ACCC v NSW Ports

Federal Court of Australia (Full Court)
ACCC v NSW Ports Operations Hold Co Pty Ltd
[2023] FCAFC 16 (23 February 2023)
Chief Justice Allsop, Yates and Beach JJ

Allegation of anti-competitive agreements. ACCC unsuccessful at trial. Appeal lodged July 2021. Cross Appeal filed by Port Botany Operations on 18 August 2021.

See ACCC media release for brief summary.

Appeal (unsuccessful) 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

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

Key Legislation

Competition and Consumer Act 2010 (Cth) ss 2, 2B, 2C, 4(1), 4F(1)(a)(i), 4L, 45, 51, 75B