The Australian Competition and Consumer Commission’s (ACCC) appeal against a Federal Court decision with NSW Ports is now dead in the water.
The ACCC lodged an appeal after a decision went against them which said a NSW government deed with Ports Kembla and Botany to lock the Port of Newcastle out of being a container terminal was “anti-competitive”.
Yesterday the Federal Court dismissed the ACCC’s appeal against that decision.
“We originally took this action because we were concerned that under the Port Commitment Deeds NSW Ports has an effective monopoly in container port services in NSW for 50 years,” ACCC Commissioner Liza Carver said.
“We appealed this case because we considered that the compensation provisions created a significant barrier to entry. The threat of new entry is an important part of the competitive process, and imposes a competitive discipline on existing businesses, including monopolies.”
At this stage the judgment has been made available only to the parties’ lawyers, on a restricted basis, pending resolution of confidentiality issues. Accordingly, the ACCC cannot yet discuss the reasons for the decision.
But the dismissal is basically a moot point after Lake Macquarie MP Greg Piper’s legislation to remove the container cap on the Port of Newcastle passed through parliament at the end of last year.