v Nominal Defendant (1977) 136 CLR 145 cited

Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365 cited

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 applied

Papazoglou v Republic of the Philippines (1997) 74 FCR 108 cited

S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 cited

Harman v Secretary of State for the Home Department [1983] 1 AC 280 cited

Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 cited

Thomson Australian Holdings Proprietary Limited v The Trade Practices Commission (1981) 148 CLR 150 cited

Commonwealth v Verwayen (1990) 170 CLR 394 applied

Legione v Hately (1983) 152 CLR 406 applied

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 applied

Halsbury’s Laws of Australia (Butterworths, 1995)

Spencer Bower, Turner and Handley, Res Judicata (3^rd ed, 1996)

J Tarrant, “Construing undertakings and court orders” (2008) 82(2) Australian Law Journal 82

HAMERSLEY IRON PTY LIMITED (ACN 004 558 276) v THE NATIONAL COMPETITION COUNCIL AND THE PILBARA INFRASTRUCTURE PTY LTD (ACN 103 096 340)

VID 1230 OF 2007

WEINBERG J

5 May 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1230 OF 2007

BETWEEN:	HAMERSLEY IRON PTY LIMITED (ACN 004 558 276) Applicant
AND:	THE NATIONAL COMPETITION COUNCIL First Respondent THE PILBARA INFRASTRUCTURE PTY LTD (ACN 103 096 340) Second Respondent

JUDGE:	WEINBERG J
DATE OF ORDER:	5 may 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. Each party, if so advised, file and serve short submissions regarding costs on or before 12 May 2008.

3. Failing the filing of any such submissions, it be ordered that the applicant pay the respondents’ costs, such costs to be taxed in default of agreement.

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 1230 OF 2007

BETWEEN:	HAMERSLEY IRON PTY LIMITED (ACN 004 558 276) Applicant
AND:	THE NATIONAL COMPETITION COUNCIL First Respondent THE PILBARA INFRASTRUCTURE PTY LTD (ACN 103 096 340) Second Respondent

JUDGE:	WEINBERG J
DATE:	5 May 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an application for declaratory and prerogative relief by Hamersley Iron Pty Ltd (Hamersley) against the National Competition Council (the NCC), an independent statutory authority established pursuant to s 29A of the Trade Practices Act 1974 (Cth) (the TPA). The NCC exists primarily to assess progress made by State and Territory Governments in opening up to competition their agencies undertaking business activities. It also provides advice and recommendations to the designated Minister, usually the Federal Treasurer, regarding the declaration of services under the essential facilities provisions of Pt IIIA of the TPA.

2 Hamersley, a wholly owned subsidiary of Rio Tinto Limited, operates various mines in the Pilbara region in Western Australia. It owns and operates a rail track service used to transport iron ore for export. One of its competitors, the Pilbara Infrastructure Pty Ltd (TPI), a wholly owned subsidiary of Fortescue Metals Group Ltd, seeks access to that rail track service.

3 On 16 November 2007 TPI made an application to the NCC under s 44F(1) of the TPA requesting it to recommend to the designated Minister “that a particular service be declared”. The application identified Hamersley as the provider of the service and owner of the facility to which the application related.

4 Hamersley claims that, by reason of certain orders made by Kenny J in Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203) (First Hamersley Iron), the NCC should be prevented from considering or otherwise dealing with TPI’s application.

5 In First Hamersley Iron, a similar application was made by Robe River Mining Co Pty Ltd and a group of associated joint venturers (hereafter described for convenience as Robe River). Kenny J held that the NCC did not have power to recommend declaration of Hamersley’s rail track under Pt IIIA of the TPA because it was not a “service” within s 44B. That was because the rail track involved “the use of a production process” and therefore fell within the exclusion to the definition of “service” in that section.

6 TPI’s application to the NCC, which lies behind this proceeding, involves the same rail track as that featured in First Hamersley Iron, thoughit extends beyond it. Hamersley claims that the NCC remains permanently bound by her Honour’s orders in First Hamersley Iron, and therefore has no power to consider TPI’s application or recommend declaration of the service. That is so despite the fact that TPI was not a party to the earlier proceeding.

7 Hamersley invokes the doctrine of res judicata as the central plank of its case. It also relies upon what it says were undertakings given to the Court by the NCC in First Hamersley Iron, which it submits prevent the NCC from entertaining TPI’s application.

THE LEGISLATIVE SCHEME

8 Part IIIA of the TPA contains a statutory regime for regulated access to what may be described as “essential facilities”. Introduced in 1995, this regime allows the designated Minister, usually the Federal Treasurer, to “declare” a particular “service” pursuant to s 44H. The Minister cannot proceed without a recommendation from the NCC. This means that all declarations must be filtered through the NCC.

9 A declaration of a service overrides what would otherwise be the exclusive rights of the owner of a “monopoly” facility to determine the terms and conditions upon which that owner will supply its services to others. In essence, the focus is upon facilities of national significance, which it would be uneconomic to duplicate and which supply a service, access to which would promote competition, efficiency and the public interest.

10 The first stage of this process is to determine whether the facility is essential. Section 44F(1) provides that the designated Minister, or any other person, may apply to the NCC in writing, asking it to recommend that a particular service be declared. Section 44F(2) states that after receiving the application, the NCC must inform the provider of the service of its receipt, and subsequently recommend to the designated Minister that the service either be declared or that it not be declared. Section 44F(4) provides that in deciding what recommendation to make, the NCC must consider whether it would be economical for anyone to develop another facility that could provide part of the service.

11 Section 44B defines “service” for the purposes of Pt IIIA. Relevantly, it states that “service” means a service provided by means of a facility and includes “the use of an infrastructure facility such as a road or railway line”. However, the section provides that the term “service” does not include “the use of a production process” except to the extent that it is an “integral but subsidiary part of the service”.

12 The NCC cannot recommend and the relevant Minister cannot declare a service to be open to access by a third party unless they are satisfied of all of the matters set out in s...