Application by New South Wales Minerals Council [2021] ACompT 2

Application by New South Wales Minerals Council [2021] ACompT 2

The Tribunal had an implied power to grant leave to a person to participate in a s 44K review so as to be heard, because that power was reasonably required or legally ancillary to the Tribunal's statutory review function. However, the ACCC did not have an interest directly affected by the review decision and had no statutory role in declaration decisions under Part IIIA. Its expertise was not a sufficient interest, and assistance could be obtained from the NCC under s 44K(6). It was therefore neither necessary nor appropriate to grant leave to intervene or to be heard in the nature of amicus curiae.

Jurisdiction
Australia
Judgment Date
20 May 2021
Procedural Posture
Review Under S 44 K of the Competition and Consumer Act 2010 (cth) of a Decision Not to Declare Services; Application for Leave to Intervene / Determination of the Australian Competition and Consumer Commission's Application for Leave to Intervene
Outcome
ACCC application for leave to intervene dismissed
Legal Topics
['declaration of Services Under Part Iiia' 'review Under S 44 K' 'intervention by Non Party' 'implied Procedural Powers of the Australian Competition Tribunal' 'port of Newcastle Access Services']
['competition and Consumer Law' 'infrastructure Access' 'administrative Review' 'tribunal Procedure'] ['declaration of Services Under Part Iiia' 'review Under S 44 K' 'intervention by Non Party' 'implied Procedural Powers of the Australian Competition Tribunal' 'port of Newcastle Access Services']

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Procedural Posture

Review Under S 44 K of the Competition and Consumer Act 2010 (cth) of a Decision Not to Declare Services; Application for Leave to Intervene / Determination of the Australian Competition and Consumer Commission's Application for Leave to Intervene

Legal Issues

  1. 1 ['Whether the Tribunal has power to permit a third person to intervene in a review under s 44K of the Competition and Consumer Act 2010 (Cth).' 'If such power exists, what principles govern its exercise and whether the ACCC should be granted leave to intervene.' "Whether s 109(2), s 44K(5), or implied powers supported the ACCC's application for leave to intervene."]

Ratio Decidendi

The Tribunal had an implied power to grant leave to a person to participate in a s 44K review so as to be heard, because that power was reasonably required or legally ancillary to the Tribunal's statutory review function. However, the ACCC did not have an interest directly affected by the review decision and had no statutory role in declaration decisions under Part IIIA. Its expertise was not a sufficient interest, and assistance could be obtained from the NCC under s 44K(6). It was therefore neither necessary nor appropriate to grant leave to intervene or to be heard in the nature of amicus curiae.

Court Disposition

ACCC application for leave to intervene dismissed

Orders

  • ['The application of the Australian Competition and Consumer Commission dated 21 April 2021 seeking leave to intervene in the proceeding be dismissed.']