Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2023] FCAFC 16

FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2023] FCAFC 16 Appeal from: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2021] FCA 720 Australian Competition and Consumer Commissioner v NSW Ports Operations Hold Co Pty Ltd (No 2) [2021] FCA 1040

File number: NSD 751 of 2021

Judgment of: ALLSOP CJ, YATES and BEACH JJ

Date of judgment: 23 February 2023

Catchwords: COMPETITION – where provisions of port commitment deeds required the State to compensate port operators if certain container volumes divert to a possible container terminal at the Port of Newcastle – whether s 45 of the Competition and Consumer Act 2010 (Cth) contravened – purpose of allegedly anticompetitive conduct – whether purpose of ensuring bidders for port assets did not discount their bids because of the risk of a future change of Government policy was an impugned purpose in all the circumstances – construction of the compensation provisions – whether compensation provisions are indicative of anticipated less than full competitive conduct COMPETITION – likely effect of impugned provisions of port commitment deeds – whether there was a real risk of a container terminal being developed at Newcastle while Botany had capacity – nature of the risk STATUTORY INTERPRETATION – Crown immunity– whether s 45 applies to the State of New South Wales' conduct in privatising port assets – whether the State was "carrying on business" with respect to ports and, if so, nature of the business carried on STATUTORY INTERPRETATION – derivative Crown immunity – principles applicable to derivative Crown immunity including nature and extent of derivative Crown immunity – whether the application of s 45 of the Act to NSW Ports would be in legal effect an application of the provision to the Crown – whether the application of s 45 of the Act to NSW Ports would divest a proprietary, legal, equitable or other right of the State – where the Ports Assets (Authorised Transactions) Act 2012 (NSW) conferred a bundle of legal and statutory rights, interests, powers, authorities and immunities in the undertaking of the transfer of large and valuable assets – where s 45 in its operation would result in the impairment of the existing legal situation of the Executive or Crown – whether s 51 of the Act supports a contrary intention