Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38

Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38

The application failed because the applicants did not prove that the proposed exclusive tender process, price schedule or licence would have the purpose, effect or likely effect of substantially lessening competition. The Port of Bunbury towage services market was a natural monopoly capable of supporting only one operator, the existing non-exclusive regime gave the incumbent little real competitive constraint, and the fixed-term exclusive tender was likely to create competition for the right to serve the market. The s 46 claim also failed because the grant of the statutory licence was an exercise of a regulatory function and, in any event, was not for a proscribed purpose.

Jurisdiction
Australia
Judgment Date
28 January 2000
Procedural Posture
Application Under Ss 80 and 87 of the Trade Practices Act 1974 (cth) Seeking Declarations and Injunctive Relief Concerning Alleged Contraventions of Part IV / Final Judgment After Hearing
Outcome
Application dismissed with costs.
Legal Topics
['exclusive Dealing' 'substantial Lessening of Competition' 'misuse of Market Power' 'towage Services Licensing' 'natural Monopoly and Contestable Markets' 'tender Process for Exclusive Licence' 'statutory Port Authority Powers']
['competition and Consumer Law' 'trade Practices' 'administrative and Regulatory Law' 'ports and Maritime Services'] ['exclusive Dealing' 'substantial Lessening of Competition' 'misuse of Market Power' 'towage Services Licensing' 'natural Monopoly and Contestable Markets' 'tender Process for Exclusive Licence' 'statutory Port Authority Powers']

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Procedural Posture

Application Under Ss 80 and 87 of the Trade Practices Act 1974 (cth) Seeking Declarations and Injunctive Relief Concerning Alleged Contraventions of Part IV / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Bunbury Port Authority's tender for an exclusive towage services licence had the purpose, effect or likely effect of substantially lessening competition in a relevant market under ss 45 or 47 of the Trade Practices Act 1974 (Cth)." 'Whether the relevant market was the market for provision of towage services, or the right to provide towage services, at the Port of Bunbury.' 'Whether the Port of Bunbury towage services market was sufficiently contestable notwithstanding its natural monopoly characteristics.' 'Whether the proposed price schedule and maximum price cap in the licence would substantially lessen competition.' 'Whether the Bunbury Port Authority had and took advantage of a substantial degree of market power for a proscribed purpose under s 46 of the Trade Practices Act 1974 (Cth).']

Ratio Decidendi

The application failed because the applicants did not prove that the proposed exclusive tender process, price schedule or licence would have the purpose, effect or likely effect of substantially lessening competition. The Port of Bunbury towage services market was a natural monopoly capable of supporting only one operator, the existing non-exclusive regime gave the incumbent little real competitive constraint, and the fixed-term exclusive tender was likely to create competition for the right to serve the market. The s 46 claim also failed because the grant of the statutory licence was an exercise of a regulatory function and, in any event, was not for a proscribed purpose.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed.' "The Applicants are to pay the Respondent's costs of the application." 'Liberty to apply for directions in relation to the basis for taxation of costs.']