Glencore wins access appeal
Glencore has won its appeal over access charges to Port of Newcastle. The Court considered four broad questions (para 9):
(1) Did the Tribunal err in law in concluding that the Service was, in effect, only provided to those parties in control of a ship and, on that basis, confining the scope of its determination to instances where Glencore was in control of a ship being used to load and export coal?
Conclusion: Yes: ‘… the Tribunal misconstrued the terms of the declared Service and so asked itself the wrong questioned … we would set aside the determination and remit the matter to the Tribunal to fix the terms of the scope of the determination in the light of these reasons. The working out of arrangements in the terms of access for Glencore to stipulate a mechanism by which the determined access price would apply to ships carrying coal from Glencore’s mine would also be a matter for the Tribunal in the re-arbitration’ (para 169)
(2) Did the Tribunal err in law in the way it treated Glencore’s claim that there should be regard to the value of past contributions by users of the Port when determining the price to be paid by Glencore for the Service?
Conclusion: Yes: The Tribunal ’made an error of law ‘in failing to have regard to the user contributions on the basis that such contributions could not be relevant to the determination of an appropriate level of efficient costs’ (para 294)
(3) Whether this Court should entertain the ACCC’s separate review application in respect of the decision by the Tribunal?
Conclusion: No.
(4) If error of law has been demonstrated, what is the appropriate form of relief?
Conclusion: The question of scope must be referred back to the Tribunal (para 319) and the question of ‘user contributions and any consequence for the access price arising from a determination of that issue is a matter for the Tribunal and that aspect must be referred back to the Tribunal’ (para 321)
The Full Federal Court concluded (para 323):
For reasons we have given, the application by Glencore should be allowed. The application by the ACCC should be dismissed. The matter should be remitted to the Tribunal for further determination according to law. As to costs, there should be orders for short submissions as to the appropriate orders in light of these reasons. Each party should first file a minute of the orders as to costs that are sought, then there should be written submissions filed on the basis that, unless the Court otherwise orders, the question of costs will be dealt with on the papers. We will also restrict publication of the reasons for judgment for a short period in the light of the fact that there were confidential matters before the Tribunal addressed in argument. In particular, there were matters in the redacted and confidential material which were related to what is found in the last sentence of [229]. There may be other matters of which we are unaware. Thus, there will be orders allowing the parties a short time to make any application for any redaction or orders of suppression over any part of the reasons for judgment.
See
Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145 (Allsop CJ, Beach and Colvin JJ)
Appeal from: Application by Port of Newcastle Operations Pty Ltd [2019] ACompT 1 (Middleton J, Mr R F Shogren and Dr D R Abraham)
See, eg,
Alison Everleigh, ‘Glencore wins appeal in shipping fee fight with Port of Newcastle’ (Lawyerly, 27 August 2020)