A SUBMISSION by Mayfield Development Corporation to lift a “stay of proceedings” in a case against New South Wales Ports has been rejected by the Federal Court.

As previously reported in Daily Cargo News, Mayfield, half-owned by Maersk subsidiary APM Terminals, sought to lift the stay in relation to its case against NSW Ports and the decision not to build a container terminal on the former BHP steelworks site.

The Australian Competition and Consumer Commission is also taking Federal Court action over the privatisation deals which contain what it submits are “anti-competitive and illegal” financial penalties on anyone operating a rival box terminal in Newcastle.

Mayfield consented to the stay in August last year until the ACCC case was dealt with.


But earlier this year its position changed, submitting its consent to the earlier stay was not about concerns over the prejudice of concurrent proceedings, rather circumstances had changed and MDC now had the money to provide security for costs.

Lawyers for NSW Ports submitted that MDC had never said it consented to the stay in August 2019 because it did not then have litigation funding.

“To the contrary, the agreed note to the orders records that the parties had agreed to the stay of the MDC proceeding on the basis that the ACCC proceeding involved several issues for determination that are threshold issues with respect to the MDC proceeding, with significant overlap in factual allegations,” NSW Ports argued.

In her ruling, Justice Jayne Jagot said timing was crucial and that lifting the stay would be “contrary to the interests of justice”.

“Had MDC been able to fund the litigation which it commenced and opposed the stay on the grounds that it now advances back in August 2019, then there would have been much to be said in favour of the position that the two proceedings [Mayfield and ACCC] should be heard together,” Justice Jagot said.

“At that time, there would have been ample scope to fashion a timetable which could have resulted in a concurrent hearing of the matters in an orderly and timely manner. As it was, MDC did not have litigation funding in place and thus took the view (not disclosed at the time) that as a result, a stay was inevitable,” she said.

“It thereby consented to the stay.” Mayfield was ordered to pay NSW Ports’ costs.