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THE Federal Court has released its reasons behind the judgement in dismissing the ACCC case against NSW Ports.

In her decision, Justice Jagot wrote: “If a container terminal at Port Kembla is currently a mere ‘vision’, then a container terminal at the Port of Newcastle while Port Botany has capacity (or before a container terminal is developed at Port Kembla) is a mere mirage.”

NSW Ports welcomed the publication of the reasons for judgment of the Federal Court of Australia dismissing all the claims brought against it by the ACCC.

NSW Ports chief executive Marika Calfas said the outcome was “an emphatic win for the state of NSW and NSW Ports. NSW Ports will continue to focus on ensuring the key trade gateways of Port Botany and Port Kembla deliver efficiently and sustainably for the people and businesses of NSW.” 

In a statement, NSW Ports said the judgment supports the principle of NSW’s container port strategy, that container terminal development should be conducted in sequence, with existing capacity at Port Botany utilised first, followed by Port Kembla and only then Port of Newcastle.

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“This strategy delivers the most effective use of significant public infrastructure investment in support of the overall cost and efficiency of the NSW freight task,” the NSW Ports statement said.

Ms Calfas said since privatisation in 2013, $2.2 billion has been invested by NSW Ports and other private sector operators to grow port capacity and improve productivity. 

“Premature development of another container terminal in NSW whilst Port Botany still has capacity would increase the overall cost of moving freight in NSW, to the detriment of the State’s economy,” Ms Calfas said.

Justice Jagot found that in the seven years since privatisation, Port of Newcastle has not formulated an investment grade business case suitable of being put to its own board and shareholders for the development of a container terminal, even without the provisions of the Port Commitment Deeds in place.

Justice Jagot wrote: “PON had and has mere speculative hopes that it might be able to: (a) satisfy its board, its shareholders and the NSW government that a container terminal at the Port of Newcastle while Port Botany has capacity might be viable, and/or (b) persuade the NSW government to change the State policy which has been in place since July 2012, which is to the effect that no new container terminal should be developed in NSW until Port Botany has reached capacity and, when that occurs, the next container terminal should be developed at Port Kembla, not the Port of Newcastle. These mere speculative hopes were and remain far-fetched and fanciful on the evidence, and were and are not a real chance or real possibility. As such, there was and is not any credible threat of entry by PON into the pleaded market for Container Port Services in New South Wales (NSW).”

The entirety of the redacted decision can be read on the Federal Court’s website.

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