Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2021] FCA 720

Federal Court of Australia

Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2021] FCA 720 File number: NSD 2289 of 2018

Judgment of: JAGOT J

Date of judgment: 29 June 2021

Catchwords: COMPETITION – privatisation of Port Botany and Port Kembla – port commitment deeds – where provisions of deeds require the State to compensate port operators if container volumes above specified threshold divert to possible container terminal at the Port of Newcastle – alleged contravention of s 45 of the Competition and Consumer Act 2010 (Cth) – whether hypothetical container terminal at Port of Newcastle would operate in same market as Port Botany or Port Kembla – relevant market existing monopoly market for container terminal services in New South Wales – whether compensation provisions had purpose, effect or likely effect of substantially lessening competition – no likely anti-competitive effect of compensation provisions – where provision of port commitment deed relating to privatisation of the Port of Newcastle required port operator to reimburse the State for compensation paid under Port Botany or Port Kembla deeds – whether reimbursement provisions had purpose, effect or likely effect of substantially lessening competition – no likely anti-competitive effect of reimbursement provisions. STATUTORY INTERPRETATION – Crown immunity – whether s 45 of the Competition and Consumer Act 2010 (Cth) applies to State making and giving effect to port commitment deeds – whether State entering or giving effect to compensation provisions was "carrying on business"– privatisation of ports giving effect to government policy – Crown immunity – whether s 45 applied to first to third respondents making or giving effect to port commitment deeds – derivative Crown immunity – whether application of s 45 to first to third respondents would adversely affect proprietary right or interest of the Crown – where Treasurer had statutory rights to enter privatisation transactions – where legislative intention that statutory rights allow acts necessary or convenient to enter transactions – where compensation provisions necessary or convenient to effect privatisation transactions – s 45 inapplicable by operation of derivative Crown immunity.