BHP Billiton Iron Ore Pty Ltd v The National Competition Council [2006] FCA 1764

BHP Billiton Iron Ore Pty Ltd v The National Competition Council [2006] FCA 1764

The railway track transportation services do not constitute the 'use of a production process' as excluded by s 44B(f) of the Trade Practices Act 1974 (Cth); rather, they are a transport service involving the use of infrastructure to convey goods and not a process that transforms one thing into another. Accordingly, the Goldsworthy rail facility provides a 'service' within the meaning of s 44B. The Hamersley decision was found to be clearly wrong in its expansive interpretation of 'production process'.

Jurisdiction
Australia
Judgment Date
18 December 2006
Procedural Posture
Judicial Review/declaratory Relief / Final Judgment
Outcome
Application in Victorian proceeding dismissed; Declaration in Western Australian proceeding granted
Legal Topics
['access Regime' 'essential Facilities' 'statutory Interpretation' 'production Process Exclusion' 'infrastructure Access' 'jurisdiction of Competition Council']
['competition Law' 'administrative Law'] ['access Regime' 'essential Facilities' 'statutory Interpretation' 'production Process Exclusion' 'infrastructure Access' 'jurisdiction of Competition Council']

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Procedural Posture

Judicial Review/declaratory Relief / Final Judgment

Legal Issues

  1. 1 ["Whether bulk iron ore rail track transportation services are a 'service' within s 44B of the Trade Practices Act 1974 (Cth)" "Proper construction of 'use of a production process' for the purposes of the exclusion in the definition of service" "Relevance of integrated operations to 'production process' exclusion"]

Ratio Decidendi

The railway track transportation services do not constitute the 'use of a production process' as excluded by s 44B(f) of the Trade Practices Act 1974 (Cth); rather, they are a transport service involving the use of infrastructure to convey goods and not a process that transforms one thing into another. Accordingly, the Goldsworthy rail facility provides a 'service' within the meaning of s 44B. The Hamersley decision was found to be clearly wrong in its expansive interpretation of 'production process'.

Court Disposition

Application in Victorian proceeding dismissed; Declaration in Western Australian proceeding granted

Orders

  • ['The application be dismissed (Victorian Proceeding).' 'The question of costs be adjourned to a date to be fixed (both proceedings).' 'Parties to file and serve written submissions on costs by 12 noon on 9 February 2007 (both proceedings).' 'Declaration that the bulk iron ore rail track transportation services...