Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145

Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145

The Tribunal committed an error of law by misconstruing the scope of 'access' to the declared service under Part IIIA, confining it to physical control of ships, and by failing to have regard to user-funded contributions to extensions and capacity in setting access prices, contrary to statutory requirements for efficient cost assessment and economic efficiency. The determination must be remitted for proper consideration in accordance with the statutory criteria.

Jurisdiction
Australia
Judgment Date
24 August 2020
Procedural Posture
Judicial Review and Statutory Appeal / Final Judgment at Appellate Level
Outcome
Glencore application allowed; ACCC application dismissed; matter remitted to Tribunal for determination according to law.
Legal Topics
['access to Essential Infrastructure' 'arbitration of Access Disputes' 'regulated Asset Base Valuation' 'pricing Principles' 'statutory Interpretation']
['competition Law' 'administrative Law' 'commercial Law'] ['access to Essential Infrastructure' 'arbitration of Access Disputes' 'regulated Asset Base Valuation' 'pricing Principles' 'statutory Interpretation']

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Procedural Posture

Judicial Review and Statutory Appeal / Final Judgment at Appellate Level

Legal Issues

  1. 1 ['Did the Tribunal err in law by improperly restricting the scope of its determination on access to the declared service to circumstances where Glencore controlled or chartered ships?' 'Did the Tribunal err in law by failing to have regard to user-funded contributions when valuing assets for access pricing under the statutory criteria?' "Should the ACCC's separate application for review of the Tribunal's decision be entertained by the Court?" 'What is the appropriate form of relief for any legal error found?']

Ratio Decidendi

The Tribunal committed an error of law by misconstruing the scope of 'access' to the declared service under Part IIIA, confining it to physical control of ships, and by failing to have regard to user-funded contributions to extensions and capacity in setting access prices, contrary to statutory requirements for efficient cost assessment and economic efficiency. The determination must be remitted for proper consideration in accordance with the statutory criteria.

Court Disposition

Glencore application allowed; ACCC application dismissed; matter remitted to Tribunal for determination according to law.

Orders

  • ["The Tribunal's determination is set aside and matter remitted to the Tribunal for determination according to law." 'Each party to file proposed orders as to costs within 7 days.' 'Each party to file submissions on costs within 14 days; question to be dealt with on the papers unless otherwise ordered.' 'Restriction...