Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 2) [2021] FCA 1040

Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 2) [2021] FCA 1040

The State was a necessary and proper party as its contractual rights would be affected by the relief sought; accordingly, the ACCC, as the unsuccessful party, should pay its costs. Although NSW Ports brought the cross-claim, the issues were inherently linked to the ACCC's case and the interests of justice require that the ACCC pay the costs of NSW Ports and the State in respect of the cross-claim. For subpoenas served before joinder, the serving party (NSW Ports) bears the compliance costs, but as these form part of NSW Ports' costs of proceedings, the ACCC will ultimately be liable on a party-party basis.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent / First Cross Claimant: NSW Ports Operations Hold Co Pty Ltd ACN 163 262 351; Second Respondent / Second Cross Claimant: Port Botany Operations Pty Ltd ACN 161 204 342; Third Respondent / Third Cross Claimant: Port Kembla Operations Pty Ltd ACN 161 246 582; Fourth Respondent / Fourth Cross Respondent: State of NSW; First Cross Respondent: Port of Newcastle Operations Pty Limited ACN 165 332 990; Second Cross Respondent: Port of Newcastle Investments (Property) Pty Limited ACN 169 286 024; Third Cross Respondent: Port of Newcastle Investments Pty Limited ACN 169 132 441
Jurisdiction
Australia
Judgment Date
31 August 2021
Procedural Posture
Application and Cross Claim / Judgment on Costs After Dismissal of Originating Application and Cross Claim
Outcome
Costs judgment; orders pending
Legal Topics
Joinder of Parties, Costs Orders, Subpoena Compliance Costs
Competition Law Civil Procedure Joinder of Parties Costs Orders Subpoena Compliance Costs

Case Brief

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Parties

Australian Competition and Consumer Commission

Applicant

NSW Ports Operations Hold Co Pty Ltd ACN 163 262 351

First Respondent / First Cross Claimant

Port Botany Operations Pty Ltd ACN 161 204 342

Second Respondent / Second Cross Claimant

Port Kembla Operations Pty Ltd ACN 161 246 582

Third Respondent / Third Cross Claimant

State of NSW

Fourth Respondent / Fourth Cross Respondent

Port of Newcastle Operations Pty Limited ACN 165 332 990

First Cross Respondent

Port of Newcastle Investments (Property) Pty Limited ACN 169 286 024

Second Cross Respondent

Port of Newcastle Investments Pty Limited ACN 169 132 441

Third Cross Respondent

Procedural Posture

Application and Cross Claim / Judgment on Costs After Dismissal of Originating Application and Cross Claim

Legal Issues

  1. 1 Entitlement to costs order for necessary or proper party joined to proceedings
  2. 2 Who should bear the costs of the originating application and cross-claim after both are dismissed
  3. 3 Responsibility for reasonable compliance costs of subpoenas issued prior to joinder

Ratio Decidendi

The State was a necessary and proper party as its contractual rights would be affected by the relief sought; accordingly, the ACCC, as the unsuccessful party, should pay its costs. Although NSW Ports brought the cross-claim, the issues were inherently linked to the ACCC's case and the interests of justice require that the ACCC pay the costs of NSW Ports and the State in respect of the cross-claim. For subpoenas served before joinder, the serving party (NSW Ports) bears the compliance costs, but as these form part of NSW Ports' costs of proceedings, the ACCC will ultimately be liable on a party-party basis.

Court Disposition

Costs judgment; orders pending

Orders

  • Within seven days, the parties confer and provide chambers with agreed or competing proposed orders as to costs reflecting the reasons for judgment published.