Rio Tinto Limited v The Australian Competition Tribunal [2008] FCAFC 6

FEDERAL COURT OF AUSTRALIA

Rio Tinto Limited v The Australian Competition Tribunal [2008] FCAFC 6

TRADE PRACTICES – Pt IIIA ("Access to Services") of Trade Practices Act 1974 (Cth) – railway line in remote area of Western Australia used to transport ore from inland mine to coastal port – another mining company applied to National Competition Council for declaration of a service by reference to access to and use of the railway line – Council recommended to Minister that he declare service on a point to point (Mindy Mindy to Port Hedland) basis – Minister neither declared service nor decided not to do so within the 60 day period referred to in s 44H(9) of the Act, and so was taken to have decided not to declare the service – applicant mining company applied to Australian Competition Council under s 44K of the Act for review of Minister's deemed decision not to declare the service – owner, operator and manager of railway line contended Council's recommendation to Minister invalid because service identified in its recommendation did not conform to service for which application had been made to it, with consequence that the 60 day period had never begun to run and there was no deemed decision to refuse – whether application to Council had been for a point to point service as Council later recommended, or an all points service. Held: (1) while the Council's recommendation must be limited by reference to the particular service applied for, this does not require a pedantic correspondence between the terms of the application and the terms of the recommendation; (2) the application had been for the declaration of a point to point service with result that Council's recommendation was in conformity with the application.

Trade Practices Act 1974 (Cth) Pt IIIA

Re Services Sydney Pty Ltd (2006) 227 ALR 140 cited Re Virgin Blue Airlines Pty Limited (2005) 195 FLR 242 cited RIO TINTO LIMITED (ACN 004 458 404) v THE AUSTRALIAN COMPETITION TRIBUNAL, FORTESCUE METALS GROUP LTD, BHP BILLITON IRON ORE PTY LTD, BHP BILLITON MINERALS PTY LTD AND THE NATIONAL COMPETITION COUNCIL VID 600 OF 2007