Australian Competition and Consumer Commission v Australian Competition Tribunal [2020] FCAFC 154

Federal Court of Australia

Australian Competition and Consumer Commission v Australian Competition Tribunal [2020] FCAFC 154 Review of: Application by Port of Newcastle Operations Pty Ltd [2019] ACompT 1

File number: VID 1285 of 2019

Judgment of: ALLSOP CJ, BEACH AND COLVIN JJ

Date of judgment: 16 September 2020

Catchwords: COSTS – where Australian Competition and Consumer Commission brought separate application to review decision by the Australian Competition Tribunal – where application by ACCC dismissed on basis that application should not have been commenced – whether costs should follow the event – no order as to costs

Legislation: Federal Court of Australia Act 1976 (Cth) s 43

Cases cited: Australian Competition and Consumer Commission v Australian Competition Tribunal [2017] FCAFC 150; 254 FCR 341 CrownBet Pty Ltd v Australian Competition Tribunal [2017] FCAFC 157 CrownBet Pty Ltd v Australian Competition Tribunal (No 2) [2017] FCAFC 160 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145 Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (in liq) [2011] FCAFC 136; 197 FCR 113 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: Economic Regulator, Competition and Access

Number of paragraphs: 12

Date of last submissions: 7 September 2020 (Applicant & Second Respondent)

Date of hearing: Determined on the papers

Counsel for the Applicant: Mr S Lloyd SC with Ms C Dermody

Solicitor for the Applicant: DLA Piper Australia

Counsel for the First Respondent: The First Respondent filed a submitting notice save as to costs

Counsel for the Second Respondent: Mr C Moore SC with Mr D Roche

Solicitor for the Second Respondent: Clayton Utz

Counsel for the Third Respondent: The Third Respondent did not file submissions

ORDERS VID 1285 of 2019

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant

AND: AUSTRALIAN COMPETITION TRIBUNAL First Respondent

PORT OF NEWCASTLE OPERATIONS PTY LTD (ACN 165 332 990) Second Respondent

GLENCORE COAL ASSETS AUSTRALIA PTY LTD (ACN 163 821 298) Third Respondent

order made by: ALLSOP CJ, BEACH AND COLVIN JJ DATE OF ORDER: 16 September 2020

THE COURT ORDERS THAT:

1. There be no order as to costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT: 1 Glencore Coal Assets Australia Pty Ltd and the Australian Competition and Consumer Commission (ACCC) each brought applications to review a decision by the Australian Competition Tribunal on the re-arbitration of a dispute over the terms of access to the Port of Newcastle. The respondent to the arbitral process, Port of Newcastle Operations Pty Ltd (PNO) was the respondent to both review applications. 2 For the most part, the two review applications raised the same issues. The application by the ACCC raised two additional matters not raised by Glencore. First, the application claimed that the Tribunal's decision should be reviewed on the grounds of legal unreasonableness. Second, the ACCC sought declaratory relief. 3 The Court determined that the application by Glencore should be allowed. On that application orders were made that the decision of the Tribunal should be set aside and the matter was remitted to the Tribunal for determination according to law. 4 The application by the ACCC was dismissed. The reasons for doing so have been given: Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145 at [295]–[314]. By way of summary not intended to replace those reasons as more fully expressed, in our view the separate proceedings brought by the ACCC should not have been commenced. In the statutory arbitral process the subject of the review proceedings, the ACCC was the original decision-maker and any decision by the Tribunal would take effect as an exercise of power by the ACCC. Therefore, it was not appropriate for the ACCC to be agitating complaints about what was a bilateral arbitral process if the parties did not seek to do so. If, as in the present case, one of the parties raised a concern then it may be appropriate for the ACCC to make submissions. However, the content of those submissions should be guided by what are commonly known as the Hardiman principles. Accordingly, the ACCC's active appearance in any proceedings should be regarded as exceptional and should, in general, be limited to submissions going to powers and procedures rather than the appropriate outcome. 5 In those circumstances, we invited the parties to make submissions as to the appropriate costs order. PNO says that costs should follow the event on the application by the ACCC and there should be an order in the proceedings commenced by the ACCC for the ACCC to pay the costs of PNO. The ACCC says that the ACCC and PNO should each bear their own costs of the application, alternatively that any order for costs in favour of PNO should be limited to the costs of the claim of unreasonableness, the claim for a declaration and the issue raised by the Court as to whether proceedings ought to have been commenced by the ACCC. We note that as to each of these issues there were no substantive submissions advanced by PNO and PNO's costs associated with those aspects are not likely to be of any significance. 6 The award of costs is discretionary: s 43 of the Federal Court of Australia Act 1976 (Cth). The discretion to award costs is unconfined, but must be exercised judicially, that is according to relevant considerations and taking account of the contextual features and facts of the litigation: Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (in liq) [2011] FCAFC 136; 197 FCR 113 at [4]. Settled principle guides the exercise of the discretion: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [38]. Generally, the discretion is exercised in favour of the successful party: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 at [25]. 7 Although PNO has been successful on the application, its success has been limited. The application by Glencore was successful and the decision of the Tribunal (which PNO sought to uphold) has been set aside. If the proper course had been followed, then given the approach adopted by the ACCC in the proceedings, the consequence would have been that the ACCC would have made submissions on Glencore's application. 8 It is submitted for PNO that, unnecessarily, it had to deal with two sets of proceedings, file additional submissions and deal with an extra set of solicitors and counsel. However, save for the limited procedural requirements of dealing with a separate set of proceedings, PNO would still have had to deal with two sets of submissions and an extra set of solicitors and counsel if the ACCC had made submissions on Glencore's application rather than commence its own proceedings. In any event, the form of submissions that PNO sensibly adopted involved responding to Glencore's claims and adopting rather than duplicating that response for the purposes of the ACCC's application. 9 It is further submitted for PNO that the role adopted by the ACCC was not confined to the making of submissions going to powers and procedures, but rather it adopted a partisan stance in which it sought to persuade the Court that the Tribunal's decision was wrong on the merits. However, the nature of the application for review was such that the underlying merits were not in issue. What was required was a demonstration of legal error of a kind that would justify an order setting aside the Tribunal's decision. The nature of the errors alleged substantially concerned matters of construction of relevant legislation and whether the approach adopted by the Tribunal conformed to the requirements of the legislation. It may be accepted that the ACCC adopted a partisan stance as is reflected in the fact that it commenced its own application for review and did not confine its submissions to the construction issues. However, having regard to the nature of the issues, in substance the approach adopted by the ACCC did not result in a significant focus upon issues outside those that would be expected to have been addressed if the ACCC had confined itself to the making of appropriate submissions on the Glencore application. 10 PNO submits that an analogy should be drawn with the approach adopted in CrownBet Pty Ltd v Australian Competition Tribunal (No 2) [2017] FCAFC 160. Those proceedings are not analogous. They concerned an application by Tabcorp to the Tribunal for an authorisation to acquire shares in a competitor. In proceedings of that kind, the ACCC may appear before the Tribunal as a contradictor. It did so. CrownBet also appeared to oppose the application. The Tribunal granted the authorisation subject to conditions. Each of the ACCC and CrownBet sought judicial review. The ACCC's application succeeded on the basis that the Tribunal had failed to consider a central aspect of the ACCC's case: Australian Competition and Consumer Commission v Australian Competition Tribunal [2017] FCAFC 150; 254 FCR 341. CrownBet had not itself advanced that case before the Tribunal. However, by its own separate application it sought to complain that the case advanced by the ACCC had not been considered. In those circumstances, the Court dismissed the application by CrownBet: CrownBet Pty Ltd v Australian Competition Tribunal [2017] FCAFC 157. The reasons for doing so were expressed in the following terms at [2]: Whilst the ACCC was entitled to succeed on that argument before this Court (since the argument concerned how its own case had been dealt with by the Tribunal), CrownBet was not. In substance, CrownBet was seeking to argue that it should be granted relief because the Tribunal had overlooked part of the ACCC's case. Had CrownBet's case in this Court been heard separately from the ACCC's it would have failed. CrownBet can be in no better position just because its case was heard at the same time as the ACCC's. 11 Therefore, CrownBet was not in the same circumstances as the ACCC in the present case. It had no complaint to raise itself and it did not have a statutory role of a kind that meant that it could make submissions in accordance with Hardiman principles. 12 It is also relevant that PNO raised no objection to the course adopted by the ACCC. The issue as to the proper role of the ACCC was raised by the Court shortly prior to the hearing of the appeal after all parties had filed written submissions. The issue itself was only substantively addressed by the ACCC. Further, the principal contentions raised by the ACCC concerning the relevant statutory provisions have been substantially accepted. In our view, in all the circumstances it is not appropriate to treat PNO as if it has been successful in the substantive defence of the ACCC's application and the appropriate order is that there should be no order as to costs. For the reasons given, this is not a case where the principle that costs follow the event should be applied. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop and Justices Beach and Colvin.

Associate: Dated: 16 September 2020