ACCC v TasPorts
Federal Court of Australia (Victorian Registry)
[2021] FCA 482 (7 May 2021)
Justice Davies
Catchwords
COMPETITION – imposition of a “Marine Precinct Tonnage Charge” (MPTC) after advice of intention to obtain towage and pilotage services from another port services provider – substantial degree of market power – MPTC advised to be payable for the performance of regulatory responsibilities to the State of Tasmania – no assessment of costs of performing these responsibilities – no legal right to request MPTC – charge imposed as a direct response to the attempted entry of a competitor – commercial likelihood of raising future costs of acquiring services from a competitor - conduct had the “likely effect” of substantially lessening competition in the towage market and the pilotage market.
Legislation
Competition and Consumer Act 2010 (Cth) ss 46(1), 76(1), 80, 87B
Federal Court of Australia Act 1976 (Cth) s 21
Summary
The first s 46 case brought by the ACCC under the new (effects based) prohibition was against Tasmanian Ports Corporation Pty Ltd (TasPorts).
On 4 May 2021 the case was dismissed by consent, with TasPorts agreeing to certain Court orders and providing the ACCC with a s 87B Undertaking.
The Court declared:
TasPorts contravened s 46(1) of the CCA ‘by engaging in conduct, between 6 November 2017 and 1 July 2019, in response to the entry or attempted entry of Engage Marine Tasmania Pty Ltd (Engage Marine) as a competitor, that had the likely effect of substantially lessening competition in the markets for towage and pilotage services in Northern Tasmania, by maintaining to Grange Resources Limited (Grange) that Grange was required to pay a new “marine precinct tonnage charge” (MPTC) for vessels calling at Port Latta, in circumstances where:
(1) the Respondent first sought the MPTC from Grange after Grange had notified the Respondent that it would cease acquiring marine services from the Respondent at Port Latta and begin acquiring those services from Engage Marine;
(2) there was a real commercial likelihood if Grange agreed to pay the MPTC that this would have the effect of raising Grange’s future costs of acquiring services from Engage Marine compared with if there had been no MPTC;
(3) the Respondent did not, without Grange’s agreement, have a legal right to require Grange to pay the charge; and
(4) the Respondent sought to impose the MPTC without having conducted a full assessment of the costs to the Respondent of providing the services that the Respondent would need to provide at Port Latta in order to perform the responsibilities imposed on the Respondent under the Deed dated 10 January 2014 between the Respondent, the Marine and Safety Authority and the Crown in right of the State of Tasmania.’
The Court ordered TasPorts to pay costs in the sum of $200,000 but the proceedings were otherwise dismissed.
Representation
Counsel for the Applicant: Mr N. de Young QC with Mr C. Tran
Solicitor for the Applicant: Norton Rose Fulbright
Counsel for the Respondent: Mr M. Hodge QC with Ms C. Van Proctor and Mr D. Preston
Solicitor for the Respondent: Arnold Bloch Leibler
Media
ACCC media release: ‘TasPorts declared to have misused its market power’ (5 May 2021)
ACCC media release: ‘Action against TasPorts for alleged misuse of market power’ (9 December 2019)