Port of Newcastle Operations Pty Limited v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39 (08 December 2021) (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ)


Catchwords:


Trade practices – Competition – Access to services – Where declared service under Pt IIIA of Competition and Consumer Act 2010 (Cth) (“Act”) for provision of right to access and use certain infrastructure at Port of Newcastle (“Port”) – Where operator of Port fixed navigation service charge and wharfage charge under Ports and Maritime Administration Act 1995 (NSW) for use of certain port infrastructure – Where access dispute concerned amount of navigation service charge and wharfage charge – Whether Australian Competition Tribunal (“Tribunal”) erred in determining range of circumstances in which navigation service charge payable – Whether Tribunal erred in determining amount of navigation service charge – Meaning of “access” in Pt IIIA of Act – Construction of s 44X(1)(e) of Act – Application of pricing principles in s 44ZZCA of Act.

Words and phrases – “access”, “access dispute”, “competition”, “declaration of a service”, “depreciated optimised replacement cost”, “essential facility”, “navigation service charge”, “physical use”, “pricing principles”, “provider”, “regulated asset base”, “service”, “third party”, “use”, “user contributions”.