Port of Newcastle Operations Pty Ltd v The Australian Competition Tribunal & Ors [2018] HCATrans 55 (23 March 2018)

Last Updated: 28 March 2018

[2018] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S236 of 2017

B e t w e e n -

PORT OF NEWCASTLE OPERATIONS PTY LTD ACN 165 332 990

Applicant

and

THE AUSTRALIAN COMPETITION TRIBUNAL

First Respondent

GLENCORE COAL PTY LTD ACN 082 271 930

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Fourth Respondent

Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 MARCH 2018, AT 10.26 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR D.J. ROCHE, for the applicant. (instructed by Webb Henderson)

MR A.C. ARCHIBALD, QC: May it please the Court, I appear with my learned friend, MR N.P. DE YOUNG, for the second respondent, Glencore. (instructed by Clifford Chance)

MS R.C.A. HIGGINS, SC: May it please the Court, I appear with my learned friend, MS N.D. OREB, for the third respondent, the Commonwealth of Australia. (instructed by Ashurst Australia)

KEANE J: I note that there is a submitting appearance for the first respondent. Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, this concerns the interpretations of provisions which have been somewhat amended by legislation foreshadowed in our application.

KEANE J: That Act - the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 has been passed?

MR WALKER: Yes, in terms which - - -

KEANE J: In the terms that it appears at pages 133 and 134 of the book – it has been passed in those terms?

MR WALKER: I am sorry, your Honour. Yes, it was passed in the terms of the Bill, yes.

KEANE J: Is it fair to say that that legislation would answer the present questions in your favour – indubitably answer them in your favour?

MR WALKER: Your Honour, there is no doubt that “as a result of a declaration” is an important element.

KEANE J: And the terms and conditions.

MR WALKER: And on reasonable terms and conditions. It does not answer the point that we seek to raise, that is, these are provisions which continue to require attention to the alternative of “access (or increased access)”.

EDELMAN J: “As a result of a declaration” effectively reverses the result of the Full Court in Sydney Airport, does it not?

MR WALKER: Very largely because your Honours will recall, if I may say so, the neat way the primary holding in that case was summed up was to reject a “with” and “without” declaration comparison, yes. However, it does not. That was part of the reasoning for the conclusion in that case and then reproduced in our Full Court in relation to the meaning of “increased access”. But it was by no means the whole of it.

It is for those reasons – and one can see that from the use made in our Full Court of the concession as to the relevance of the actual state of affairs that we have drawn to attention in paragraphs 84 and 85 of the Sydney Airport Case. Now, what it means is that, though there are expedients open to us out of court, as it were, under the new law and though some of the matters that the succession of case law that we seek to correct settled has now been changed by - - -

KEANE J: So do you accept that the correction that will be made would be to come to a different view to that taken in Sydney Airport?

MR WALKER: On this point, yes. Certainly, however, it is our Full Court, the Full Court of our case that we seek to correct. But, as your Honour says, there is no doubt that the Full Court in this case said, notwithstanding what this Court had said in Pilbara about the so-called residual discretion, nonetheless the Airport Case ought to be followed relevantly.

Now, our submission is simply this, that on this point of legislative change outflanking a need for special leave is that the expression “access (or increased access)” remains and the words that follow do not in terms conclude the question whether the comparison involved in the notion of an increase of access is one which takes into account the access currently afforded because it is presently the position by those two Full Courts that as to that comparison called up by the word “increased”, you do not look to the access presently afforded and, indeed, you do little other than characterise what might be called a natural monopoly as an essential facility, satisfy some national interest matters, and bob’s your uncle, a third party is entitled to have access to that which otherwise freedom of contract would prevent, in other words, a drastic readjustment of property rights and freedom of contract.

That has been done on the basis of a reading of “increased access” which, in our submission, was wrong and unnatural in the Airport Case and that error was not, to any degree, cured in our case. It was wrong and unnatural because access obviously being a hypothetical possibility, the effect of which on upstream or downstream competition is the trigger for a declaration, “access” is obviously different in concept from “increased access”, hence the different words.

“Increased access” could naturally only mean access over and above some other state and because increased access is one of the possibilities, the hypothetical effect of which on upstream or downstream competition is the trigger for a declaration, it is clear that there is a state of affairs that calls for the initially expert and eventually ministerial determinations of those hypothetical possibilities.

EDELMAN J: But that does not come just from access or increased access, does it?

MR WALKER: No, it does not.

EDELMAN J: Because access or increased access could quite comfortably be read as access with a contractual right or restricted access be increased subject to a contractual right?

MR WALKER: Yes, twice a week being increased to four times a week, yes.

EDELMAN J: Your focus is that – is it really on the material increase in competition?

MR WALKER: No. That is where the whole matter ultimately goes, of course. This is permissible legislation because of the public interest of enhancing competition. No, our focus very much has to be – I cannot move away from this – on the expression “or increased access”, which remains unaltered and the change in legislation does not render moot the crux thrown up by the two Full Court decisions.

Our Full Court said, notwithstanding the rejection of a residual discretion by this Court in Pilbara, that the relevant ratio in airports remained, the relevant ratio being, in particular, that increased access either did not require or, as we would put it, positively prohibits a comparison between what is currently available or afforded and what might be posited by way of increase of it.

Now, the significance of that can be thrown up by the facts of this case, which make this an excellent vehicle, because against the possibility of being wrong on that threshold question of interpretation there are consistent findings below, including administratively below, to the effect that there would not be the beneficial effect on competition necessary to trigger declaration. So that there has been a declaration, notwithstanding that if the comparison was, as we urge, between that which existed before increase and then increase, there would be on the findings made no benefit to competition.

That sounds, with respect, as if access or increased access has been collapsed into one notion and it is the abstract notion of characterising the facility in question as an essential facility. Being an essential facility it naturally, necessarily, has an effect on competition in upstream or downstream markets, certainly downstream markets. Being a natural monopoly and an essential facility clinches the issue. That is not what the law says and it is for those reasons, in our submission, that we can see that the change in the law to which we have drawn attention is not something which renders this case moot.

The same issue will arise the next time someone says that increased access means access over and above that which exists. That is why the words are there. They must add something to the notion of access, which is a concept that refers to a state of affairs different from what presently exists – that is, no access.

EDELMAN J: What if the state of affairs is a state of affairs with a contractual right to access but one where the liberty is given to greater access than that which the contractual right permits? What is the measure then for increased access? Is it increased from the contractual right or increased from the factual state of affairs?

MR WALKER: To intrude requirement to contractual right is to go beyond what the statute calls for. In our submission, that provides this step in the reasoning, that one looks to whatever it is that affords access at present – this is for the increased access inquiry – and then one asks, with increased access, will there be a benefit for competition?

That is a question which obviously looks to matters of substance and impression – that is hypothetical - but that looks to questions which are anchored in reality and comparing what is currently enjoyed with what would be available if more could be enjoyed. That is what the notion of “increase” means.

So the comparison always looks to a state of affairs that the applicant for declaration claims could be improved – that is, the increase – and seeks to enlist the power of the State to compel provision of somebody else’s property on terms by reference to the public good to be gained, namely, increased benefit, enhancement of competition. That can, as I say, only be done by looking at a state of affairs which has an effect on competition – that will be the access that presently exists – and the state of affairs which would exist upon increase.

KEANE J: What do you say to the argument that access in this context is not access by a particular applicant but is access by anyone?

MR WALKER: It does not matter by how many people it is. One still looks at the question of the first word “access” – you look at “access or not”.

KEANE J: But a number of potential applicants who are not the current applicant do not have access on any view, whether it be by contract or otherwise.

MR WALKER: Your Honour is hypothesising because that was not the facts here.

KEANE J: No, sure, but as a matter of construction of the term.

MR WALKER: In such a hypothesis “increased access” will look at the state of affairs where perhaps only one person has access and “increased access” will be more berths being used by more people, for example. So increased access, particularly in the context of examining hoped for competitive enhancement, naturally accommodates what your Honour asks me to consider, namely, what about others presently with no access?

If there is access to berths in a harbour by one shipper then plainly there is access. If other shippers want access they are positing increased access. It is for those reasons that the argument one sees deployed in both Full Court decisions, and against us here, does not engage with the core notion of what “increased access” means. It has to be over and above, better than, from a market point of view, what is presently afforded. You can presently afford by a quantum or measure of access for one person, for 10 people, or for people in general. That is our answer; it makes no difference.

Now, your Honours, that completes what I want to say about should this Court be involved in something that Parliament has looked at since the decision in question? It also puts the argument that we submit derives considerable strength from what I will call an overall purposive approach. It is odd to have collapsed the expression “or increased access” in such a way that it is not meaningfully different from access to - - -

KEANE J: But so far as that expression is a part of the new Act, surely it is best construed in the context of the new provision rather than being subject to an interpretation by us of what was there before?

MR WALKER: Your Honour, I suppose - - -

KEANE J: It just looks a bit academic, Mr Walker.

MR WALKER: I will try to reduce that appearance as much as possible. We would not of course be arguing about the interpretation of the new statute. That would be academic.

KEANE J: What we say may or may not be of assistance in interpreting the new statute.

MR WALKER: It would unquestionably be, if I can put it this way, the port of first call by anybody wanting to understand what the expression “access (or increased access)” means in this or any iteration of the statute.

EDELMAN J: But one would immediately then have to ask what “as a result of declaration of the service” had done or changed in the new legislation?

MR WALKER: But, your Honour, in the new legislation that is looking, as it were, after the event. That is after the event of the hypothesised declaration. That does not cast light on the question of “access or (increased access)”. That is a logically previous step to the declaration and its subsequent enhancement or not of competition. That relation between “access or increased access” on the one hand and betterment of competition on the other hand remains the same.

True it is that clarity has been brought and a policy decision has been made, no doubt in light of judicial decisions, on what I will call the middle or pivot, but the meaning of the words “access (or increased access)” can scarcely, with respect, be urged as having radically or fundamentally changed by reason of that pivotal - they have used the same words for the same starting position. The evident policy, namely, not to expose people to compelled sharing of their property, unless there be the public outcome of enhanced competition, remains intact. So this is not a radically altered scheme.

KEANE J: Well, that may or may not be so. It may be said that the new Act reflects a slightly lesser enthusiasm for free market economics than the previous legislation may have suggested.

MR WALKER: That would involve working through the ramifications of how this might affect market behaviour, your Honour. But certainly none of that throws any light on reasons to suppose that the expression “access (or increased access)” has been altered in its meaning. There is real significance when, if I can put it this way, not disrespectfully, legislation is tinkered with, is adjusted, rather than wholesale altered then, in our submission, there is strong value of predictability and stability to be attached to words and phrases, integers or components of the previous provision that are reproduced in the new provision are likely to be construed the same way.

EDELMAN J: But that cuts both ways, though - - -

MR WALKER: It does.

EDELMAN J: - - - because when the legislation is adjusted, it is done so here against a view that has prevailed since 2007.

MR WALKER: It does cut both ways, clearly, but at the moment I am intent on advancing the notion that there is utility, notwithstanding the change of legislation – this is not a closed class, namely, of us for whom we would be seeking success on appeal – it will cast light. It is impossible to imagine that anyone would say who cares what the High Court said about access or (increased access) in our case were we to be granted special leave and win the appeal. In some future case under the new statute it would be, as I say, port of first call in understanding what that phrase means. May it please the Court.

KEANE J: Thanks, Mr Walker. Ms Higgins, should we hear you next?

MS HIGGINS: Your Honours, the Commonwealth submits that special leave should be granted for two reasons that concern that proper construction and administration of Part III of the Act. Can I first identify them? The first is that the manner in which the Full Court has construed the notion of access in section 44H(4)(a) cannot be sustained when regard has had to the text and context of that provision and is apt to produce perverse outcomes that are inconsistent with the objects of the Act and the second matter is that, considered alongside existing intermediate authority and decisions of this Court, the Full Court’s construction has produced a jurisprudence that lacks coherence.

KEANE J: So those are criticisms that are made of the Sydney Airport decision?

MS HIGGINS: Those are criticisms that are made of the Full Court below, your Honour.

KEANE J: But are they not also criticisms that could equally be made of the decision of the Full Court in 2007 in the Sydney Airport Case?

MS HIGGINS: The first criticism could equally be made, with respect, your Honour. The second criticism would not be made in the same terms because the jurisprudence in respect of other criteria within 44H has developed in the intervening period, principally through the Pilbara series of decisions. So there is now a body of jurisprudence that we see. It is discordant and we would be respectfully assisted by the intervention of this Court.

Can I turn to the first of the matters I identified? In that respect it is convenient to begin with certain propositions that are uncontroversial as between the parties to this case and on the authorities and they are these. First, access must bear its ordinary meaning in criterion (a) and, secondly, regard must be had to certain factual matters, including present factual matters in determining how to apply criterion (a).

Now, that second point emerges from paragraph 85 of the Full Federal Court’s reasons in Sydney Airports and that is extracted by the Full Court below at paragraph 73, application book 86 to 87. It is also, relevantly, your Honours, a matter accepted by Glencore in this application, in its written submissions at paragraph 26. That can be found at page 145 of the application book. Can I ask your Honours to bring that up? Your Honours will see that Glencore there submits that the Full Court’s approach below is not fact free because it accommodates facts that support conclusions of the following kind that:

(a) the Service providing access to the shipping lanes is a natural monopoly; (b) PNO exerts monopoly power –

and the other matters that your Honours see there. Those of course reflect the matters originally identified by the Full Court in Sydney Airports at paragraph 91 and repeated by this Court below in the Full Court at paragraph 89, application book 91.

So the Full Court accepted, and Glencore embraces, that these structural facts or conclusions can be accommodated. The two aspects of those kinds of facts should be noted. First, they are based on notoriously difficult legal and economic analyses. Secondly, they speak only to present conditions and not to the long future that a declaration may affect. But once one understands that certain facts are permitted and certain facts are not the question arises what is the principle by reference to which certain facts may enter into consideration while other facts are excluded?

Now, the Commonwealth submits that the exercise of construction in respect to the phrase “access (or increased access)” and the rest of criterion (a) is a three-stage inquiry. It is first necessary to give meaning to the relevant statutory text and in particular the word “access” and to identify what that comprehends. It is then necessary to analyse and ascertain whether the analysis is to be undertaken under the “access (or increased access)” limit of criterion (a) and only after that is it possible to undertake the counterfactual exercise.

It is uncontroversial that the ordinary meaning of “access” is an ability or opportunity to use the service. We submit that within the scheme of Part IIIA that meaning properly allows regard to be had to aspects of the present factual position in determining whether to conduct the inquiry by reference to the notion of “access” or, alternatively, by reference to the notion of “increased access”.

Now, in response to the various questions that your Honours put to Mr Walker in his address, it is the Commonwealth’s position that why the legislative amendments do not usurp the usefulness of this exercise is that the phrase “access (or increased access)” has not been changed. There is a question as to whether the words introduced by the recent amendment relevantly modify or augment the first stage of the inquiry as to what “access” means, the matters it comprehends and the factual matters that it maybe had regard to in determining which of the limbs of the criterion one then proceeds under.

It is our submission that the Full Court below erred in precluding from the scope of the term “access” consideration of current and likely future usage. That error can be shown by reference to two matters. The first, plainly, is the use of the notion of effect of competition in the objects clause, section 44AA(a), which is in the application book at 136.

We submit that an inquiry into effective competition is directed at the promotion of competition that is effective rather than perfect and practical rather than theoretical. There is a vital difference between demonstrable conditions of competition and the conditions which give rise to the propensity for competition. We also submit that this construction is supported by the definition of “third party”, which is a matter your Honour Justice Keane raised with Mr Walker. If I can ask the Court to turn to that - it is section 44B which is reproduced on page 157 of the application book. The third party, of course, is the putative applicant for declaration and it is:

in relation to a service, means a person who wants access to the service or wants a change to some aspect of the person’s existing access to the service.

We submit that that definition predicates four matters. The first is an existing circumstance. The second is a circumstance that attracts the use of the statutory term “access”. It is a circumstance, thirdly, that comprises various aspects and, fourthly, in respect of some aspect of which that third party seeks to change.

It is true, of course, as your Honour Justice Keane said and/or implied that the status of an applicant for a declaration as a nominal third party precludes detailed analysis of any particular person’s present factual circumstances, but that does not entail and it does not mandate that the Court abstract from the facts entirely. That central question of construction as to the meaning of “access (or increased access)” cannot be solved by elevating the significance of the counterfactual analysis. We submit that that is an error committed by the Full Court below at paragraph 87.

That question must, of course, be properly approached but success in the counterfactual will not be achieved until one has properly identified the meaning and scope of the statutory term “access”. We submit that the effect of the Full Court’s analysis is to strip the statutory term “access” in criterion (a) of much of its natural meaning and to construe it in a manner that is incongruous with its context.

KEANE J: Insofar as that might have been a problem with the interpretation of the previous legislation, if one looks at what the law is now – at pages 133 and 134 – does not the circumstance that access that is relevant for the purpose is access to the service on reasonable terms and conditions and as a result of the declaration of a service would promote a material increase - is not that problem now solved?

MS HIGGINS: It may, with respect your Honour, not be perfectly solved because there is a question - if the Commonwealth is correct in its contention that there is a three-stage inquiry there is a question as to which of those stages is appropriately informed by and augmented by the words introduced by the amendment. We say it is not perfectly clear and to the contrary that it would necessarily affect the interpretation of “access (or increased access)”.

KEANE J: The parliamentary draftsman would probably be a bit disappointed by that answer, Ms Higgins.

MS HIGGINS: I accept that, your Honour, but this is a criterion that has produced great ambiguity over the years and it is our submission, consonant with that made by Mr Walker, that the statutory amendment is not a complete answer to the difficulty that this case presents.

Completing the first point that I wanted to address your Honours on, I have submitted that “access” is stripped of much of its meaning. So, too, is the term “increased access”. There is unlikely to be any situation in which “access” would not promote competition while “increased access” would.

There is the odd consequence that places an unexamined limit on the statutory language that the Full Court acknowledges that “increased access” is likely only to comprehend an existing access regime that is not an effective access regime within Part IIIA, and your Honours see that in the Full Court’s decision below at paragraph 135 on application book 105. That is a very odd consequence of the Full Court’s reasoning and an odd statement of what the words “increased access” mean within a part of the Act that this Court has described as having large national and economic significance.

Can I turn then very briefly, your Honours, to the second contention on behalf of the Commonwealth that this decision contributes to a jurisprudence concerning Part IIIA that now lacks coherence? We have identified in our written submissions at paragraphs 24, 27 and 28, which your Honours find commencing at page 153 of the application book, various respects in which that submission is true. Can I identify briefly three of them?

First, the Full Court’s construction when extrapolated to criterion (f), which like criterion (a) uses the language of “access (or increased access)”, gives that criterion a more restricted field of operation that that ascribed to it by the Full Federal Court in the Pilbara decision. Secondly, the decision expressly yields a lower hurdle for an applicant for declaration, and that is the Full Court below at paragraph 141, for Justice Heydon of this Court considered it to be a significant one. Thirdly, the decision renders elusive this Court’s observation in the High Court in Pilbara, that criterion (a) is of a more technical kind in circumstances where now, on this construction, criterion (a) is substantially theoretical in its operation. Your Honours, unless I can be of further assistance, those are the submission of the Commonwealth.

KEANE J: Thank you, Ms Higgins. Yes, Mr Archibald.

MR ARCHIBALD: We seek to make three main points in oral address. First, the controversy in this case was not about the notion of “access”. The notion - the concept of access was the subject of agreement between the parties. Secondly, the issue that was in controversy in this case and would be the subject of controversy, were special leave to be granted, is what is the proper counterfactual to adopt for the purposes of determining whether criterion (a) is satisfied or not. On that topic, in our submission, the conclusion of the Full Court in this matter was indubitably correct.

Thirdly, the subject matter of this application, what is the proper contradictor under what I will call the old law, is no longer of significance in light of the amendment to the Act in the meantime. The amendment I think passed in October of last year and became operative on 6 November of last calendar year.

As to the first point, the court recorded correctly in its reasons in paragraph 137 at the foot of page 105 that the parties agreed as to the meaning of the word “access” - - -

EDELMAN J: Although that has to be read with 139 as well.

MR ARCHIBALD: Yes, I accept that. I will come to that in a moment. Yes. But the basal notion is not in controversy. The particular reason for mentioning that was that we understood our learned friend, Dr Higgins, to have submitted that what the Full Court did was to extract from the notion of “access” that element which entailed current usage. In our submission the court did not do that for a moment. What it did was to say that in looking at the counterfactual, one does not look to current usage in respect of the subject matter of the relevant service and the reasons for that are sound in our submission.

The controversy was the counterfactual - one sees that from paragraph 87 at page 90 of the application book and the reasoning of the court on that point is found at paragraphs 139 through 141 at pages 106 to 107 of the application book. This is the reasoning which we would observe was the reasoning of the Full Court in the Sydney Airport Case and is the reasoning of the Full Court in this matter where a specially convened Bench of five consider the matter in light of the challenge to the correctness of the conclusion of the antecedent Full Court in the Sydney Airport matter.

There was no diversity of view. So on this question there is unanimity amongst the eight members of the Federal Court who looked at the matter - nine if one chose to include the President of the Tribunal in this matter. This is not a case where there has been any diversity of view on the controversy sought to be brought before this Court. So paragraph 138 on page 106, the Full Court in this matter expressed the conclusion that:

the Full Court in Sydney Airport Full Court was correct to reject the proposition that access meant a declaration under Part IIIA. That is not the ordinary meaning of the word –

the ordinary meaning being accepted by the parties as the meaning which “access” had. In other words the “with declaration” proposition departs from the orientation of the natural and accepted meaning of “access” and then the Court observed that that reading of the notion of “access” led one back into the “with declaration” and “without declaration” dichotomy for purposes of considering the relevant counterfactual and that analysis “with declaration”/“without declaration” takes one into current usage of the service which - - -

EDELMAN J: But that does mean there must be some dispute about the words “access (or increased access)”.

MR ARCHIBALD: In that sense. I mean, my learned friend, Mr Walker, put it that the argument was for increased access. That was not our argument and it was not the ground upon which the Full Court determined the matter. The argument was that the notion of “access” had its accepted content. For purposes of the counterfactual one is looking to the future, so criterion (a) is forward looking. It is not looking to the present or the past and it looks to the conception of access that it will obtain in the downstream market.

So one is looking to the architecture of the downstream market, not at behavioural characteristics within the market and that is why one looks to the facts that the Full Court in the Sydney Airport matter considered at paragraph 85 which has been referred to and why we accepted at paragraph 26 of our submissions that there are some facts that one looks to. They are the architectural facts.

EDELMAN J: But the architectural facts must bear upon the existing facts when you are talking about “increased” because it has increased from what.

MR ARCHIBALD: But one does not need to talk about “increase” because the matter turns on “access or no access”. The role of “increased access” is not to address the situation that might obtain where there is some usage and then there is enhanced usage. The conception of “increased access” is concerned with the increment beyond a regime that otherwise ordains access.

That is what the Full Court said at paragraph 141. That is the submission we made. That is the submission accepted by the Full Court and that is in complete harmony with the Hilmer Report at page 529 which considered the circumstance in which there might be in existence a limited State-based regime whereby access was compulsory for purposes of certain facilities.

That regime may be seen to be deficient by reference to the criteria of the new federal regime that was being looked at by the Hilmer Report and therefore declaration under the federal regime would yield increased access in the terminology of the Hilmer Report and that being adopted in the legislation. So “increased access” does not entail enhanced usage pursuant to behavioural characteristics adopted by the service provider.

In paragraph 139 at page 106, the Full Court continued with the analysis and identified the difficulty with the construction - this is at lines 32, 33:

The difficulty with the construction advanced by PNO and the Commonwealth is to state what those two circumstances are –

what comparators are to be adopted:

and to avoid re-entering the territory of a future with a declaration and a future without a declaration.

So it leads back into the rejected concept and then at 140 two further matters support the view adopted:

First, the access . . . is not access by a particular person, but rather is access by any third party.

So looking at the current state of affairs will not capture the full dimension of the notion of “access” and “third party” is not, with respect, what Dr Higgins indicated it is. It is not the section 44B notion. Section 44B is not speaking of the person who may apply for a declaration. The application section under Part IIIA allows that any person may seek declaration, any person or the Minister.

The Minister does not seek access and there may be an applicant for declaration being by a person who never seeks himself, herself or itself to actually use the service but nevertheless applies for and makes a sufficient case. So that is not the notion there. Secondly, at line 48, the court referred to extrinsic material, that is basically Hilmer and the Competition Principles Agreement - that supported the case - and 141 the point about increased access that we have already made. So in our submission the reasoning is sound, not attended with any doubt, certainly no sufficient doubt to warrant the grant of special leave.

That takes us to the third point which is to observe that the legislation that has subsequently been enacted does render moot the issue raised in this matter. It renders it moot because there is explicit introduction of a “with declaration” integer into the criterion. Once one has the “with declaration” integer the counterfactual must inexorably be “without declaration” so one is taken back to the view adopted by the Tribunal in the Sydney Airport Case and therefore there is an effective reversal of the Sydney Airport decision and an effective reversal of the law upon which the decision in this case was based so one has that observation.

The second point to make is the new criterion also expressly introduces - I am sorry, the new section as to paragraph (a) introduces into the criterion reasonable terms, an element absent from the pre-existing Part IIIA criterion and so one has that further feature. If one is looking, for example, at current usage, it may be this current usage but on terms it would regarded as unreasonable. So, one has a different regime being introduced again by these provisions.

Whether these provisions have any impact upon the notion of “access (or increased access)”, one might at the outset doubt but it may be, and it is not beyond the realms of possibility, that the way one understands the concept of “access (or increased access)” which is retained in the new provision, is influenced in some way by the other provisions and perhaps in particular the “with reasonable terms” element.

Therefore, although the verbiage of “access (or increased access)” is retained in the new section, even that may be impacted but if there were to be any expression of the understanding of that phrase by this Court, it would in our submission be most appropriate that it occur within the framework of a consideration of the new regime rather than the vestiges of the old regime.

The next matter to notice is that on our understanding this case is the only case under Part IIIA that was undetermined as at the moment of the change in the legislation. I say undetermined because of the dependency of this application so there are no other cases in our understanding that are affected by the old Part IIIA regime. This case alone would be affected by it and in our submission the Full Court correctly determined the matter.

Our friends have referred to the gas law in their submissions as being a regulatory regime which contains the expression “access (or increased access)” in the criterion - the first criterion for declaration there, that is true, but the gas law is the subject of current review. There was a report by the Commission in February - where that will end up one does not know.

My understanding is that there was not contained in that report any suggestion that criterion (a) itself should be changed but there was a general discussion about whether, in light of the amendments to Part IIIA, the gas law should generally follow suit. So the gas law may be in an unstable position and one cannot confidently say (a) that any decision of this Court on Part IIIA would be a safeguard for gas law in any event. It is a different regime. It deals with coloured pipelines so it is a single industry concept and different factors may affect whether or not one has regard to a particular type of counterfactual or the matters one takes into account in relation to it.

Secondly even a decision on the gas law should – sorry, if this Court is to give guidance for gas law purposes, it should plainly be within the confines of a decision concerned with gas law not Part IIIA. So for all of those reasons in our submission, special leave in this matter should be refused.

KEANE J: Mr Walker, anything in reply.

MR WALKER: Simply this, the notion that the recent amendment brings back the formerly heretical “without declaration”/“with declaration” comparison is no answer to the need to examine the prior question of what is the increase in access which is supposed to produce in that “with” or “without” declaration hypothesis and enhancement of competition. They are not the same. They are at different ends of the reasoning required by the threshold provision.

In our submission, for much the same reasons as one can see and the Full Court from which we seek special leave, dismissing our argument that the 2006 amendments might cast a different light on “access (or increased access)”, one can confidently expect that the same will be true in the future here. There is nothing textual, nothing purposive to indicate that the concept of “access (or increased access)” has been altered by the settling, in a way different from the jurisprudence of the later notion called up for by the formula of “with” declaration or “without” declaration.

It is for those reasons in our submission that the matter remains not simply one that affects a very drastic outcome for us individually, but also is of significance more generally.

KEANE J: Ms Higgins, anything in reply.

MS HIGGINS: No, your Honour.

KEANE J: In our view the proposed appeal would not be a suitable vehicle for the agitation of a question of sufficient general importance to warrant the grant of special leave to appeal. The application is refused with costs.

AT 11.16 AM THE MATTER WAS CONCLUDED