THE High Court of Australia is to review an earlier Federal Court finding that the three port operators in New South Wales enjoy derivative immunity from antitrust laws.
This is considered a win for proponents of a Newcastle container terminal, Mayfield Development, who filed the lawsuit.
A hearing date is still to be announced.
The argument that NSW Ports, Port Botany Operations and Port Kembla Operations enjoyed derivative immunity is based upon links with the state government.
Mayfield’s appeal request was filed in early May and is connected with the 2012 decision by the NSW government to develop Port Botany as the state’s main box port and that the existing ports would be privatised.
Port asset bidders argued they should be offered a cheaper price if the government planned to allow the construction of a container terminal at Newcastle.
The government moved to alleviate any concerns via a guarantee requiring the state to pay compensation if Port Botany or Port Kembla were at less than capacity for the import and export of containers and if container volumes were diverted to Newcastle.
Mayfield argued this contract was anticompetitive, however, it delayed its own lawsuit while the Federal Court dealt with a case brought by the ACCC, the regulator’s lawsuit being dismissed in 2023.
Mayfield lodged its High Court application following an April 2025 ruling by the appeals panel of the Federal Court of Australia that the three port were entitled to “derivative Crown immunity”.
The case is expected to have significant implications for both competition law and the development of port policy in Australia.
Daily Cargo News has sought comment from competition law experts.