In June last year, the Australian Competition Tribunal decided to declare certain services supplied by the Port of Newcastle. This Decision of the Tribunal was in response to an application by Glencore Coal, one of the users of the Port. The Port of Newcastle sought to overturn the Decision of the Tribunal on a number of grounds to do with the Tribunal’s interpretation of the law. A key point of the application for Judicial Review was that the interpretation by the Tribunal of the word ‘access’ (and previous interpretations by the Full Federal Court) were wrong.

Today, the Court released its Decision on the Application for Judicial Review. Because the Application was, in part, a challenge to previous decisions of the Full Federal Court, the Court appointed a panel of five judges to consider the Application. In a unanimous Decision, the five-member Court decided that the earlier interpretation of these words had been correct. This means that the Decision of the Tribunal to declare services provided by the Port of Newcastle will be upheld and the Port will now have to negotiate with Glencore (and other users of the Port) with the knowledge that, if they cannot agree on terms, the ACCC will have the power to set those terms. It will be interesting to see whether this will encourage applications for declaration of services provided by other ports.

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