Gilbert + Tobin has advised NSW Ports Operation Hold Co Pty Ltd (NSW Ports) in successfully defending an appeal by the ACCC to the Full Federal Court, following a Federal Court decision dismissing proceedings commenced by the ACCC regarding the 2013 privatisation of Port Botany and Port Kembla.

The legal action, which commenced at the end of 2018, concerned agreements entered into between NSW Ports and the State of New South Wales as part of the terms of the $5.2 billion privatisation. The ACCC alleged that terms of the privatisation had an anti-competitive purpose and effect, in relation to the possibility for the development of a container terminal at Newcastle.

In June 2021, the Federal Court dismissed the ACCC’s case, finding that the Competition and Consumer Act 2010 (Cth) did not apply to the terms of the privatisation by reason of crown immunity and so-called derivative crown immunity.  Further, and in any event, the Court found that the terms of the privatisation had no anti-competitive purpose, likely effect or effect.

Yesterday the Full Federal Court unanimously dismissed an appeal brought by the ACCC.  The win is a testament to NSW Ports commitment to play a role in ensuring a thriving and successful container transportation industry throughout NSW. The successful outcome also highlights the strategic depth and expertise of the G+T team, and in particular our experience in the infrastructure and supply chain sectors which remain a key focus for the ACCC.

Elizabeth Avery, G+T Competition, Consumer + Market Regulation Group Head, who led the defence said:

"We are of course thrilled with the result, a strong affirmation of the decision of Justice Jagot at trial, and providing our client with certainty in relation to its significant infrastructure investment in NSW.  Private investment in critical infrastructure in Australia makes an extremely valuable contribution to the Australian economy, the community and taxpayers. Yesterday’s decision enables investors to have confidence to continue to participate in future privatisations.  The result is a product of close collaboration with NSW Ports, a high performing G+T Team and our All Star Counsel Team, including intense periods during the global pandemic.”

Welcoming yesterday’s decision, Julian Sefton, General Counsel NSW Ports said:

“We are pleased to see this case dismissed again on appeal and continue to focus on ensuring these vital infrastructure services are delivered to the people of NSW in the most efficient and sustainable way possible. I thank G+T for their extraordinary support throughout this lengthy process and all the challenges we have overcome together working on our case in the middle of a global pandemic. The quality of the technical defence, legal evidence and compelling arguments developed by the G+T team was integral to a successful outcome for our business.”

Elizabeth was supported by G+T lawyers Geoff Petersen (Partner), Sarah Lynch (Special Counsel) Sophie Player, Jacqueline Reid, Jonathon Geagea, and Adrian Vipond, with counsel team of Noel Hutley SC, Dr Ruth Higgins SC, Brendan Lim and Tim Rogan.

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