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

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 2019 VID 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