Application by Port of Newcastle Operations Pty Ltd (No 2) [2020] ACompT 3

Application by Port of Newcastle Operations Pty Ltd (No 2) [2020] ACompT 3

The Tribunal would not list the remitted review for immediate hearing because the pending High Court appellate process could affect or nullify the remitted review, the review would involve complex factual and economic issues, a large documentary record and substantial costs, and delay would not cause substantive prejudice to Glencore given the capacity for backdating charges. The Tribunal nevertheless would progress preliminary preparation and granted PNO until 26 February 2021 to bring any application for a notice under s 44ZZOAAA(5), because PNO's evidence justified further time and the application was unlikely to cause additional delay while the appellate process remained pending.

Jurisdiction
Australia
Judgment Date
14 December 2020
Procedural Posture
Review of an ACCC Arbitration Determination Under S 44 ZP of the Competition and Consumer Act 2010 (cth) in Relation to an Access Dispute / Case Management Directions After the Federal Court Set Aside the Tribunal's Determination and Remitted the Applications for Re Determination, While a High Court Special Leave Application Was Pending
Outcome
The remitted review was not listed for immediate hearing; PNO was granted further time to make any application for a notice under s 44ZZOAAA(5) of the Competition and Consumer Act 2010 (Cth), with directions made for submissions and evidence.
Legal Topics
['access Dispute Arbitration' 'review of ACCC Arbitration Determination' 'remittal for Re Determination' 'high Court Special Leave Application' 'further Information Notice Under S 44 Zzoaaa(5) of the Competition and Consumer Act 2010 (cth)' 'extension of Time']
['competition and Consumer Law' 'administrative Review' 'case Management'] ['access Dispute Arbitration' 'review of ACCC Arbitration Determination' 'remittal for Re Determination' 'high Court Special Leave Application' 'further Information Notice Under S 44 Zzoaaa(5) of the Competition and Consumer Act 2010 (cth)' 'extension of Time']

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Procedural Posture

Review of an ACCC Arbitration Determination Under S 44 ZP of the Competition and Consumer Act 2010 (cth) in Relation to an Access Dispute / Case Management Directions After the Federal Court Set Aside the Tribunal's Determination and Remitted the Applications for Re Determination, While a High Court Special Leave Application Was Pending

Legal Issues

  1. 1 ["Whether the Tribunal should proceed to hear the remitted review before PNO's High Court special leave application and any appeal had been determined." 'Whether PNO should be given an extension of time to apply for the Tribunal to issue a notice under s 44ZZOAAA(5) of the Competition and Consumer Act 2010 (Cth).']

Ratio Decidendi

The Tribunal would not list the remitted review for immediate hearing because the pending High Court appellate process could affect or nullify the remitted review, the review would involve complex factual and economic issues, a large documentary record and substantial costs, and delay would not cause substantive prejudice to Glencore given the capacity for backdating charges. The Tribunal nevertheless would progress preliminary preparation and granted PNO until 26 February 2021 to bring any application for a notice under s 44ZZOAAA(5), because PNO's evidence justified further time and the application was unlikely to cause additional delay while the appellate process remained pending.

Court Disposition

The remitted review was not listed for immediate hearing; PNO was granted further time to make any application for a notice under s 44ZZOAAA(5) of the Competition and Consumer Act 2010 (Cth), with directions made for submissions and evidence.

Orders

  • ['By 26 February 2021, PNO is to file and serve any application for the Tribunal to issue a notice pursuant to s 44ZZOAAA(5) of the Competition and Consumer Act 2010 (Cth) together with a copy of the proposed notice, specified affidavits and documents where the notice is addressed to PNO or a related company, and...