Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124

FEDERAL COURT OF AUSTRALIA

Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124 Application from: Application by Glencore Coal Pty Ltd [2016] ACompT 6 Application by Glencore Coal Pty Ltd (No 2) [2016] ACompT 7

File number: NSD 1147 of 2016

Judges: DOWSETT, BESANKO, MIDDLETON, FOSTER AND GRIFFITHS JJ

Date of judgment: 16 August 2017

Catchwords: ADMINISTRATIVE LAW – consideration of an application for judicial review of a decision made by the Australian Competition Tribunal – where the Tribunal made an order setting aside a decision of the Minister not to declare a service under s 44H of the Competition and Consumer Act 2010 (Cth) and made an order declaring a service pursuant to s 44K(8) of the Act. COMPETITION – consideration of the decision of the Full Court of the Federal Court of Australia in Sydney Airport Corporation Ltd v Australian Competition Tribunal and Others (2006) 155 FCR 124 – where declaration relates to services provided by coal port infrastructure facilities – scope of s 44H(4)(a) and of s 44H(4)(f) – where ordinary meaning of "access" in the context of access to a service is a right or ability to use a service – where the exercise of power under s 44H calls for a comparison between the future state of competition in a dependent market with access and no access to the service or with increased access and restricted access to the service. PRACTICE AND PROCEDURE – consideration of the second respondent's use of a Notice of Contention pursuant to r 36.24 of the Federal Court Rules 2011 (Cth) – where the Tribunal is not a "court appealed from" and the applicant has not served a "notice of appeal" within r 36.24 – where no judicially reviewable error is made out.