Application by Port of Newcastle Operations Pty Ltd (No 3) [2022] ACompT 2

AUSTRALIAN COMPETITION TRIBUNAL

Application by Port of Newcastle Operations Pty Ltd (No 3) [2022] ACompT 2 Review from: The arbitration determination by the Australian Competition and Consumer Commission under section 44ZP of the Competition and Consumer Act 2010 (Cth) in relation to an access dispute between Glencore Coal Assets Australia Pty Ltd and Port of Newcastle Operations Pty Ltd

File numbers: ACT 2 of 2018 ACT 3 of 2018

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

Date of Determination: 5 April 2022

Catchwords: COMPETITION – where applications made to Australian Competition Tribunal for review of arbitration determination made by the Australian Competition and Consumer Commission in respect of access dispute between provider and user of a declared service – where access dispute concerned amount of navigation service charge and wharfage charge at Port of Newcastle – where review conducted by the Tribunal by way of "re-arbitration" pursuant to s 44ZP of the Competition and Consumer Act 2010 (Cth) – where application made to Full Federal Court for judicial review of Tribunal's arbitral determination – where Full Court set aside the determination of the Tribunal and remitted the applications to the Tribunal for re-determination according to law – where Full Court decision subsequently appealed to High Court of Australia – where High Court reinstated the Tribunal's arbitral determination of the amount of the navigation service charge but remitted the question of scope of the navigation service charge to the Tribunal for re-determination – the Tribunal's powers on the remitter – orders made varying final determination of Australian Competition and Consumer Commission in manner sought by Port of Newcastle Operations Pty Ltd and not opposed by Glencore Coal Assets Australia Pty Ltd