Glencore Coal Assets Australia Pty Ltd v Port of Newcastle Operations Pty Ltd

2025/00332019

TRADE PRACTICES – Glencore Australia Pty Ltd (Glencore) exports coal through the Port of Newcastle (the Port) – until around May 2014, the Port was owned and operated by a state-owned entity – it was later privatised and subsequently leased and operated by Port of Newcastle Operations Pty Ltd (PNO) – from January 2025, Glencore sought to take advantage of the wharfage charge determined on 5 April 2022 by the Australian Competition Tribunal (the Determination) – PNO contended that the wharfage charge was not available to Glencore under the Determination and that Glencore was instead required to pay PNO’s higher standard rates – at first instance, the primary issue was the proper construction of clause 2.1 of the Determination, considered within the legislative framework of the Ports and Maritime Administration Act 1995 (NSW) (PMAA) – the primary judge held that Glencore was not entitled to access the lower wharfage charge without also being liable for the navigation service charge, in accordance with clause 2.1 of the Determination and s 48(4)(b) of the PMAA – whether the primary judge erred in finding that Glencore could only access the wharfage charge if it met the conditions of clause 2.1 and was also liable to pay the navigation service charge – whether the primary judge erred in finding that the scope of the dispute before the Australian Competition and Consumer Commission and which was resolved by the Determination concerned the terms of access when the appellant was accessing both the navigation service charge and wharfage charge, whereas the dispute resolved by the Determination also included the terms of access to the wharfage charge in and of itself – whether the primary judge ought to have found that clause 2.1 only specified the circumstances in which Glencore could access the navigation service charge and did not specify the circumstances in which the appellant might access the wharfage charge under the Determination – whether the primary judge ought to have found that, on a proper construction of the Determination, the appellant could access the wharfage charge whenever it was the "owner" of cargo within the meaning of s 48 of the PMAA and was liable to pay the charge, regardless of liability for the navigation service charge.