Application by New South Wales Minerals Council (No 4) [2021] ACompT 5

Australian Competition Tribunal

Application by New South Wales Minerals Council (No 4) [2021] ACompT 5 Review of: Decision of the Commonwealth Treasurer under s 44H of the Competition and Consumer Act 2010 (Cth) not to declare services at the Port of Newcastle made on 16 February 2021

File number: ACT 1 of 2021

Tribunal: JUSTICE O'BRYAN (Deputy President) DR D ABRAHAM (Member) PROF K DAVIS (Member)

Date of determination: 18 November 2021

Catchwords: COSTS – whether Tribunal is empowered by s 44KB to award costs in a review under s 44K(2) of a decision under s 44H not to declare a service – principles to be applied in considering the making of a costs order – whether application for review was unmeritorious – costs not awarded STATUTORY INTERPRETATION – meaning of s 44KB(1) – meaning of the phrase "proceedings for a review of a declaration under section 44K" – meaning of the phrase "a person who has been made a party to proceedings" – circumstances in which Court justified in construing a provision as if it contained additional words

Legislation: Competition and Consumer Act 2010 (Cth) ss 44K, 44KB Acts Interpretation Act 1901 (Cth) s 15AA

Cases cited: ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Application by Glencore Coal Pty Ltd [2016] ACompT 6 Application by New South Wales Mineral Council [2021] ACompT 2 Application by New South Wales Minerals Council (No 2) [2021] ACompT 3 Application by New South Wales Minerals Council (No 3) [2021] ACompT 4 Application by New South Wales Minerals Council [2021] ACompT 2 Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 Carr v Finance Corporation of Australia Ltd (No 2) (1982) 150 CLR 139 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Financial Services Council Ltd v Industry Super Australia Pty Ltd (2014) 222 FCR 455 Kelly v The Queen (2004) 218 CLR 216 Knightsbridge Estates Trust Ltd v Byrne [1940] AC 613 Pilbara Infrastructure v Australian Competition Tribunal (2012) 246 CLR 379 Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal (2017) 253 FCR 115 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13 R v A2 [2019] HCA 35; 373 ALR 214 Re Duke Eastern Gas Pipeline Pty Ltd [2001] ACompT 3; ATPR 41-827 Re Glencore Coal Pty Ltd (No 2) [2016] ACompT 7; 309 FLR 358 Riley v Commonwealth (1985) 159 CLR 1 Sydney Airport Corporation v Australian Competition Tribunal (2006) 155 FCR 124 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531