30/06/2021

Gilbert + Tobin has successfully represented NSW Ports Operation Hold Co Pty Ltd, Port Botany Operations Pty Ltd and Port Kembla Operations Pty Ltd (NSW Ports) in defending Federal Court proceedings commenced by the ACCC regarding the 2013 privatisation of Port Botany and Port Kembla by the State of New South Wales.

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 Port of Newcastle.

The case raised important matters of principle in relation to the nature of competition in ports and infrastructure more generally, crown immunity as well as public policy issues surrounding a state’s ability to privatise its assets.

The Federal Court dismissed the case yesterday, with the win 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 reinforces the strategic depth and expertise of the G+T team, combining our detailed understanding of the competitive issues relevant to the privatisation deal, economics and how the law applies to the infrastructure sector.

Elizabeth Avery, G+T Competition + Regulation Group Head, who led the defence said “This is an important win for our client, vindicating its decision to invest in the State of New South Wales and providing certainty for significant investment in critical infrastructure. Today’s result was made possible by the strong collaboration and deep expertise of NSW Ports, a committed team at G+T, together with our all-star counsel team. This collaboration was critical given that a large amount of the intensive preparation for this case occurred during the challenging circumstances of lock down.”

Welcoming yesterday’s decision, Julian Sefton, General Counsel NSW Ports said “We are pleased to see this case dismissed and NSW Ports will continue to focus on ensuring these vital infrastructure assets deliver for 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 while working on our case in the middle of a global pandemic. The quality of the defence strategy, evidence preparation 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 (special counsel), Sophie Player, Sarah Lynch, Jane Kluske, Jacqueline Reid, Erin Jardine, Jonathan Geagea, Isabel Owen, Adrian Vipond, and (prior to leave of absence) Jack Coles, with counsel team of Noel Hutley SC, Dr Ruth Higgins SC, Brendan Lim and Tim Rogan.

Gilbert + Tobin’s Competition + Regulation Group is the pre-eminent competition practice in Australia. They are known for achieving outstanding commercial results, through innovative solutions and perseverance even when previous applications for transaction clearance or dispute settlement have failed. Over many years, the team is consistently ranked Band 1 for Competition/Antitrust - Australia (Chambers Asia-Pacific 2021) and Tier 1 for Competition + Trade - Australia (Legal 500 2021).

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