ANGLO PORTS

2018 - Current​

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Federal Court of Australia

District Registry: New South Wales

Division: General

Proceedings No: NSD 862/219

 

MAYFIELD DEVELOPMENT CORPORATION PTY LTD ACN 154 495 048

Applicant

NSW PORT OPERATIONS HOLD CO PTY LTD ACN 163 262 351 and others named in the schedule

Respondent​

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Progress of MDC’s Federal Court of Australia action​

 

On May 22nd 2024, Justice McElwaine handed down his decision on the three distinct legal questions heard before him on the 4th and 5th April 2024.​

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1. Applicability and Breach of the Competition and Consumer Act

He found in favour of MDC

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2. Derivative Crown Immunity

Justice McElwaine did not make any finding that bars MDC from contesting a decision made by the Full Bench of the Federal Court that NSW Ports were protected by derivative Crown Immunity.

 

3. Effect of the Deed of Release

He found in favour of MDC

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Further progress of MDC’S Federal Court Action

 

June 29 2024

 

MDC had lodged a Notice Of Appeal in the Federal Court of Australia against NSW Ports Operations Hold Co Pty Ltd, Port Botany Operations Pty Ltd, Port Kembla Operations Pty Ltd and the State of New South Wales appealing the decision of the Federal Court which ruled in favour of the above mentioned respondents that they enjoyed derivative crown immunity when entering into a 99 year lease for the operation of Port Botany and Port Kembla in May 2013.

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MDC is claiming damages because of alleged contraventions by NSW Ports Hold Co and Botany Operator and Kembla Operator of s45(2)(a)(ii) of the Competition and Consumer Act 2012 (CCA) as in effect on 31st May 2013 by accepting the inclusion of Port Commitment Deeds(PCD’s) in their agreement with the State, MDC alleges the Compensation Provisions in the PCD’s had the purpose or would have or likely to have the effect of substantially lessening competition between the ports of Newcastle and Botany.

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MDC’s case is also that NSW Ports Holding Co, Botany Operator and Kembla Operator each contravened s45 and s45DA(1) of the CCA because the compensation provisions hindered or prevented MDC from supplying container port services to shippers at the Port of Newcastle thereby causing substantial damage to the business of MDC.

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If not for the contraventions, MDC would have developed and operated facilities at the Mayfield site capable of handling large volumes of containers for at least 50 years.

 

Orders sought are for the matter to be remitted to the primary judge for further determination.

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March 10 2025

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MDC's Appeal to the Full Bench of the Federal Court of Australia against NSW Ports Operations Hold Co Pty Ltd and Others was heard before Justices Michael Lee, Craig Colvin and Angus Stewart on March 10th 2025 and now awaits the decision of the Full Court.

MDC is claiming alleged contraventions by NSW Ports Hold Co and Others of s45(2)(a)(ii) of the CCA 2012 as in effect on 31st May 2013. 

If not for the contraventions, MDC would have developed and operated a facility at the Mayfield site capable of handling a large volume of containers for at least 50 years.

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April 3 2025

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The March Appeal was dismissed by the Full Bench of the Federal Court.

 

MDC is considering options including an Appeal to the High Court on the issue of Derivative Crown Immunity.