Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2

Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2

The Tribunal must reconsider the Minister's declaration decisions by applying the correct private profitability test for criterion (b), but as there was insufficient material before the Minister on this test and the Tribunal declined to seek further information under s 44K(6), the Tribunal was not satisfied that it would be uneconomical for anyone to develop another facility for either service; therefore the declarations must be set aside.

Parties
Applicant: Robe River Mining Co Pty Ltd; Applicant: North Mining Ltd; Applicant: Pilbara Iron Pty Ltd; Applicant: Rio Tinto Ltd; Applicant: Mitsui Iron Ore Development Pty Ltd; Applicant: Nippon Steel Australia Pty Ltd; Applicant: Sumitomo Metal Australia Pty Ltd; Applicant: Hamersley Iron Pty Ltd; Applicant: Hamersley Iron-Yandi Pty Ltd; Interested Party: The Pilbara Infrastructure Pty Ltd; Interested Party: Fortescue Metals Group Ltd; Intervener: National Competition Council
Jurisdiction
Australia
Judgment Date
08 February 2013
Procedural Posture
Application for Review / Final Determination Post High Court Remittal
Outcome
Declarations set aside
Legal Topics
Access to Services, Essential Facilities, Review of Ministerial Decisions, Declaration Under Part IIIA, Criterion (b) – Uneconomical to Develop Another Facility, Private Profitability Test, Procedural Fairness, Scope of Tribunal's Review Powers
Competition Law Administrative Law Access to Services Essential Facilities Review of Ministerial Decisions Declaration Under Part IIIA Criterion (b) – Uneconomical to Develop Another Facility Private Profitability Test +2 more

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Parties

Robe River Mining Co Pty Ltd

Applicant

North Mining Ltd

Applicant

Pilbara Iron Pty Ltd

Applicant

Rio Tinto Ltd

Applicant

Mitsui Iron Ore Development Pty Ltd

Applicant

Nippon Steel Australia Pty Ltd

Applicant

Sumitomo Metal Australia Pty Ltd

Applicant

Hamersley Iron Pty Ltd

Applicant

Hamersley Iron-Yandi Pty Ltd

Applicant

The Pilbara Infrastructure Pty Ltd

Interested Party

Fortescue Metals Group Ltd

Interested Party

National Competition Council

Intervener

Procedural Posture

Application for Review / Final Determination Post High Court Remittal

Legal Issues

  1. 1 What is the proper test for criterion (b) under s 44H(4) of the Trade Practices Act 1974 (Cth)?
  2. 2 Was there sufficient material before the Minister to satisfy criterion (b) as properly construed?
  3. 3 Should the Tribunal seek further information through s 44K(6)?

Ratio Decidendi

The Tribunal must reconsider the Minister's declaration decisions by applying the correct private profitability test for criterion (b), but as there was insufficient material before the Minister on this test and the Tribunal declined to seek further information under s 44K(6), the Tribunal was not satisfied that it would be uneconomical for anyone to develop another facility for either service; therefore the declarations must be set aside.

Court Disposition

Declarations set aside

Orders

  • The declaration of Service of the Treasurer as designated Minister made under s 44H of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) in respect of the specified section of the Robe Railway, commencing on 19 November 2008 and expiring on 19 November 2028, is set aside.
  • The declaration of Service of the Treasurer as designated Minister made under s 44H of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) in respect of the specified section of the Hamersley Rail Network, commencing on 19 November 2008 and expiring on 19 November 2028, is set aside.