Port of Newcastle Operations Pty Limited v. Glencore Coal Assets Australia Pty Ltd & Ors

Lower Court Judgment

24/08/2020 Federal Court of Australia (Allsop CJ, Beach and Colvin JJ)

[2020] FCAFC 145

Catchwords

Competition law – Arbitration determination – Third party access – Calculation of user contributions – Where applicant operator of Port of Newcastle – Where provision of access and use of Port shipping channels declared service pursuant to Pt IIIA of Competition and Consumer Act 2010 (Cth) – Where applicant levies certain charges payable by vessel owner or charterer in respect of use of Port infrastructure – Where first respondent coal mining company exported coal through Port via both own chartered vessels and vessels owned by other persons – Where first respondent sought arbitration by Australian Competition and Consumer Commission (“ACCC”) of dispute about quantum of charge – Where ACCC and Australian Competition Tribunal on review determined first respondent could not arbitrate terms on which other persons’ vessels carrying first respondent’s coal were charged – Where parties agreed ACCC use “depreciated optimised replacement cost methodology” to calculate asset base component of appropriate charge – Where ACCC and Tribunal on review decided s 44X(1)(e) required it to deduct historical service user contributions to Port infrastructure from asset base in calculation of charge – Where applicant unsuccessfully appealed to Full Court of Federal Court – Whether persons with economic interest in arbitration determination or who causes access to occur are third party for purposes of Pt IIIA – Proper approach to calculation of historical user contributions in charge.