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[2026] NSWCA 64
respondent. Appeal dismissed with costs. No ground of appeal was made out ([180]–[185]).
The Court held that Glencore could not use the lower, Tribunal-determined wharfage rate while avoiding the accompanying navigation service charge under this determination. The scope clause applied to circumstances in which Glencore chartered a vessel or made the specified statutory representation, which also made it liable for the navigation charge. The Court interpreted the determination from the viewpoint of a reasonable third-party access seeker using public material, rather than reconstructing private submissions and procedural history. The appeal was dismissed with costs.
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10 cited instruments linked from this judgment.
2,160 words · generated 08/10/2026
The case concerned how to read an access determination made under Part IIIA of the Competition and Consumer Act 2010 (Cth) (CCA) for the declared shipping channel service at the Port of Newcastle.
Glencore exported coal through the port, commonly under free on board (FOB) sales. In the circumstances described by the Court, the NSW Ports and Maritime Administration Act 1995 (PMA Act) made the cargo owner liable for the wharfage charge, while the navigation service charge was payable by the vessel’s “owner”. For FOB shipments, that was typically the buyer as charterer, not Glencore ([8]–[10], [23]–[24]).
The access dispute began in 2016 and was initially about the navigation service charge. It later included the wharfage charge, although the parties agreed on the wharfage charge for the arbitration. After ACCC and Tribunal proceedings, and appeals to the Full Court of the Federal Court and the High Court, the Tribunal made the final determination in 2022 ([25]–[30], [35]–[44]).
The determination set both charges. Clause 2.1 specified when its terms applied: where Glencore chartered a vessel, directly or through an agent, or made a representation of the kind described in s 48(4)(b) of the PMA Act about the vessel. Clause 5.1 set the wharfage charge, while cl 6.1 set the navigation service charge. Clause 3.1 required advance notice of an intention to use the service under the determination ([38]–[45]).
In December 2024, Glencore notified PNO that it intended, from 1 January 2025, to use the determined wharfage charge for relevant coal shipments. It expressly said it was not notifying PNO that it intended to use the service for the navigation service charge under the determination ([33]). This mattered commercially: the judgment records that the non-determined wharfage rate had increased substantially, and that the determined rate as at 1 January 2025 was lower ([34]).
The primary judge held that Glencore could not have the benefit of the determined wharfage charge without also being liable for the determined navigation service charge. The Court of Appeal agreed. McHugh JA gave the principal reasons, with Mitchelmore JA and Stern JA agreeing. The appeal was dismissed with costs ([1]–[5], [180]–[185]).
The Court began with the determination’s text. It accepted that cl 2.1 was central and rejected Glencore’s argument that the word “includes” meant the listed circumstances were non-exhaustive. In the setting of a clause headed “Scope”, a cautious and ordinary reading was that cl 2.1 identified the circumstances in which the determination applied. No other provision set out additional conditions for its application ([51]–[54]).
The rest of the document reinforced that reading. The background described the determination as applying to access to “the Service”, rather than only a separable part of it ([55]). Both conditions in cl 2.1 connected the vessel’s entry to the port and loading of Glencore coal. On the Court’s analysis, those circumstances linked Glencore’s liability for the navigation service charge with its liability for wharfage ([56]).
The Court also considered the provisions dealing with charges together. Clause 2.2(c) excluded charges other than “the Navigation Service Charge and the Wharfage Charge”; cl 1.2 said both charges applied from the backdating date; and cl 3.2 required information about vessels within cl 2.1 for the purpose of backdating. The cargo manifests identified in cl 3.2 were relevant to calculating wharfage, as well as to other aspects of the determination. The Court therefore considered that the mechanism for backdating wharfage was connected to vessels falling within cl 2.1 ([57]–[62]).
Glencore relied on separate invoicing under cl 10 as evidence that the charges were independent. The Court was not persuaded. Separate invoices were explicable because the events permitting invoicing differed: receipt of a cargo manifest for wharfage, and the vessel’s arrival for the navigation service charge. The fact that invoices were separate did not establish that the charges could be accessed independently ([63]–[64]).
The Tribunal’s 2022 reasons also supported the Court’s interpretation. Those reasons discussed the scope of the determination and the High Court’s remitter. The Court read the relevant discussion as dealing with when Glencore itself would be liable for the navigation service charge, rather than creating a separate entitlement to use the wharfage rate without that charge ([65]–[79]).
A second, broader question was how much of the history of the dispute could be used as context. The Court recognised the general importance of context in interpreting language. But it said that the permissible context depends on the nature and purpose of the legal text. A s 44V determination has a public competition function and may matter to access seekers who were not parties to the arbitration. The Court therefore adopted the perspective of a reasonable third-party access seeker at the time of the determination ([86]–[102]).
From that perspective, the published determination and accompanying reasons are available, as is material expressly incorporated by reference and other information reasonably available to that access seeker. Submissions made in earlier proceedings, or assumptions that might be inferred from them, are different if they were not reflected in the public determination or reasons. The Court considered that such participant-specific material could not be used in the way Glencore proposed ([103]–[113], [143]).
Finally, the pricing methodology offered some additional support. The wharfage charge was fixed and indexed to CPI, while the navigation service charge was reviewed through a more detailed building block model. The Court reasoned that this arrangement was more readily understood as part of a combined revenue framework if Glencore was liable for both charges. It expressly cautioned that the weight of this implication should not be overstated ([165]–[179]).
The judgment does not describe a wholesale change to the law of contractual or statutory interpretation. It draws on familiar contextual principles, including the observation that language is inherently contextual and the modern approach to statutory interpretation ([86]). Its contribution is to explain how those principles apply to a particular kind of public instrument: an access determination under s 44V of the CCA.
Before this decision, the parties disagreed about whether such a determination should be approached chiefly as a bilateral arbitral outcome, potentially permitting broader use of submissions known to the parties and the decision-maker, or more like a public instrument whose meaning should be ascertainable by people outside the proceedings ([84], [89]–[91]).
The Court’s answer was not simply “text only”. It held that the text is read as a whole, together with accompanying reasons and appropriate, readily available context. It also left room for other information readily available to an access seeker, such as information about the physical characteristics of the relevant infrastructure ([102], [110]).
The practical clarification is that a s 44V determination should have a single objective meaning, not one that changes according to whether a reader knows the details of past submissions or procedural events. The Court did not hold that all related court judgments are necessarily excluded from context. It expressly left that broader question open, while holding that Glencore’s particular use of the material was inconsistent with the statutory scheme ([106], [111]).
On the substantive construction question, the decision confirms that where a determination’s scope clause refers to “the determination” and provides specific conditions, the instrument must be considered as a whole before treating an individual charge as independently available. Here, the text and reasons did not support separate access to the determined wharfage charge. The Court’s conclusion is tied to this determination’s wording and structure, rather than stated as a universal rule that two charges can never be separated.
At [80], McHugh JA described the task as identifying “what the Tribunal decided, as expressed in the language the Tribunal used”. In plain English, the question was not what a party may have hoped the Tribunal would decide, or what earlier participants thought it might mean. It was what the final document communicates.
At [102], the Court said that the determination should be read from the position of a reasonable third-party access seeker at the time it was made. This makes the inquiry objective. A reader does not need to have participated in the arbitration or know the parties’ private litigation history to understand the determination.
At [106], the Court explained that a s 44V determination “can have only one meaning”. In plain English, one reader’s access to unpublished submissions should not produce a different legal meaning from another reader’s access to the published determination and reasons.
At [113], the Court characterised Glencore’s argument as a “minute analysis” of submissions and reasons from earlier proceedings. It held that this method was unavailable for construing the determination from the perspective of a third-party access seeker. The point was not that procedural history is never relevant, but that the particular inferential reconstruction relied on by Glencore was not appropriate.
At [164], the Court added an alternative conclusion: even if the broader material could be considered, it would not change the result. This is significant because the appeal failed both on the Court’s stated limits on context and on the Court’s assessment of what the history would establish.
At [179], the Court said the pricing relationship “tends to support” the primary judge’s construction, while warning against overstating its significance. In plain English, the economic structure was consistent with the Court’s reading, but the decision rested principally on the text and reasons, not on an economic inference alone.
The decision is most directly relevant where a party seeks to construe a s 44V determination governing access to a declared service, especially where the determination is publicly available and may affect access seekers beyond the original parties. It is particularly relevant when a party relies on prior submissions, hearing exchanges, or inferences from earlier judgments that are not set out in the determination or accompanying reasons ([101]–[111], [143]).
It also matters where an instrument has a scope clause listing circumstances in which it applies, and the dispute is whether a particular benefit or charge can be separated from the rest of the determination. The Court read cl 2.1 in the context of the entire document, including the background, the backdating provisions, invoicing and related charges ([51]–[64]).
For port operators and users, the specific facts involved a cargo owner liable for wharfage but not ordinarily liable for the navigation service charge under the PMA Act. The dispute arose when Glencore sought to use the determined wharfage rate without accepting the corresponding navigation charge under the determination ([23]–[24], [31]–[34]).
The decision should not be read as resolving every question about other access determinations or every situation involving separately charged components. Its stated construction depended on this determination’s words, structure, reasons and statutory context.
The judgment is dated 20 April 2026. The material provided contains no later decisions applying, distinguishing or otherwise treating this Court of Appeal decision. It is therefore not possible, on the supplied source, to describe subsequent judicial treatment.
The judgment itself discusses earlier authorities. It cites general contextual-interpretation decisions, including Mainteck Services Pty Ltd v Stein Heurtey SA and CIC Insurance Limited v Bankstown Football Club Limited ([86]). It discusses Westfield Management Ltd v Perpetual Trustee Company Ltd by analogy, noting that public accessibility and third-party reliance can affect what contextual material is appropriate, while also explaining that the statutory purpose of a s 44V determination differs from the Torrens register setting ([104]–[109]).
It also discusses Theunissen v Barter as an earlier NSW Court of Appeal decision concerning the permissible context for construing a registered easement. The Court referred to it to illustrate that the Westfield principle does not necessarily confine interpretation to the face of a registered instrument ([109]). Those authorities pre-date this judgment and are part of its reasoning, not later treatment of it.
The Court expressly left open whether, in general, reasons for judgment in related litigation form part of the interpretive context for a s 44V determination. It decided only that Glencore’s particular attempt to infer meaning from submissions and prior decisions, where the relevant material was not incorporated into the determination or reasons, was inconsistent with the statutory scheme ([111], [143]).
The Court also indicated that other information readily available to a third-party access seeker might affect interpretation, giving the physical characteristics of the relevant infrastructure as an example. The precise range of such material was not exhaustively defined ([110]).
The judgment does not decide how a differently worded determination, expressly separating charges or expressly identifying distinct circumstances for each charge, would be construed. Nor does it decide whether a separate dispute about wharfage could be arbitrated independently in a different procedural setting. It decided the meaning and operation of this 2022 determination, in the circumstances argued on this appeal ([115]–[117], [160]–[164]).
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Glencore Coal Assets Australia Pty Ltd v Port of Newcastle Operations Pty Ltd [2026] NSWCA 64
Hearing dates: 20 November 2025
Date of orders: 20 April 2026
Decision date: 20 April 2026
Before: Mitchelmore JA at [1];
Stern JA at [2];
McHugh JA at [3]
Decision: The appeal is dismissed with costs.
Catchwords: COMMERCE — Competition and Consumer Act 2010 (Cth), Pt IIIA — Declared service —Construction of access determination — Nature and extent of extrinsic material to be taken into account — Whether appellant able to take advantage of determined wharfage charge without being liable to pay determined navigation service charge
Legislation Cited: Competition and Consumer Act 2010 (Cth), ss 2, 44AA, 44B, 44H, 44K, 44S, 44V, 44X, 44ZNB, 44ZP, 44ZR, 44ZZCA, 44ZZL
Ports and Maritime Administration Act 1995 (NSW), ss 3, 47, 48, 50, 51, 61, 62, 67, Pt 5,
Ports and Maritime Administration Regulation 2012 (NSW), reg 17
Ports and Maritime Administration Regulation 2021 (NSW), reg 12
Cases Cited: Application by Glencore Coal Pty Ltd (No 2) [2016] ACompT 7; (2016) 309 FLR 358
Application by Port of Newcastle Operations Pty Ltd (No 2) [2020] ACompT 3
Application by Port of Newcastle Operations Pty Ltd (No 3) [2022] ACompT 2
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; [1997] HCA 2
Deguisa v Lynn (2020) 268 CLR 638; [2020] HCA 39
Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal (2020) 280 FCR 194; [2020] FCAFC 145
Glencore Coal Assets Australia Pty Ltd v Port of Newcastle Operations Pty Ltd (No 2) [2025] NSWSC 769
Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184
Port of Newcastle Operations Pty Limited v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565; [2021] HCA 39
Theunissen v Barter (2025) 117 NSWLR 49; [2025] NSWCA 50
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45
Category: Principal judgment
Parties: Glencore Coal Assets Australia Pty Ltd ACN 163 821 298 (Appellant)
Port of Newcastle Operations, Pty Ltd ACN 165 332 990 (Respondent)
Representation: Counsel:
M Izzo SC; J Kennedy (Appellant)
B W Walker SC; D Roche SC; A D’Arville (Respondent)
Solicitors:
Quay Law Partners (Appellant)
Clayton Utz (Respondent)
File Number(s): 2025/332019
Publication restriction: Nil.
[This headnote is not to be read as part of the judgment]
The respondent operates a port in Newcastle that was a declared service under s 44K(8) of the Competition and Consumer Act 2010 (Cth) (CCA) (the Service). The appellant exports coal through the port, typically by way of free on board (FOB) sales. By reason of the Ports and Maritime Administration Act 1995 (NSW) (PMA Act), the appellant was thereby liable to pay a wharfage charge (in respect of a site at which stevedoring operations may be carried out) but was not liable to pay a navigation service charge (in respect of the general use by a vessel of a designated port and its infrastructure). Instead, the navigation service charge was charged to the “owner” (as that term is defined in the PMA Act) of the vessel carrying the coal.
In 2016, the appellant notified the ACCC of an access dispute pursuant to Pt IIIA of the CCA. It sought an arbitrated determination of the navigation service charge payable by the charterers of vessels carrying its coal. The ACCC made a final determination of the access dispute in 2018. In 2019, the Australian Competition Tribunal varied the ACCC’s determination. The appellant then sought review of the Tribunal’s decision in the Full Court of the Federal Court, which set the Tribunal’s decision aside. The respondent appealed that decision to the High Court, which remitted the matter to the Tribunal. The Tribunal made its final determination in 2022, fixing both initial wharfage and navigation service charges, and mechanisms to adjust them.
The dispute before the Supreme Court of New South Wales arose from a written notice given by the appellant to the respondent in December 2024. By that notice, the appellant stated that it intended to use the Service the subject of the wharfage charge under the terms of the determination. The primary judge held that, on the proper construction of the determination, the appellant is not entitled to access the determined wharfage charge without also being liable for the determined navigation service charge.
On appeal, the appellant submitted that the history of the parties’ dispute was important context in construing the determination. It further submitted that the text of the determination, read in light of this history, supports a construction of the determination that allows the appellant to access the determined wharfage charge without also being liable for the determined navigation service charge.
The Court (McHugh JA, Mitchelmore JA and Stern JA agreeing) held, dismissing the appeal:
(1) A determination made pursuant to s 44V of the CCA should be construed from the perspective of a reasonable person in the shoes of a third party access seeker, as at the time of the determination. A reasonable person in that position will be taken to have regard to the published text of the determination, any accompanying reasons and any readily available material incorporated by reference. Contextual matters known only to those directly involved in an ACCC arbitration or a Tribunal proceeding are not available for use in interpreting a determination: [80]-[111], [163].
Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45, discussed.
Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184; Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13; CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; [1997] HCA 2; Deguisa v Lynn (2020) 268 CLR 638; [2020] HCA 39; Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal (2020) 280 FCR 194; [2020] FCAFC 145; Theunissen v Barter (2025) 117 NSWLR 49; [2025] NSWCA 50, cited.
(2) The text of the determination and the Tribunal’s reasons support a construction of the determination by which the appellant may not have the benefit of the determined wharfage charge without also being liable to pay the determined navigation service charge: [51]-[79], [165]-[179].
(3) The process of reasoning adopted by the appellant, involving a minute analysis of the submissions made to various courts and tribunals in the litigation preceding the final determination and an attempt to draw inferences from their reasons for decision when viewed in light of those submissions, is unavailable for the purpose of construing the determination: [111]-[113], [143], [163].
(4) Even if that process of reasoning were available for use in construing the determination, it would not establish that the determination permits the appellant to have the benefit of the determined wharfage charge without also being liable to pay the determined navigation service charge: [114]-[117], [164].
MITCHELMORE JA: I agree with McHugh JA.
STERN JA: I agree with McHugh JA.
McHUGH JA: The respondent, Port of Newcastle Operations Pty Ltd (PNO), operates a port in Newcastle (the port). The port was a declared service under s 44K(8) of the Competition and Consumer Act 2010 (Cth) (CCA). The central question before the Court concerns the interpretation of an access determination with respect to that service issued under s 44V of the CCA by the Australian Competition and Consumer Commission (ACCC) on 8 September 2018, as varied by the Australian Competition Tribunal (the Tribunal) on 5 April 2022 (the Determination). On the proper construction of the Determination, can the appellant, Glencore Coal Assets Australia Pty Ltd (Glencore), separately take advantage of the determined wharfage charge when selling its coal through the port, without also being liable to pay the determined navigation service charge?
The primary judge, Peden J, found that Glencore is not entitled to access the determined wharfage charge without also being liable for the determined navigation service charge: Glencore Coal Assets Australia Pty Ltd v Port of Newcastle Operations Pty Ltd (No 2) [2025] NSWSC 769 at [47]. Her Honour was correct so to conclude. The appeal should be dismissed.
The appeal also raises a question about the scope of the contextual material that may be taken into account when construing a s 44V determination. Glencore contends for a broad approach; PNO contends for a narrow one. The answer, driven by the purpose of a s 44V determination, lies somewhere in between. But even on Glencore’s broad approach to contextual material, the disposition of the appeal would be the same.
Together with other companies within the same corporate group, Glencore owns, manages, or has a joint venture interest in, coal mines throughout the Hunter Valley in New South Wales. It sells coal to customers for export through the port. Glencore sends the coal by rail to the port and loads it onto a vessel organised by the buyer that usually berths at a terminal at the port.
The port was privatised in May 2014 via a 98 year lease to PNO.
PNO is the “port operator” within the meaning of s 3 of the Ports and Maritime Administration Act 1995 (NSW) (PMA A****ct). PNO has powers and authority to fix and collect various charges pursuant to Pt 5 of the PMA Act. For the purposes of that Part, PNO is the “relevant port authority”: s 47. Relevantly for this appeal, it can fix and collect the following charges.
Pursuant to s 51, a “navigation service charge” “in respect of the general use by a vessel of a designated port and its infrastructure, apart from” various matters (including “the use of land-based port facilities”): s 50. This is charged to the “owner” of a vessel by reference to the gross tonnage of the vessel.
Pursuant to s 62, a “wharfage charge” “in respect of availability of a site at which stevedoring operations may be carried out”: s 61. This is charged to the person who is the “owner” of the cargo immediately before it is loaded onto a vessel by reference to the quantity of cargo loaded or unloaded at the site.
“Owner” is defined in s 48 of the PMA Act as follows.
48 Meaning of “owner” of vessel or cargo
(1) In this Act, owner of a vessel or cargo means (subject to this section) the person who owns the vessel or cargo.
(2) A reference in this Act to the owner of a vessel includes a reference to—
(a) a person registered as the vessel’s owner in the relevant authority under the marine legislation or the National law or other certificate of registry for the vessel, or
(b) a person who has chartered the vessel.
(3) A reference in this Act to the owner of a vessel or cargo includes a reference to a joint owner of the vessel or cargo.
(4) A reference in this Act to the owner of a vessel or cargo includes a reference to any person who, whether on the person’s own behalf or on behalf of another—
(a) exercises any of the functions of the owner of the vessel or cargo, or
(b) represents to the relevant port authority that the person has those functions or accepts the obligation to exercise those functions.
(5) For the purposes of this Act, a person does not cease to be an owner of a vessel because the vessel is mortgaged, chartered, leased or hired to another person.
67 Agreements in respect of charges
(1) The relevant port authority may enter into an agreement with a person liable to pay any kind of charge under this Part.
(2) Such an agreement may make provision for or with respect to—
(a) fixing the amount of any charge payable by the person to the relevant port authority, and
(b) any other matter which the relevant port authority is permitted by or under this Part to determine in respect of the charge, and
(c) any right or privilege which by or under this Part accrues to the person liable to pay the charge, or which the relevant port authority may confer on the person.
(3) To the extent that provision is so made, the agreement displaces any determinations of the relevant port authority in relation to the charge or to the matter, right or privilege concerned.
Section 44V is within Pt IIIA of the CCA. The scheme of Pt IIIA was the subject of detailed exposition by the High Court in Port of Newcastle Operations Pty Limited v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565; [2021] HCA 39 (Glencore HC). That was one in the series of decisions which led to the Determination as varied by the Tribunal in 2022.
What the Court described at [12] as the “principal object” of Pt IIIA is set out in s 44AA(a): to “promote the economically efficient operation of, use of and investment in the infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets”. It will be necessary to say more about that object below.
As the Court explained at [14]-[16], Pt IIIA is concerned with the problem of “essential facilities” — typically infrastructure such as “electricity transmission grids, telecommunication networks, rail tracks, major pipelines, ports and airports” — which have natural monopoly characteristics. Where access to such a facility is “needed to compete effectively in an upstream or downstream market”, the facility is often referred to as a “bottleneck facility”: at [16].
It is unnecessary to repeat the detail of what the Court said at [10]-[37] about the solution which Pt IIIA provides to this problem. Relevantly for present purposes, the regime may be summarised as follows.
The first stage of the process is the declaration of a “service” provided by means of a facility: Div 2, Pt IIIA.
Division 3 then provides for “Access to declared services”. Section 44S(1) provides that where a third party and a provider of a declared service are unable to agree on one or more aspects of access to the service, either the provider or the third party “may notify the [ACCC] in writing that an access dispute exists”. “Third party” is defined in s 44B to mean, “in relation to a service, … a person who wants access to the service or wants a change to some aspect of the person’s existing access to the service”.
Notification has the effect of commencing an arbitration before the ACCC. The ACCC is obliged to make a written final determination on access by the third party to the service: s 44V(1)(a). By s 44X(1), the ACCC must take certain matters into account. Relevantly for present purposes, these include “the public interest, including the public interest in having competition in markets”, “the economically efficient operation of the facility” and the pricing principles in s 44ZZCA.
The final determination made by the ACCC is subject to review by the Tribunal at the request of any party to the arbitration: s 44ZP(1). The Tribunal may affirm or vary the final determination: s 44ZP(6).
An “appeal” (the nature of which was explained by the High Court at [36]) lies on a question of law to the Federal Court from a decision of the Tribunal: s 44ZR(1).
Although Glencore’s contextual argument on the appeal will require close consideration of aspects of the procedural history, it is convenient for present purposes to note the following by way of overview of the dispute.
In circumstances explained in more detail below, in 2016 the Tribunal declared the Service in the following terms:
“[T]he provision of the right to access and use the shipping channels (including berths next to wharves as part of the channels) at the Port of Newcastle (Port), by virtue of which vessels may enter a Port precinct and load and unload at relevant terminals located within the Port precinct and then depart the Port precinct.”
The Glencore companies typically sell coal by way of free on board (FOB) sales. The Glencore companies send the coal by rail to the port where it is loaded onto a vessel organised by the buyer for export. It is uncontroversial that in those circumstances, by reason of the operation of the PMA Act, the relevant Glencore company:
is liable under s 61 of the PMA Act to pay the “wharfage charge” “in respect of availability of a site at which stevedoring operations may be carried out”; but
is not liable under s 50 of the PMA Act to pay the “navigation service charge”. Instead, the navigation service charge is charged to the “owner” of the vessel carrying the coal sold by the Glencore company. By reason of the definition of “owner” in s 48 of the PMA Act, that is typically the buyer of the coal as the charterer of the vessel.
However, Glencore wished to seek arbitration pursuant to Pt IIIA of the CCA not only with respect to the wharfage charge, but also with respect to the navigation service charge. In particular, Glencore wanted an arbitrated determination of the navigation service charge payable by the charterers of vessels carrying Glencore coal (i.e., the coal buyers), when Glencore sold FOB. In the dispute which ensued, the focus of the parties’ disagreement was the navigation service charge: whether Glencore was entitled to seek arbitration of the navigation service charge payable by persons other than Glencore; in what circumstances the navigation service charge would be payable by Glencore itself; and the amount of the navigation service charge to be payable by Glencore under the determination.
Glencore notified the ACCC of an access dispute in 2016. Initially, the dispute concerned only the navigation service charge. It was then expanded to include the wharfage charge. However, Glencore and PNO agreed, apparently no later than 7 May 2018, the wharfage charge for the purposes of the arbitration. By contrast, aspects of the navigation service charge remained hotly contested throughout the dispute.
The ACCC made a final determination of the access dispute in 2018. Clause 5.1 of that determination set the “Wharfage Charge payable by Glencore to PNO in accordance with this determination”. Clause 6.1 set the “Navigation Service Charge payable by Glencore to PNO in accordance with this determination”. Clause 2.1 addressed “[t]he scope of the determination”. Clause 2, the form of which remains the same in the final Determination as varied by the Tribunal in 2022, is central to the issue on the appeal to this Court.
In 2019, the Tribunal varied the ACCC’s 2018 determination in a manner that will require some consideration below.
Glencore then sought review of the Tribunal’s decision in the Full Court of the Federal Court (it is convenient to refer to this as the appeal to the Full Court). In 2020, the Full Court ordered that the decision of the Tribunal be set aside, and remitted the matter to the Tribunal: (2020) 280 FCR 194; [2020] FCAFC 145. Again, it will be necessary to return to the reasoning in the Full Court in some detail below.
The ACCC’s original determination given on 18 September 2018 was varied by way of markup by the Tribunal on 5 April 2022 (the Tribunal’s markup is retained in the extracts below). No amendments were made to cl 2, which outlines the scope of the Determination: Application by Port of Newcastle Operations Pty Ltd (No 3) [2022] ACompT 2.
The Determination records its background as follows.
“Background
On 4 November 2016, Glencore Coal Assets Australia Pty Ltd (Glencore) notified the Australian Competition and Consumer Commission (ACCC) under section 44S of the Competition and Consumer Act 2010 (Cth) (the Act) of an access dispute in relation to the declared shipping channel service provided by Port of Newcastle Operations Pty Ltd (PNO). In particular, the Navigation Service Charge for coal vessels levied by PNO.
The declared shipping channel service (the Service) is defined as:
The provision of the right to access and use the shipping channels (including berths next to wharves as part of the channels) at the Port, by virtue of which vessels may enter a Port precinct and load and unload at relevant terminals located within the Port precinct and then depart the Port precinct.
The Commission constituted for the purposes of this arbitration (the Commission) provides this Final Determination on access by Glencore to the Service at the Port of Newcastle (the Port) under section 44V(1) of the Act. The Commission has also provided the parties with an accompanying Statement of Reasons.”
“Backdating
1.2 The Navigation Service Charge and Wharfage Charge apply from the period starting 8 July 2016, as per clause 1.3.
1.3 The charges to apply during the period of backdating are to be determined through a deflation of the charges specified in 5.1 and 6.1 using the Sydney All Groups Consumer Price Index number published by the Australian Bureau of Statistics (CPI Sydney), calculated as the average of the latest four quarters over the average of the preceding four quarters.”
“2. Scope
2.1 The scope of the determination includes the terms and conditions of access:
(a) where Glencore, either directly or by agent, charters a vessel to enter the Port precinct and load Glencore coal, and
(b) where Glencore makes a representation to PNO of the kind referred to in section 48(4)(b) of the Ports and Maritime Administration Act 1995 (the PMAA) that it has the functions of the owner of a vessel, or accepts the obligation to exercise those functions, in order to enter the Port precinct and load Glencore Coal.
2.2 For the avoidance of doubt, the determination does not apply to:
(a) the terms and conditions of access to apply in respect of vessels carrying coal that have not been chartered by Glencore or in respect of which Glencore has not made a representation of the kind referred to in section 48(4)(b) of the PMAA
(b) terms and conditions of access for vessels other than those calling at the coal terminals at the Port, and
(c) any charges imposed by PNO other than the Navigation Service Charge and the Wharfage Charge.”
“3. Notification and information to be provided by Glencore
3.1 Glencore must provide 48 hours’ prior written notice of its intention to use the Service under the terms of this determination. In the absence of notice the standard terms of access will apply. This term is waived for the period of backdating in clause 1.2.
3.2 For the purpose of the backdating under clause 1.2. and the true up under clause 9.2, within 30 days of the date of this determination, Glencore is to:
(a) identify to PNO each vessel falling within the scope of clause 2.1. for the period 8 July 2016 to the date of this determination; and
(b) for each such vessel, provide to PNO copies of:
(i) the relevant Vessel Berthing Application lodged via the ePorts portal hosted by the Port Authority of NSW, or
(ii) completed manifests required to be lodged under Regulation 17 of the Ports and Maritime Administration Regulation 2012 or Regulation 12 of the Ports and Maritime Administration Regulation 2021 (as the case may be) and clause 12.2 of the PNO’s Vessel Standard Terms and Conditions; or
(iii) the information required by Regulation 11 of the Ports and Maritime Administration Regulation 2012 or Regulation 6 of the Ports and Maritime Administration Regulation 2012 (as the case may be).”
“4. Building Block Model
The building block model is to be used to calculate the maximum allowable revenue that PNO may recover from the Wharfage Charge and Navigation Service Charge in each relevant period. The inputs to the building block model and the charges are reviewable as set out in clauses 5 to 9.”
(A building block model involves calculating the maximum allowable revenue (MAR) that a business may recover over a specified period, having regard to the efficient costs of providing the relevant service, including an appropriate return on capital. As its name suggests, the MAR is in the nature of a cap. Charges, such as the navigation service charge, are then derived from the MAR. See the discussion below under the heading, The MAR*.*)
Clauses 5 and 6 deal with the wharfage charge and navigation service charge.
“5. Wharfage Charge
5.1 The Wharfage Charge payable by Glencore to PNO in accordance with this determination will be $0.0746 per revenue tonne as at 1 January 2018.
5.2 The Wharfage Charge will be indexed on 1 January of each subsequent year by CPI Sydney determined by reference to the CPI published for the September quarter of that year.
6. Navigation Service Charge
6.1 The Navigation Service Charge payable by Glencore to PNO in accordance with this determination will be $1.0058$0.6075 as at 1 January 2018.
6.2 The Navigation Service Charge will be reviewed on an annual and five-yearly basis as set out in clauses 7 and 8.”
It should be noted that cl 5.2 provides the only mechanism by which the wharfage charge is to be adjusted: indexation by reference to consumer inflation.
By contrast, cll 7 and 8 provide for annual and five-yearly reviews of the navigation service charge on a much more sophisticated basis, and one much more likely to reflect the efficient cost of operating the port over time. The five-year review in particular includes review of the following inputs into the building block model: the regulated asset base, the useful life of assets, the weighted average cost of capital, and forecast capital and operating expenditure for the following five-year period.
Finally, cl 10 concerns the invoicing process for the charges.
“10. Invoicing
10.1 PNO will issue a valid tax invoice in relation to any Wharfage Charge arising under the determination within 7 days of receipt from Glencore of the applicable cargo manifest prescribed by the PMAA.
10.2 PNO will issue a valid tax invoice to Glencore in relation to any Navigation Service Charge arising under this determination within 7 days of the vessel entering the Port.”
Glencore’s four grounds of appeal are in summary as follows.
The primary judge erred by finding that, on the proper construction of the Determination, “the appellant is only able to access the wharfage charge as set by the Determination if it meets the conditions of clause 2.1 of the Determination and is also liable to pay the navigation service charge”.
The primary judge erred in finding that the scope of the dispute resolved by the Determination “concerned the terms of access when the appellant was accessing both the navigation service charge and wharfage charge … whereas the dispute resolved by the Determination also included the terms of access to the wharfage charge in and of itself.”
The primary judge ought to have found that, in the context of the reasons of the Full Court, the High Court and the Tribunal on remittal, “clause 2.1 of the Determination only specifies the circumstances in which the appellant may access the navigation service charge under the Determination and does not specify the circumstances in which the appellant may access the wharfage charge under the Determination.”
The primary judge ought to have found that, on the proper construction of the Determination, “the appellant may access the wharfage charge set by the Determination whenever it is the ‘owner’ of cargo within the meaning of s 48 of the [PMA Act] and is liable to pay the wharfage charge, whether or not the appellant is also liable to pay the navigation service charge.”
Since the four grounds overlap in significant respects, it is convenient to address the substance of the parties’ arguments about the construction of the Determination in some detail before returning to the grounds.
Since it is not in dispute that construing the Determination begins and ends with its text, that is a convenient place to begin.
As to matters of context, there also appears to be no dispute that the Tribunal’s 2022 Reasons for Determination may be taken into account for the purposes of construing the Determination.
Beyond that, the parties disagree about the nature and extent of the extrinsic material that constitutes the relevant interpretive context. It is convenient to defer discussion of those issues, not least because it is best undertaken with some understanding of the object in view.
Starting with the text of the Determination read as a whole, Glencore does not dispute that if the Determination applies only in the circumstances identified in subcll 2.1(a) and (b), it cannot obtain the benefit of the determined wharfage charge without also being liable to pay the determined navigation service charge.
However, Glencore emphasises the non-exclusive aspect of the word “includes” in the opening words of cl 2.1: “The scope of the determination includes the terms and conditions of access: (a) where Glencore … , and (b) where Glencore …” On Glencore’s case, cl 2.1 therefore does not exhaust the circumstances in which the Determination applies.
Glencore’s submission should not be accepted. The word “includes” must be read in context and idiomatically.
The heading of cl 2 is “Scope”, not “Part of Scope”. No other part of the text is directed to the circumstances in which the Determination applies. That being so, cl 2 would be expected to set out a complete statement of the scope of the Determination. The Tribunal took the trouble of identifying two particular conditions in subcll 2.1(a) and (b) that would bring Glencore within the scope of the Determination. It would be surprising if the Tribunal had also decided that the satisfaction of other conditions — which were not identified and for the identification of which the Tribunal provided no criteria — would also bring Glencore within the scope of the Determination. Given that both of the conditions in subcll 2.1(a) and (b) would render Glencore liable to pay the navigation service charge, it would be particularly surprising if the Tribunal had decided that upon satisfaction of other, unstated, conditions Glencore could take advantage of the determined rate for the wharfage charge without being liable to pay the navigation service charge.
Clause 2.1 begins with the words, “The scope of the determination …” It does not begin with the words, “The scope of the Navigation Service Charge …” Similarly, the clause refers to “the terms and conditions of access”.
The word “scope” in the words at the start of cl 2.1 itself suggests that the clause is concerned with identifying the line dividing what is within scope (what is “included”) from what is beyond scope (what is excluded). In that context, the words “The scope of the determination includes …” are capable of meaning, as a matter of normal usage, “The scope of the determination encompasses …” Indeed, if the sentence had read, “What is included in the scope of the determination is the terms and conditions of access: (a) where Glencore … , and (b) where Glencore …”, it would be contrary to normal usage to read the word “included” as non-exclusive, so as to contemplate that other unidentified conditions might also bring Glencore within scope.
Clause 5.1 refers to the “Wharfage Charge payable by Glencore to PNO ”. But the only part of the Determination which identifies the conditions which must be satisfied in order for it to apply is cl 2.
It is uncontroversial that the 2022 Reasons for Determination (Application by Port of Newcastle Operations Pty Ltd (No 3)) published by the Tribunal together with the Determination are relevant to its interpretation.
The Tribunal observed at [3]-[4] that the form of determination which had been proposed by PNO, which Glencore did not oppose, went beyond the legal issues determined by the High Court in Glencore HC (as to which, see below.) The Tribunal nevertheless considered that it was appropriate to make the determination as proposed: at [5].
The Tribunal summarised the history of the dispute. Relevantly for present purposes (that is, as to the scope of the Determination), the Tribunal pointed out at [6]: “The dispute concerned the rates of the navigation service charge and wharfage charge levied by PNO in respect of the shipping channel service and berthing service respectively, and terms related to the imposition of those charges. Ultimately, though, the parties were agreed as to the rate of the wharfage charge.” The Reasons did not suggest that there was agreement as to the “terms related to the imposition of” the determined wharfage charge, such as the circumstances in which Glencore would have the benefit of the determined wharfage charge. Still less did the Reasons suggest that Glencore could have the benefit of the determined wharfage charge independently of being liable to pay the determined navigation service charge.
The Tribunal noted that the ACCC’s original 18 September 2018 determination “determined that the navigation service charge would apply in respect of vessels using the shipping channel service in two circumstances”, namely, those in subcll 2.1(a) and (b): at [7]. (It will be remembered that the original 2018 form of cl 2.1 was retained in the 2022 Determination.)
The Tribunal noted at [9] that a (differently constituted) Tribunal had varied the 2018 ACCC determination in two respects on 30 October 2019. Relevantly for present purposes, the Tribunal said:
“[9] … The second [of the Tribunal’s variations] concerned the description of the vessels using the shipping channels that were within the scope of, and were able to benefit from, the determination. In that respect, the Tribunal confined the determination to circumstances where Glencore, either directly or by agent, charters a vessel to enter the Port precinct and load Glencore coal.”
The Tribunal noted that:
on 24 August 2020 the Full Court of the Federal Court set aside the Tribunal’s 2019 determination and remitted the matter to the Tribunal for re-determination according to law: at [10]; and
on 8 December 2021, “[i]n respect of the scope of the determination, the High Court accepted PNO’s appeal in part and dismissed it in part.”
The Tribunal then stated at [11]-[12]:
“[11]… The High Court concluded as follows (at [104]-[111], references omitted):
104 The Declaration, it will be recalled, relevantly described the Service as ‘the provision of the right to access and use the shipping channels (including berths next to wharves as part of the channels) at the Port’. Plainly, the introductory reference to ‘the provision of the right to access’ is surplusage. Having regard to the structure of the definition of "service" set out in s 44B of the Act, the service declared by the Declaration is ‘the use’ of an infrastructure facility constituted by the shipping channels, which are treated for the purposes of the Declaration as including the berths.
105 In circumstances where Glencore wants to ensure that it can continue to enjoy the economic benefit that it unquestionably gets from the ability of ships, loading and carrying the coal that it sells to overseas buyers, to use the shipping channels and berths at the Port, Glencore is a person who wants ‘access’ to the Service. Glencore is thereby a ‘third party’. By operation of the Declaration, Glencore as a ‘third party’ has a right to negotiate with PNO about the amount of the navigation service charge that PNO might fix for the Service. That is so whether Glencore sells FOB or CIF.
106 By exercising the right to negotiate through notifying an access dispute about the amount of the navigation service charge payable in respect of ships carrying the coal that it sells to overseas buyers either FOB or CIF, Glencore became entitled to an arbitrated bilateral outcome. The outcome to which Glencore became entitled was no less than could have been achieved without arbitration had PNO been willing to reach an agreement with Glencore about the amount of the navigation service charge payable by Glencore as permitted under the provisions of the PMA Act.
107 The Full Court was, on that basis and to that extent, correct to conclude that the Tribunal had erred in law in treating the permissible scope of the Final Determination as confined to circumstances where Glencore exercised some measure of control over the physical activity of moving a vessel through a shipping channel. The Full Court was therefore correct to set aside the Tribunal Decision and to remit the matter to the Tribunal for redetermination of the Final Determination.
108 Equally, however, the arbitrated outcome to which Glencore became entitled by exercising the right to negotiate was no more than could have been achieved without arbitration had PNO been willing to reach an agreement with Glencore about the amount of the navigation service charge payable by Glencore as permitted under the provisions of the PMA Act. The Full Court would have been incorrect to the extent that its additional observations, already quoted, might indicate that the Tribunal's re-arbitration of the access dispute could result in a determination governing the circumstances in which PNO would seek and accept payment of the Navigation Service Charge from a person other than Glencore in respect of the particular use of the shipping channels by a particular ship carrying coal sold by Glencore.
109 Subject to the constraints of tort and competition law, and to the provision of contractual consideration, one person can ordinarily enter into a binding contract with another person about the price at which that second person will offer a service to a third person. The third person will then become liable to pay the price to the second person under a separate contract that will be formed between the second person and the third person if and when the offer is made and accepted.
110 Here, however, the terms of the PMA Act do not permit PNO to enter into that kind of bilateral arrangement having potential consequences for a third person. It will be recalled that s 67 of the PMA Act relevantly goes no further than to permit PNO to enter into an agreement about the amount of the navigation service charge with a person who is liable to pay the navigation service charge. Absent any other person with a sufficient interest having chosen to become a party to the arbitration of the access dispute between PNO and Glencore, the only person who has the potential to become liable to pay the Navigation Service Charge as a result of the Final Determination is Glencore. When Glencore sells FOB, Glencore can answer the description of a person who is liable to pay the Navigation Service Charge only by acting to bring itself within the extended meaning of ‘owner’ of a vessel in s 48(4)(b) of the PMA Act so as to accept the obligation to pay the Navigation Service Charge.
111 The Tribunal on remitter must therefore be confined to determining the circumstances in which the Navigation Service Charge will be payable by Glencore to PNO. In respect of the particular use of the shipping channels by a particular ship carrying coal sold by Glencore, the concern of the Tribunal will be to work out a practical mechanism to govern when and how Glencore will invoke s 48(4)(b) of the PMA Act to represent to PNO that it accepts the obligation to pay the Navigation Service Charge.
[12] The High Court varied the orders of the Full Court such that the remitter to the Tribunal is confined to re-determining the scope of the navigation service charge (that is, the description of the vessels using the shipping channels to which the navigation service charge is applicable).”
(Emphasis supplied.)
The focus of the parties’ dispute had been at all relevant times the navigation service charge. As is clear from the italicised passages in the quotation above, in the High Court Glencore failed to achieve its central commercial objective with respect to the navigation service charge. Glencore lost on the question whether, where it sells FOB, a s 44V determination could “govern[] the circumstances in which PNO would seek and accept payment of the Navigation Service Charge from a person other than Glencore in respect of the particular use of the shipping channels by a particular ship carrying coal sold by Glencore”. That was the issue to which the High Court’s [111] was directed: “The Tribunal on remitter must therefore be confined to determining the circumstances in which the Navigation Service Charge will be payable by Glencore to PNO”.
It was again to that issue that the Tribunal’s [12] was directed. In light of the High Court’s decision, the words, “confined to re-determining the scope of the navigation service charge” necessarily mean the navigation service charge payable by Glencore itself. It was thus for the Tribunal to formulate “the description of the vessels using the shipping channels to which the navigation service charge is applicable” where Glencore itself would be liable to pay the navigation service charge.
The Tribunal then considered the scope of its powers on the remitter, taking a broad view: at [13]-[21].
The heading to [24] was “Scope of the determination” — again, not “Scope of the Navigation Service Charge”. The whole of the reasoning on that issue was set out at [24]-[26] as follows.
“[24] The High Court concluded that the Tribunal erred in law in confining the scope of the determination to circumstances where Glencore, either directly or by agent, charters a vessel to enter the Port precinct and load Glencore coal. As the above extract of the High Court’s reasons explains, leaving aside the terms of the PMA Act, Glencore would have the right to negotiate with PNO about the amount of the navigation service charge that PNO might fix for the shipping channel service whether Glencore sells under ‘free on board’ (FOB) or ‘cost, insurance and freight’ (CIF) contracts. As such, Glencore would have the right to notify an access dispute, and seek arbitration, in respect of the navigation service charge to apply in respect of ships carrying the coal that it sells to overseas buyers either FOB or CIF. However, s 67 of the PMA Act limits PNO’s ability to enter into an agreement with Glencore in respect of the navigation service charge when Glencore sells FOB. In respect of FOB sales (where the coal buyer arranges shipping from the Port), Glencore can answer the description within s 67 of a person who is liable to pay the navigation service charge only by acting to bring itself within the extended meaning of ‘owner’ of a vessel in s 48(4)(b) of the PMA Act so as to accept the obligation to pay the navigation service charge.
[25] In light of the High Court’s conclusion concerning the scope of the determination, PNO proposed that the Tribunal make no change to the ACCC’s arbitral determination on this issue. It will be recalled that the ACCC determined that the navigation service charge would apply in respect of vessels using the shipping channel service in two circumstances:
(a) where Glencore, either directly or by agent, charters a vessel to enter the Port precinct and load Glencore coal; and
(b) where Glencore makes a representation to PNO of the kind referred to in s 48(4)(b) of the PMA Act that it has the functions of the owner of a vessel, or accepts the obligation to exercise those functions, in order to enter the Port precinct and load Glencore coal.
[26] The Tribunal agrees that the ACCC’s arbitral determination on this issue is consistent with the High Court’s ruling.”
(Emphasis supplied.)
As the italicised passages make clear, the issue to which cl 2.1 of the Determination is directed is “the scope of the determination”. True it is that the two conditions in cl 2.1 of the Determination are both circumstances in which Glencore would be liable pursuant to s 50(4) of the PMA Act to pay the navigation service charge. That was the point of the reasoning in the High Court: that Glencore was not entitled to obtain an arbitrated determination of the navigation service charge payable under the PMA Act by persons other than Glencore itself (in particular, by Glencore’s buyers when it sold FOB). That conclusion is in no way inconsistent with a construction of cl 2.1 as providing that the Determination applies only when Glencore is liable to pay the navigation service charge. To the contrary, it supports that conclusion.
The Tribunal made other amendments to the determination. These included with respect to cl 3.2. Glencore relies on [29], where the Tribunal said:
“Clause 3.2
[29] In order to calculate the navigation service charge payable during the period of backdating, and in order to perform the ‘true-up’ provided for by cl 9, PNO requires certain information, including which Glencore vessels fell within the scope of the determination (as set out in cl 2.1), and their gross tonnages. As presently drafted, the ACCC determination does not contain any mechanism for Glencore to provide this information to PNO. Clause 3.2 addresses this gap in the determination. It requires Glencore to identify the vessels covered by the determination in the period 8 July 2016 to the date of the determination and to provide information that will enable PNO to ascertain and verify the gross tonnage of each vessel covered by the determination.”
Glencore submits that this passage indicates that cl 3.2 is concerned only with backdating the navigation service charge. The submission should not be accepted. The fact that [29] refers only to the navigation service charge does not alter the facts that (1) cl 1.2 provides for the wharfage charge to be backdated; (2) cl 3.2 refers to “the backdating under clause 1.2”, i.e. of both the wharfage charge and the navigation service charge; and (3) that the information to be provided pursuant to cl 3.2(b) includes information relevant to backdating the wharfage charge, e.g., completed manifests.
In the result, the Reasons do not undermine the interpretation of the text of the Determination when read as a whole as discussed above. To the contrary, the Reasons support a construction of cl 2.1 which limits the application of the Determination to cases where Glencore has satisfied one or the other of the two conditions in subcll 2.1(a) and (b), such that Glencore is liable to pay the navigation service charge pursuant to s 50(4) of the PMA Act.
The object of construing the Determination is to ascertain its legal meaning: what the Tribunal decided, as expressed in the language the Tribunal used in the Determination.
As discussed above, that exercise starts and ends with the text of the Determination, read as a whole. However, there is a substantial difference in the parties’ approaches to the role of context in the interpretive process.
Glencore advanced an expansive conception of the extrinsic material said to form the context in light of which the Determination is to be construed. Many of Glencore’s submissions on appeal were directed to what it argued were omissions and errors in the primary judge’s summary of the history of the access dispute and the litigation it spawned (in the Tribunal, the Full Court and the High Court) which led to the Determination.
Those arguments went well beyond identifying what was specifically decided in the course of the litigation. They descended to the level of attempting to draw out the implications of submissions made by the parties at various stages, and purported to identify a number of unstated assumptions (repeatedly described in oral submissions as “premises”) standing behind the submissions or the decisions given by the Tribunal, the Full Court and the High Court. As will be seen, the asserted “premises” are themselves often contestable. But Glencore’s basic submission — that when cl 2.1 is considered in light of this minutely detailed procedural history, it is apparent that the Tribunal never sought to confine the scope of the wharfage charge by reference to the matters contained in that clause — raises a larger issue of principle about the scope of extrinsic contextual material that may be taken into account as context when construing a s 44V determination.
PNO submits that there is a “methodological reason” why the procedural history that led to the Determination should be given “short shrift”. First, it submits that the parties’ submissions at various stages and the decisions of the various courts and administrative bodies are not extrinsic material as that term is understood either at common law or with respect to the interpretation of statutes. Secondly, PNO submits that the appellant has not identified any ambiguity that would give rise to recourse to such material. PNO draws an analogy with the approach taken to construing a Torrens title registered easement in Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528; [2007] HCA 45.
The correct approach to the construction of a s 44V determination lies somewhere between the parties’ positions.
The starting point is to recognise, as Leeming JA succinctly put it in Mainteck Services Pty Ltd v Stein Heurtey (2014) 89 NSWLR 633; [2014] NSWCA 184 at [76], that “language is unavoidably contextual”. See, to similar effect, (2019) 267 CLR 514; [2019] HCA 13 at [83] per Edelman J. It follows that the process of determining the legal meaning of a text invariably requires some consideration of its context. That is as true of statutes (perhaps the paradigm public text) as it is of contracts (perhaps the paradigm private text). Thus, “the modern approach to statutory interpretation … insists that the context be considered in the first instance …”: (1997) 187 CLR 384 at 408; [1997] HCA 2 per Brennan CJ, Dawson, Toohey and Gummow JJ. Equally, High Court authority “endorses and requires a contextual approach to the construction of commercial contracts”: at [86] per Leeming JA, Ward and Emmett JJA agreeing.
“[15] … access disputes within the context of Pt IIIA are bilateral in nature. The ACCC is empowered to arbitrate a notified dispute between an access seeker (referred to as a third party) and the access provider. The arbitral determination that is made by the ACCC under s 44V is binding only on the parties to the arbitration and has no wider application. The issues in dispute are defined by the parties to the arbitration. … In conducting the re-arbitration, the Tribunal performs the same function and exercises the same powers subject to the same restrictions and mandatory considerations.”
“[51] In Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 1) [2005] 2 Qd R 174 at 178, Muir J observed, in the context of an application to enforce an interim commercial arbitral award pursuant to s 33 of the Commercial Arbitration Act 1990 (Qld), that in ‘considering the terms of an award … it would be inappropriate … to adopt a narrow or pedantic approach to its construction’. In the words of Sachs J, in order ‘to ensure that the Court’s interpretation of the award is correct’, regard may be had to ‘what was submitted to the arbitrator’: Blackford & Sons (Calne) Ltd v Borough of Christchurch [1962] 1 Lloyd’s Rep 349 at 356. …”
The difficulty with approaching a s 44V determination as if it were no more than a private arbitral award is that it overlooks its purpose and public character. The purpose of s 44V determinations — to promote competition — is to be found in the objects of the statutory competition regime pursuant to which they are made. The public character of s 44V determinations arises from the statutory framework governing their publication. The purpose and public character of s 44V determinations provide strong reasons for taking a restrictive view of the extrinsic material that may be taken into account when interpreting it.
Section 2 of the CCA provides: “The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.”
Section 44AA then provides for the more specific objects of Pt IIIA:
44AA Objects of Part
The objects of this Part are to:
(a) promote the economically efficient operation of, use of and investment in the infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets; and
(b) provide a framework and guiding principles to encourage a consistent approach to access regulation in each industry.
As noted above, the High Court described s 44AA(a) as stating the “principal object” of Pt IIIA. The access regime does not exist in order to benefit any one third party access-seeker, such as Glencore. The central object of the Part is rather to promote effective competition in upstream and downstream markets. Importantly for present purposes, that statutory object is the first of the mandatory matters that the ACCC must take into account in making a final determination: s 44X(1)(aa).
Part of the means by which Part IIIA achieves its principal object is by creating a regime for the publication of s 44V determinations and the supporting reasons.
Section 44ZNB provides:
44ZNB Arbitration reports
(1) The Commission must prepare a written report about a final determination it makes. It must publish, by electronic or other means, the report.
(2) The report may include the whole or a part of the determination and the reasons for the determination or the part of the determination.
Report must include certain matters
(3) The report must set out the following matters:
(a) the principles the Commission applied in making the determination;
(b) the methodologies the Commission applied in making the determination and the reasons for the choice of the asset valuation methodology;
(c) how the Commission took into account the matters mentioned in subsection 44X(1) in making the determination;
(d) any matter the Commission took into account under subsection 44X(2) in making the determination and the reasons for doing so;
(e) any information provided by the parties to the arbitration that was relevant to those principles or methodologies;
Note: Confidentiality issues are dealt with in subsections (5) to (7).
(f) any implications the Commission considers the determination has for persons seeking access to the service or to similar services in the future;
(g) if applicable—the reasons for the determination dealing with matters that were already agreed between the parties to the arbitration at the time the access dispute was notified;
(h) if applicable—the reasons for the access dispute being the subject of a joint arbitration hearing under section 44ZNA despite the objection of a party to the arbitration.
Report may include other matters
(4) The report may include any other matter that the Commission considers relevant.
Confidentiality
(5) The Commission must not include in the report any information the Commission decided not to give to a party to the arbitration under section 44ZL.
(6) Before publishing the report, the Commission must give each party to the arbitration a notice in writing:
(a) specifying what the Commission is proposing to publish; and
(b) inviting the party to make a written submission to the Commission within 14 days after the notice is given identifying any information the party considers should not be published because of its confidential commercial nature.
(7) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.
Legislation Act 2003
(8) A report prepared under subsection (1) is not a legislative instrument.
44ZZL Register of determinations
The Commission must maintain a public register that specifies the following information for each determination:
(a) the names of the parties to the determination;
(b) the service to which the determination relates;
(c) the date on which the determination was made.
Unsurprisingly, given the potential for issues of commercial confidentiality (see s 44ZNB(5), (6) and (7)), there is no absolute statutory obligation to publish the whole text of a s 44V determination, or the reasons for it. But the power conferred on the ACCC by s 44ZNB(2) to publish in its report “the whole or a part of the determination and the reasons for the determination or the part of the determination” falls to be exercised having regard to the objects in ss 2 and 44AA of the CCA. In the ordinary case, the publication of the text of a final determination and the reasons for it is likely to promote competition. That that is so is implicit in s 44ZNB(3)(f), which requires the report to include “any implications the Commission considers the determination has for persons seeking access to the service or to similar services in the future”.
That being so, it may be expected that the ACCC, when exercising the power to publish a s 44ZNB report, will include so much of the text of a determination and the reasons for it as is practical, consistently with the need to protect confidential material.
The significance of a s 44V determination for persons other than the parties to the arbitration was recognised in Glencore HC. The Court acknowledged at [101] that “it is possible to imagine persons other than Glencore also invoking the right to negotiate with PNO about the amount of the navigation service charge applicable to the use of the shipping channels by a particular ship carrying coal sold by Glencore”. However, the Court then relied on the strong likelihood of consistency in the terms of any overlapping ACCC determinations to dismiss any concern that an expansive approach to the right to negotiate might result in multiple third-party access disputes:
“[102] To imagine the prospect of practical mischief resulting from multiple access disputes is quite unreal. Once access is determined on reasonable terms and conditions, the bottleneck is unblocked. All in the supply chain benefit. The incentive for someone else in the supply chain to go to the trouble and incur the expense of invoking the right to negotiate in the hope of achieving a better arbitrated outcome must be slight. Trivial or vexatious attempts to invoke the right to negotiate can be put to one side on the basis that they are readily capable of being weeded out in the exercise by the ACCC of its power to terminate an arbitration. If overlapping substantive arbitrations of disputes over access to the same service were ever to occur, those disputes would be required to be determined by the same arbitrator – the ACCC – applying the same statutory criteria. This would mean that the chance of inconsistent final determinations would for practical purposes be non-existent.”
(Emphasis supplied.)
That reasoning has implications for the correct approach to interpreting a s 44V determination. The force of the Court’s observation that “[a]ll in the supply chain benefit” from the arbitrated determination of reasonable terms and conditions of access to a declared service is that a s 44V determination will promote competition, in furtherance of the principal object of Pt IIIA. That proposition assumes not only that the text of the determination will be publicly available. It also assumes that the legal meaning of a s 44V determination will be readily understood by third parties seeking (or potentially seeking) access to the declared service, who were not parties to any ACCC arbitration or Tribunal review process.
In light of the latter assumption, the purpose of a s 44V determination — to promote competition — suggests that a determination should be construed from the perspective of a reasonable person in the shoes of a third party access seeker (including a prospective access seeker), as at the time of the determination. That is to say, the legal meaning of the Determination — what the Tribunal decided by way of variation of the ACCC’s 2018 determination, as expressed in the language the Tribunal used — should be ascertained objectively, and (putting to one side cases where, for example, an ambiguity can sensibly be resolved only by reference to material that is not publicly available) without regard to extrinsic material that would not be reasonably available to a third party seeking (or potentially seeking) access to the Service.
That approach may have a material effect on the extrinsic contextual material which may be taken into account in the process of construction of a s 44V determination. To take an example of some importance for the argument Glencore advances in this case, a potentially significant part of the context informing the question, what did the Tribunal decide, as expressed in the language the Tribunal used, is an anterior question: what was in issue before the Tribunal? More precisely, what should the Tribunal be taken to have understood were the matters for decision before it, which it went on to decide in the Determination? (Cf. Ground 2 above.) The submissions made to the Tribunal might well have a bearing on that issue. But a reasonable person in the shoes of a third party access seeker would not know what submissions were made to the Tribunal, other than to the extent that they were recorded in the Reasons given for the Determination.
Finally, something should be said about PNO’s argument drawing a parallel with Westfield, which concerned the interpretation of registered dealings under the Torrens system of title — in that case, the instrument granting an easement. The Court held at [37] that the parties’ submissions about the permissible extent of extrinsic evidence to be used as an aid in construction of the terms of the grant engaged “more fundamental considerations” arising from “the maintenance of a publicly accessible register containing the terms of the dealings with land” and the principle of indefeasibility. The Court said at [39]:
“The importance this has for the construction of the terms in which easements are granted has been remarked by Gillard J in Riley v Penttila and by Everett J in Pearce v City of Hobart. The statement by McHugh J in Gallagher v Rainbow, that: ‘[t]he principles of construction that have been adopted in respect of the grant of an easement at common law ... are equally applicable to the grant of an easement in respect of land under the Torrens system’ is too widely expressed. The third party who inspects the Register cannot be expected, consistently with the scheme of the Torrens system, to look further for extrinsic material which might establish facts or circumstances existing at the time of the creation of the registered dealing and placing the third party (or any court later seized of a dispute) in the situation of the grantee.”
(Emphasis supplied; citations omitted.)
(See also Deguisa v Lynn (2020) 268 CLR 638; [2020] HCA 39, especially at [66]-[71].)
The scheme of the access regime legislation pursuant to which the Determination was made, and its purpose of unblocking the bottleneck once access was determined on reasonable terms and conditions, engages somewhat similar considerations. Consistently with the purpose of the statutory scheme, those interpreting a s 44V determination cannot be expected to search for extrinsic contextual material to put themselves in the situation of the parties to an ACCC arbitration or a Tribunal review proceeding which led to the determination. A s 44V determination can have only one meaning; it cannot be given a different interpretation depending on whether or not the person construing it happens to have knowledge of, for example, submissions made at some earlier stage in the procedural history and not referred to in the ACCC’s or the Tribunal’s reasons accompanying the determination.
However, there are limits to the analogy, and to what Senior Counsel for PNO submitted was the “high premium value in documents of this kind appearing on their face self-contained as to interpretation subject only to what statutes about interpretation may say about terms used in them, because statutes are of course equally available”: Tcpt, 20 November 2025, 40.19-22. The concern driving the approach to construction in Westfield was the primacy of a publicly accessible register containing the terms of dealings with land. That concern led directly to the “high premium value” on text. The driving concern with respect to s 44V determinations is conceptually different: it is the statutory object of promoting competition. Securing that object may require that regard be had to a wider range of material than text alone.
The Full Court of the Federal Court took a somewhat similar view in the Glencore proceedings when addressing an argument based on Westfield (with respect to the construction of the terms of the Service, as opposed to a s 44V determination). Their Honours said at [91]: “[H]ere the public register is explained by an available public document: the decision of the Tribunal. Whilst recognising that it is principally the words of the Service that create the statutory rights involved, their proper meaning and reach is informed by their statutory, legal and public commercial context.”
In any event, even in the context of Torrens title, the principle in Westfield has been held not to limit interpretive consideration to what is apparent on the face of a registered instrument: see Kirk JA’s comprehensive and learned discussion of the issue in Theunissen v Barter (2025) 117 NSWLR 49; [2025] NSWCA 50 at [60]-[108] (Mitchelmore JA and Griffiths AJA agreeing). For example, as was held in Theunissen, when construing a registered easement the physical characteristics of the relevant tenements and the surrounding land as at the time of the grant may be taken into account.
In the result, for the purposes of interpreting a s 44V determination, a reasonable person in the shoes of a third party access seeker (including a potential access seeker) as at the time of an access determination will be taken to have regard to the published text of the determination and any accompanying reasons (cf. s 44V(5)). To the extent that a s 44V determination or any reasons expressly refer to, and thus incorporate, other material which would have been readily available to a reasonable person in the shoes of a third party access seeker, such material will form part of the context in which such a person would interpret the determination. It may also be that the meaning to be given to a determination by a reasonable person in the shoes of a third party access seeker would be affected by other information that would have been readily available to such a person at the time the determination was made. One example might be information about the physical characteristics of infrastructure the subject of a declared service as at the time of the s 44V determination.
On the other hand, matters known only to those directly involved in an ACCC arbitration or a Tribunal proceeding are not available for use in interpreting a s 44V determination. In light of the way in which Glencore put its case, it is not necessary to decide whether, in general (and putting to one side material incorporated by reference), the reasons for judgment given in related litigation form part of the interpretive context. It suffices to say that the particular use Glencore sought to make of the material discussed below would not be consistent with the statutory scheme. A reasonable person in the shoes of a third party access-seeker would not be expected to have recourse to such material to interpret a determination in the way Glencore submits.
As noted above, Glencore submitted that the procedural history was important context to be taken into account in construing the Determination. The detail of Glencore’s argument with respect to that history is considered in what follows. Two points should be noted by way of overview.
First, Glencore’s contextual argument involves a minute analysis of submissions made to the various courts and tribunals in litigation preceding the Tribunal’s 2022 Determination, and seeks to draw inferences from the reasons for decision when viewed in light of those submissions. Much of the material on which Glencore relies was not incorporated by reference. For the reasons given above, that process of reasoning is unavailable for the purpose of construing the Determination from the perspective of a reasonable person in the shoes of a third party access-seeker.
Secondly, even if that process of reasoning were available for use in construing the Determination, it would not establish the central proposition for which Glencore contends, namely, that the Determination permits Glencore to pay the determined wharfage charge without also being liable to pay the determined navigation service charge.
The basic problem with Glencore’s argument is that none of the decisions on which it relies directly discussed, let alone decided, that question. The issues ultimately contested in the litigation were not the rate of the wharfage charge (which the parties agreed); nor whether Glencore’s access to that part of the Service giving rise to liability to pay the wharfage charge permitted Glencore to seek arbitration of the wharfage charge (Glencore’s position is that it did); nor whether the Determination permitted Glencore to pay the determined wharfage charge without also being liable to pay the determined navigation service charge (the issue of construction before this Court).
Instead (and putting to one side the dispute as to the amount of the navigation service charge), the litigation was principally directed to a very different dispute: whether, and in what circumstances, Glencore was entitled to seek arbitration of the navigation service charge. In particular, whether, in respect of FOB contract sales, Glencore was entitled to seek arbitration of the navigation service charge payable by the charterers of vessels carrying Glencore coal (typically the buyer). That was Glencore’s objective. One dimension of that dispute was whether the fact that Glencore physically accessed part of the Service provided by means of the port facility (i.e., a site for stevedoring operations), which made Glencore liable to pay the wharfage charge, entitled Glencore to seek arbitration of the navigation service charge, when the navigation service charge was payable in respect of a different part of the Service (the shipping channels) that Glencore itself was not physically accessing. It was held in the Full Court that Glencore was entitled to seek arbitration of the navigation service charge (including as to the navigation service charge payable by its buyers) on that basis. The High Court took a somewhat narrower view, in substance rejecting the proposition that Glencore was entitled to arbitrate the navigation service charge payable with respect to access to the shipping channels when Glencore was not the “owner” of the vessel as defined in s 48 of the PMA Act.
“[T]he provision of the right to access and use the shipping channels (including berths next to wharves as part of the channels) at the Port of Newcastle (Port), by virtue of which vessels may enter a Port precinct and load and unload at relevant terminals located within the Port precinct and then depart the Port precinct.”
On 4 November 2016, Glencore issued a notification of an access dispute to the ACCC in accordance with s 44S(1) seeking “arbitration by the ACCC on the reasonable level of navigation service charges, and access terms, to be imposed by PNO on coal vessel users of the Service.” As Glencore submitted, at this point the notified dispute related only to the navigation service charge.
Glencore submitted that it expanded the scope of the arbitration to include all charges imposed by PNO in relation to all circumstances in which the Service is accessed in relation to coal produced from mines operated by the Glencore companies.
On 14 September 2017, Glencore responded to the ACCC’s direction to provide submissions addressing certain questions. In response to the ACCC’s question “What are the parties’ views on the scope of the matters to be determined by the Commission in relation to the terms and conditions of access to the Service?”, Glencore relevantly answered:
“Scope of determination
1.2 Glencore submits that the scope of the matters to be determined in this arbitration include the level of all charges imposed by PNO in relation to the Service on Payers or anyone else carrying, loading or storing coal produced from mines owned or operated by Glencore, including the charges that are currently referred to by PNO in its Schedule of Port Pricing as the:
1.2.1 Navigation Services Charge; and
1.2.2 Wharfage
…
Scope of ‘third party’
1.4 We are aware that PNO is disputing that the scope of the arbitration can cover all instances in which Glencore coal is carried. This is because PNO is disputing that Glencore is a proper ‘third party’, for the purposes of notifying an access dispute under Division 3, of Part IIIA, CCA, where Glencore does not charter the coal vessels but instead the coal customer charters the vessel.
1.5 Glencore submits that the scope of the arbitration should cover all instances which involve coal from Glencore-owned or operated mines as indicated above, regardless of who is chartering the ship in each instance, for the following reasons:
…”
(Footnotes omitted.)
“4. Glencore submits that the scope of the ACCC’s determination should extend to apply in respect of vessels carrying coal that have not been chartered by Glencore or in respect of which Glencore has not made a representation of the kind referred to in section 48(4)(b) of the Ports and Maritime Administration Act 1995 (NSW) (PMAA).
…
9. The scope adopted by the ACCC in the Draft Determination is internally inconsistent. On the one hand, it is accepted that the Wharfage Charge is within scope in respect of Glencore’s coal loaded onto vessels at the wharves. However, on the other hand, the same coal loaded onto the same vessels is considered by the ACCC as out of scope for the purposes of the Navigation Service Charge (ie. unless Glencore charters the vessel or makes a presentation by the prescribed process under the PMAA).”
“At [9]-[11] of its submission dated 17 August 2018, Glencore contends that the scope of the determination is ‘internally inconsistent’. This is not the case:
▪ First, contrary to Glencore’s submission, the Wharfage Charge is only within the scope of the determination when Glencore is the charterer of the vessel or makes a representation of the kind referred to in s 48(4) of the PAMA Act in order to enter the Port precinct and load Glencore coal.
Consistent with the definition of the Service, Glencore is not using the Service unless it is accessing and using the shipping channel at the Port: …
Liability to pay the Wharfage Charge does not by itself constitute usage of the Service because it does not relate to use of the shipping channel, and the scope of the determination is properly referrable to only those circumstances where Glencore is accessing and using the shipping channel at the Port, this being the declared service.
…
The Commission’s proposal that the determination should also apply where Glencore makes a representation to PNO of the kind referred to in s 48(4)(b) of the PAMA is unnecessary. The use of the mechanism in s 48(4)(b) also gives rise to uncertainty, and creates a risk that the scope of the determination will be extended beyond the scope intended by the Commission, and permitted by s 44V.”
“Having considered the parties’ positions, the Commission has determined that the following matters are within the scope of the arbitration:
● the terms and conditions of access where Glencore, either directly or by agent, charters a vessel to enter the Port precinct and load Glencore coal, including all current and future charges relating to the provision of the Service to Glencore
● the terms and conditions of access where Glencore makes a representation to PNO of the kind referred to in section 48(4)(b) of the PMAA that it has the functions of the owner of a vessel, or accepts the obligation to exercise those functions, in order to enter the Port precinct and load Glencore coal
● the current level of and imposition of the Navigation Services Charge and the Wharfage Charge.”
“4.12 The scope in the ACCC’s Final Determination is internally inconsistent. The Wharfage Charge (which is part of the Service) is not within the scope of the ACCC’s determination except for vessels chartered by Glencore or where Glencore makes a representation of the kind referred to in s. 48(4)(b) of the PMAA, even though Glencore is already paying the charge as owner of the coal before it was loaded pursuant to s. 61 of the PMAA. This (presumably unintended) consequence illustrates the vice of the position taken by the ACCC.”
There is no reason to think that a reasonable person in the position of a third party access seeker at the time the Determination was made in 2022 would have been aware of that submission. On that basis Glencore’s 5 March 2019 submission to the Tribunal should be excluded from the contextual material available to construe the Determination.
But on Glencore’s approach, such material would be available. On that approach, Glencore’s 5 March 2019 submission to the Tribunal appears to have acknowledged that the natural and ordinary meaning of cl 2.1 as contained in the ACCC’s original determination — the text of which was the same as that in the final Determination — was that the determination applied only where Glencore was liable to pay the navigation service charge (because it had either chartered the vessel or made a s 48(4)(b) representation).
In its decision given on 30 October 2019, the Tribunal accepted PNO’s argument and limited the scope of the determination to “the terms and conditions of access where Glencore owns or, either directly or by agent, charters a vessel that enters the Port precinct and loads Glencore coal.”
Glencore submits in this Court that the following aspects of the parties’ submissions and the Tribunal’s reasoning became significant to the “appeal” from the Tribunal’s decision to the Full Court of the Federal Court and the later appeal to the High Court.
Glencore points to its argument before the Tribunal that if Glencore was using the Service to load coal at the wharves, it should be able to obtain the benefit of the determined rate with respect to other parts of the Service, namely the use of the shipping channels, even in circumstances where Glencore had not chartered the vessel or made a s 48(4)(b) representation. That argument was summarised by the Tribunal at [136] as follows.
“[136] Glencore also pointed to the fact that it was subject to and liable to pay the Wharfage Charge no matter whether Glencore or its customers were responsible for chartering the relevant vessel. It effectively inferred from this that Glencore was using, or PNO was providing access to, the Service. On this basis, Glencore contended that it should have the benefit of its arbitrated prices in both the circumstances outlined in the ACCC’s determination scope, as well as in respect of vessels carrying coal which have not been chartered by Glencore or in respect of which Glencore has not made a representation of the kind referred to in s 48(4)(b) of the PMAA.”
“[145] … Counsel for the ACCC clarified that the question of whether or not the Wharfage Charge (and thereby the use of ‘sites’ for which it is levied) falls within the Service was not a live issue before the ACCC. Rather, before the ACCC, the parties had provided an agreed model of charges and the Wharfage Charge was fixed (that is to say, agreed).”
Glencore submits that amendments to cl 2.1 suggested by the ACCC indicate that that clause was only concerned with the navigation service charge. Moreover, it submits that this view was ultimately adopted by the High Court and the Tribunal on remitter. The Tribunal summarised the ACCC’s proposed amendments to, relevantly, cl 2.1 at [146].
“[146] Separately, at the hearing before the Tribunal, the ACCC stated that, on further reflection, certain amendments should be made to clarify, but not substantively change, the meaning of the first inclusive limb of the determination scope. … [T]he ACCC considered the following amendments to clause 2 of the final determination were appropriate:
2.1 The scope of the determination includes is confined to the terms and conditions of access:
a. where Glencore owns or*, either directly or by agent, charters a vessel* to that enter**s the Port precinct and load**s Glencore coal, and*/or*
b. where Glencore falls within the extended definition of ‘owner of a vessel’ makes a representation to PNO of the kind referred to in respect of a vessel enter**ing and using the Port precinct and in order to load Glencore Coal*.**,* as a consequence of which Glencore:
(i) is liable to pay the navigation service charge under section 50(4) of the PMAA; and
(ii) as a person liable to pay that charge, has the authority under section 67 of the PMAA to negotiate with the relevant port authority with respect to: fixing the amount of any charge payable by the person to the relevant port authority, and any other matter which the relevant port authority is permitted by or under Part 5 of the PMAA to determine in respect of the charge, and any right or privilege which by or under Part 5 of the PMAA accrues to the person liable to pay the charge, or which the relevant port authority may confer on the person.
…”
(It should be noted that these proposed amendments were never made.)
“Put simply, the debate between the parties and the ACCC regarding the scope of the determination is resolved by answering the question what it means to access or use the Service … PNO says that to use or access the Service means to navigate the shipping channels of the Port. Because of this, only a person controlling or in charge of a vessel is able to use or access the service.
“[151] … In the Tribunal’s view, this connecting phrase [‘by virtue of which’] describes the function of the shipping channels (as was contended by PNO), not the purpose of the Service (as was contended by Glencore). When one, as an exercise in interpretive analysis, substitutes ‘by virtue of which’ with other synonymous connecting phrases in the context of the description of the Service, such as ‘as a result of which’ or ‘through which’ or ‘by reason of which’, the language that follows (‘vessels may enter the Port precinct and load and unload at relevant terminals…’) strikes the reader as secondary to the primary thrust of the description of the Service, being access and use of the shipping channels.”
“[156]…the Tribunal considers this to amount to ‘letting the tail wag the dog’. It is of little significance who is liable to pay, for instance, the Wharfage Charge. That is merely the product of the terms of the PMAA and the pricing schedule issued by PNO from time to time. The Wharfage Charge relates to different services and facilities, and reflects the level of facilities and services provided at a particular berth – such as berthing boxes, site offices, wharf sheets, pavements and worker amenities. On their own, the requirement to pay says nothing about whether or not the payee of a charge has access to and is the user of the Service. This must be determined in the context of … Part IIIA and the actual service declared thereunder. The only thing that matters in this respect is whether the use of certain infrastructure at the Port – whether it be the shipping channels, the berths, the wharves, or ‘sites’ within the meaning of the PMAA – equates to access and use of the Service.”
“On the grounds stated below and in the accompanying affidavit, the Applicant (Glencore) claims:
…
- Pursuant to s 44ZR(3) of CCA, an order affirming the ACCC’s Final Determination subject to the following variation regarding the scope of the determination – delete Clauses 2.1 and 2.2 and replace them as follows:
2.1 The scope of the determination includes the terms and conditions of access:
…
b. where Glencore makes a representation to PNO of the kind referred to in section 48(4)(b) of the Ports and Maritime Administration Act 1995 (the PMAA) that it has the functions of the owner of a vessel, or the owner of cargo consisting of coal, or accepts the obligation to exercise those functions, in order to enter the Port precinct and load Glencore Coal; and
…”.
(Emphasis supplied.)
It should be noted that it is not obvious that the relief sought in this originating process, filed in 2019, would be information known to a reasonable person in the shoes of a third party access-seeker at the time the Determination was made in 2022. In light of the argument Glencore was advancing, it is also far from obvious that this formulation of cl 2.1(b) was directed to the availability of the determined wharfage charge as payable independently of any liability to pay the navigation service charge. Instead, the purpose of the reference to a representation that Glencore “has the functions of … the owner of cargo consisting of coal” appears to have been to open the door to obtaining the benefit, for Glencore’s buyers under FOB sales contracts, of the determined navigation service charge.
Glencore’s submissions on this issue before the Full Court were as follows (at pars 21-22).
“21. PNO asserts that the [navigation service charge] relates to use of the shipping channels, not loading and unloading of coal. This overlooks the Wharfage Charge which is levied on Glencore as the owner of the coal it loads onto vessels, and which is within the scope of the determination. The Wharfage Charge can only be within the determination, as it is, if Glencore’s actions in loading coal fall within the definition of ‘the Service’. In PNO’s schedule of charges … PNO stated that the Wharfage Charge is levied on the cargo owner who loads cargo, per revenue tonne for coal, and is charged for the provision of service and facilities … . The provision of those services and facilities must fall within the definition of the Service. Consequently, Glencore is accessing the Service, and it is entitled to the determined wharfage and navigation charges. At the very least, that must be so whenever it is statutorily liable to pay those charges in accordance with s 48 and s 61 of the [PMA Act].
22. Further, the Tribunal cannot alter the services that attract the Wharfage Charge, or the circumstances in which Glencore becomes liable to pay the [navigation service charge], as they are governed by statute. To the extent that the Tribunal purported to determine that the Wharfage Charge only applied if Glencore actually owned or chartered the vessel, its determination was misconceived and legally wrong.”
Again, that is not material that would be available to a reasonable person in the shoes of a third party access-seeker at the time the Determination was made in 2022. And again, the submission appears to have been directed to obtaining the benefit of the determined navigation service charge, rather than the wharfage charge independently of the navigation service charge. Glencore’s argument was, in effect, that there was only one “Service”, and that access to one part of the Service (the wharves) entitled Glencore to the benefit of the determined charges for the whole Service: “Consequently, Glencore is accessing the Service, and it is entitled to the determined wharfage and navigation charges.”
On 24 August 2020, the Full Court made orders that the decision of the Tribunal made on 30 October 2019 be set aside. The Full Court remitted the matter to the Tribunal to be decided according to law: Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal at [323]. In its submissions in this Court, Glencore focussed on the following aspects of the Full Court’s reasoning.
Glencore submits that the Full Court identified difficulties in the premise that cl 2.1 governs the entire scope of the determination. But the Full Court did not do so in terms. Instead, Glencore seeks to draw that conclusion by referring to [149] of the Full Court’s judgment, where the Court considered the Tribunal’s acceptance of PNO’s submission, referred to above, that access to the Service was limited to the physical access to the channels:
“[149] This construction [i.e., of the Service] is not without difficulty. First, it focuses upon the physical control of the ship in the shipping channel as the access to the Service. It pays little regard to the economic access of use of the channels as a necessary part of the export of coal. Second, it is limited to the control of the ship. Thus the determination would be limited to circumstances where Glencore owns or demise charters vessels such that it has the possession of the ship and through its own crew controls the navigation of the ship to enter and leave the Port to carry its own coal. On this construction, Glencore would be able to benefit from a declared Service relevant to the dependent market of producing and exporting coal only if it entered the market or business of shipowning, including demise chartering of ships. It is to be recalled that this would not only deprive Glencore of the determination as to the [navigation service charge], but also the [wharfage charge]. On the other hand, if the Tribunal intended by the word ‘charter’ to include non-possessory charters such as time or voyage charters (a possibility inconsistent with the insistence on control of navigation), the confinement of the determination would be to limit its application to include CIF or similar sale, but to exclude FOB sale (though not, arguably, FOB with additional carriage service). In such circumstances, Glencore would be able to benefit from the declared service only if it entered the freight market, that is, the market for chartering vessels, especially by voyage charter. Once again, this applies to both the [navigation service charge] and the [wharfage charge].”
Rather than supporting Glencore’s construction of the text of cl 2.1, this reasoning appears, if anything, to assume that cl 2.1 does govern the entire scope of the determination.
The Full Court rejected the Tribunal’s construction of the Service (and what it means to access the Service) at [152]-[153], in a passage on which Glencore relies:
“[152] However, in the light of the view that the correct focus of the terms of the Service was the physical access to and use of the shipping channels, the Tribunal saw the words ‘by virtue of which’ as central. At [151] of its reasons the Tribunal said:
[T]he crux of debate between PNO and Glencore as to the scope of the Service lies in the meaning given to the connecting phrase ‘by virtue of which’. In the Tribunal’s view, this connecting phrase describes the function of the shipping channels (as was contended by PNO), not the purpose of the Service (as was contended by Glencore). When one, as an exercise in interpretive analysis, substitutes ‘by virtue of which’ with other synonymous connecting phrases in the context of the description of the Service, such as ‘as a result of which’ or ‘through which’ or ‘by reason of which’, the language that follows (‘vessels may enter the Port precinct and load and unload at relevant terminals…’) strikes the reader as secondary to the primary thrust of the description of the Service, being access and use of the shipping channels. On our view, it describes the function of such access and use of the shipping channels. Glencore’s construction requires a reading which substitutes ‘by virtue of which’ with ‘in order for’ and replaces the modal verb ‘may’ with the preposition ‘to’. The effect of Glencore’s construction is to qualify access and use of the shipping channels by reference to the apparent purpose of such access and use, being to load and unload at relevant terminals. In this sense, Glencore calls for a construction whereby the words which follow ‘by virtue of which’ work to expand the meaning of the words which precede it. We do not consider this to be the correct manner in which to interpret the Service from a textual perspective, and favour PNO’s construction as a result.
[153] With respect, we cannot agree. We do not see anything secondary about the words ‘may enter a Port precinct and load and unload’. The language used to describe the Service includes the berths or the shipping channels: the Service encompasses the availability of the site (being the area of water and the wharf and the strata of air and water set out in s 59(2) of the PMA Act that may be the subject of the [wharfage charge] under that legislation). The Service is not confined to entry and exit from the Port. It expressly includes the right to access and use ‘berths next to the wharves as part of the channels’ by virtue of which vessels may load and unload at relevant terminals and then depart. So, both the Service as described and the matters which give rise to the liability to pay the [wharfage charge] encompass activities being undertaken at the berths.”
(Emphasis in original.)
The issue to which the Full Court’s reasoning was directed at this point was the construction of the Service. Merely to acknowledge that access to the “berths next to the wharves” is part of “the Service as described” says nothing about the proper construction of cl 2.1 — in particular, whether the determination permitted Glencore to have the benefit of the determined wharfage charge without also being liable to pay the navigation service charge.
Glencore then refers to the Full Court’s rejection at [157] of the reasoning at [156] of the Tribunal’s reasons, quoted above.
“[157] For the reasons we have given, we respectfully do not consider that the argument of Glencore there identified is ‘the tail wagging the dog’. Glencore pays for and seeks access to the site. This is shown by the fact that the [wharfage charge] is covered by the Tribunal’s determination. Part of the [maximum allowable revenue] is allocated to the [wharfage charge]. Glencore is physically accessing or using the berth by the use of the immediately adjacent wharf and water below adjacent to the revetments, in loading the ship at the berth. The [wharfage charge] is a product of the PMA Act, but it is regulated by the determination and that is so because it concerns the access and use of ‘berths next to wharves as part of the channels’. In our respectful view, that part of the Service is accessed or used by Glencore, both physically and economically, whenever Glencore is selling and loading coal. So, the Service is accessed or used.”
Glencore submits that at this point, the Full Court adopted Glencore’s submissions at par 21, quoted above. In particular, it says that at [157] the Full Court accepted that the determination regulated the wharfage charge independently of any relationship the access seeker has with the vessel.
The Full Court did not go so far. The proposition that the wharfage charge “is regulated by the determination … because it concerns the access and use of ‘berths next to wharves as part of the channels’” is very different from saying that the Determination permitted, or should permit, Glencore to have the benefit of the determined wharfage charge independently of any liability to pay the navigation service charge. The context is significant here. Glencore’s submission, to which the Full Court was responding, had been directed to a different point. Glencore was attempting to bring the navigation service charge within the determination (for the benefit of its buyers when selling FOB), notwithstanding that Glencore was physically using only that part of the Service constituted by the berths adjacent to the wharves. That was why Glencore’s submission to the Full Court had said at par 21: “Consequently, Glencore is accessing the Service, and it is entitled to the determined wharfage and navigation charges.” That was far from a submission that the determination permitted, or should permit, Glencore to have the benefit of the wharfage charge independently of any liability to pay the navigation service charge. That being so, the Full Court’s [157] should be seen as directed to whether “the Service” (i.e., the whole Service) was accessed when “part of the Service is accessed or used by Glencore” to sell and load its coal. Paragraph 157 was not directed to the construction of the text of cl 2.1.
Glencore also referred to [160]-[162] of the Full Court’s reasons, which it said deal with what it called the “indivisibility argument” and the “economic interest argument”.
“[160] In either case, Glencore itself was the acquirer of the Service and could apply the terms as determined to all instances where ships carrying coal from its mine were using the Port. On the first approach, the Service was being used by Glencore at least to the extent of loading from the wharves. On the second approach, Glencore was a party with an economic interest in acquiring the Service for the benefit of the party in control of the ship. In either case, the terms in which the Service was described in the declaration were not a barrier to Glencore securing a determination of a kind that would require PNO to provide the Service to Glencore. The only issue concerned the precise terms upon which the Service might be declared. As that ‘matter relating to access’ by Glencore was not addressed by the Tribunal the matter should be referred back to the Tribunal for further determination of that aspect.
[161] This raises the issue of the place of other parties, such as the shipowner who may be subject to the [navigation service charge] under the PMA Act and not have the benefit of the determination, a subject in respect of which the Tribunal made reference in [153] of its reasons … .
[162] If, as we consider to be the case, Glencore is accessing and using the Service and shipping channels, the determination through a bilateral arbitration can, under s 44V(2), set the terms of access as between Glencore and PNO such that another person who may have a right of access to the shipping channels to carry Glencore’s coal and who may be subject to the [navigation service charge], can, through Glencore be given the ability or option of taking up Glencore’s arbitrated price.”
Glencore acknowledges that this was “the bit that's peeled back by the High Court”: Tcpt, 20 November 2026, 14.20. It nevertheless submits that the premise of what it calls the Full Court’s “springboard” reasoning is a “given”, namely, “that you get the wharfage charge, because you're using the service by doing the matters that give rise to the payment of the wharfage charge”: Tcpt, 14.33-39. Thus Glencore submits: “Whatever else the Tribunal may have done with the scope, it would have been required, at a minimum, to include the wharfage charge whenever Glencore loaded coal at a berth” (emphasis supplied). Glencore’s argument appears to be that it was a premise of the Full Court’s reasoning that on the remitter the Tribunal would be bound to determine that whenever Glencore loaded coal at a berth it was entitled to access the determined wharfage charge without also being liable for the navigation service charge; and that the Determination should be construed accordingly. That submission should not be accepted.
The issue the Full Court addressed in these passages was the position of Glencore’s buyers under FOB contracts: whether “the determination through a bilateral arbitration can, under s 44V(2), set the terms of access as between Glencore and PNO such that another person who may have a right of access to the shipping channels to carry Glencore’s coal and who may be subject to the [navigation service charge], can, through Glencore be given the ability or option of taking up Glencore’s arbitrated price”. The Full Court answered that question affirmatively: Glencore could arbitrate the price to be paid by third party charterers for use of the shipping channels because Glencore was using “the Service” in two different ways. First, because Glencore was physically “loading from the wharves”. Secondly, because it had an “economic interest in acquiring the Service for the benefit of the party in control of the ship”. That reasoning is the opposite of what Glencore now asserts: that it can access the determined wharfage charge without also being liable to pay the navigation service charge.
More generally, however, the process of reasoning Glencore invokes is simply unavailable to establish the context in which the ultimate Determination is to be construed. That process involves reading the Full Court’s reasons for judgment in light of particular submissions made to it, when that material was not incorporated by reference in the Determination or the Tribunal’s reasons. A reasonable person in the shoes of a third party access-seeker at the time the Determination was made in 2022 could not be expected to have recourse to such material to interpret the Determination in that way.
The Full Court remitted the dispute to the Tribunal for further determination. Glencore’s orders initially proposed to the Tribunal included the following.
“The ACCC’s Final Determination made under section 44V of the Competition and Consumer Act 2010 (Cth) dated 18 September 2018 be varied by deleting Clauses 2.1 and 2.2 and replacing them as follows:
2.1 The scope of the determination includes the terms and conditions of access for a vessel or cargo (as applicable):
…
(b) where Glencore makes a representation to PNO of the kind referred to in section 48(4)(b) of the Ports and Maritime Administration Act 1995 (NSW) that:
(i) for the purposes of the Navigation Service Charge, it has the functions of the owner of the vessel, or accepts the obligation to exercise those functions, to enter the Port precinct and load Glencore Coal; and
(ii) for the purposes of the Wharfage Charge, it has the functions of the owner of cargo consisting of Glencore Coal, or accepts the obligation to exercise those functions.
…”
PNO sought special leave to appeal to the High Court. The Tribunal formed the view that the remitter should not be listed for hearing pending the application for special leave: Application by Port of Newcastle Operations Pty Ltd (No 2) [2020] ACompT 3 at [5].
Glencore submitted in this Court that in PNO’s Notice of Appeal to the High Court, filed on 26 March 2021, it attacked the two bases (those flowing from the “indivisibility argument” and the “economic interest argument”) of the Full Court’s decision.
Ground 2, which Glencore submitted referred to the “economic interest” basis, was:
“The Full Court erred in concluding that a person who has merely an economic interest in the terms to be imposed by a determination under Part IIIA of the Competition and Consumer Act 2010 (Cth) (CCA), or has merely caused a person to access a declared service, is a ‘third party’ within the meaning of s 44B or can arbitrate the terms and conditions of another party who is physically accessing the service.”
“The Full Court erred in concluding that a person who has access to one aspect of a declared service can arbitrate the terms and conditions applicable to somebody who has access to a different aspect of the declared service.”
“The wharfage charge received very little attention in the arbitration before the Commission because it is a modest charge that was not the subject of any dispute. The only disputed charge was the [navigation service charge]. The only role of the wharfage charge in the arbitration was as a balancing item: the total amount charged by reference to the [Depreciated Optimised Replacement Cost] valuation was divided between the [navigation service charge] and the wharfage charge, so that the total of the undisputed wharfage charges had a role in the calculation of the disputed [navigation service charge]. … It is not entirely clear if the activity for which the wharfage charge was levied (the availability of the site) involved the use of the declared service, being the provision of the right to access and use the shipping channels (including berths next to the wharves), ‘by virtue of which vessels may enter the Port precinct and load and unload at relevant terminals… and then depart the Port precinct’. Even if it did, it is clear that it was not a charge for use of that part of the Service involving the navigation of the shipping channels and for which the [navigation service charge] was levied.”
Two points should be noted. First, a reasonable person in the shoes of a third party access-seeker at the time the Determination was made in 2022 would not be expected to be aware of that submission; still less of what might be implied from it. Secondly, it does not follow from the proposition that Glencore was accessing the Service when it sold and loaded coal at the port that, as a matter of construction, the Determination permitted Glencore to have the benefit of the determined wharfage charge without being liable to pay the navigation service charge.
The High Court delivered judgment in the matter on 8 December 2021. The version of the judgment reported as Port of Newcastle Operations Pty Limited v Glencore Coal Assets Australia (2021) 274 CLR 565; [2021] HCA 39 records at 568-569 the following submission made by Senior Counsel for PNO.
“The Full Court also held that Glencore was entitled to seek arbitration of the navigation service charge in respect of FOB contract sales, on the basis that it accessed part of the declared service, namely the part for which it paid the wharfage charge. The wharfage charge was not the subject of any dispute. Glencore could have arbitrated a dispute about the wharfage charge, but cannot rely on its use of the service for which that charge is levied as a basis for arbitrating someone else’s access to the shipping channels for which the navigation service charge is levied.”
Glencore submitted in this Court that this submission reflected the “premise” from which PNO’s argument proceeded with respect to the “indivisibility” basis of the Full Court’s decision. That is, Glencore appears to read the words, “Glencore could have arbitrated a dispute about the wharfage charge,” as implicitly meaning, independently of any dispute about the navigation service charge. Assuming in Glencore’s favour that that theoretical proposition was a “premise” of PNO’s argument (as opposed to a point PNO raised in order to put it to one side), the proposition says nothing about the proper construction of a determination given in the context of the very different arbitrated dispute that was in fact before the Court. The parties’ actual dispute was wholly focussed on the navigation service charge. On Glencore’s expansive approach to the available extrinsic material, PNO’s submissions were made in the context of those recorded above: that the wharfage charge was “a modest charge that was not the subject of any dispute”. Its “only role … in the arbitration was as a balancing item”, where “the total of the undisputed wharfage charges had a role in the calculation of the disputed” navigation service charge.
In light of that context, whatever else was meant by the submission, “Glencore could have arbitrated a dispute about the wharfage charge,” it should not be understood as accepting that whenever Glencore used the wharves, it was entitled to the benefit of the determined wharfage charge (that had been agreed in the course of a dispute about the navigation service charge), independently of any liability to pay the determined navigation service charge.
The conclusions Glencore seeks to draw are:
that it follows from the fact that the “premise” was accepted that the High Court’s decision was limited to a consideration of when Glencore would get access to the determined navigation service charge; and
that the High Court’s consideration of cl 2.1 indicates that the clause only concerns the navigation service charge, not the wharfage charge.
Those submissions should not be accepted. For the reasons just given, the supposed “premise” of PNO’s submission to the High Court on which Glencore relies should be rejected. Instead, the point of PNO’s submission was that, even assuming that Glencore was accessing part of the declared Service when it used the wharves (for which it was liable to pay the wharfage charge), Glencore could not rely on its use of that part of the Service “as a basis for arbitrating someone else’s access to the shipping channels for which the navigation service charge is levied”. That was the live issue in the High Court. The fact that there was no live issue in the High Court as to the wharfage charge is not a basis on which to construe cl 2.1 as defining only the scope of the navigation service charge, as opposed to the scope of the determination as a whole.
“[56] The Wharfage Charge was uncontroversial at the time of the Tribunal Decision and remains uncontroversial. The Wharfage Charge was the subject of agreement between Glencore and PNO reached in the course of the arbitration and was not in dispute in the re-arbitration before the Tribunal.
[57] The Navigation Service Charge was controversial at the time of the Tribunal Decision in two respects. The first concerned the range of circumstances in which the Navigation Service Charge was to be payable by Glencore to PNO. The second concerned the calculation of the amount of the Navigation Service Charge.
Scope of the Navigation Service Charge
[58] In the final determination reviewed by the Tribunal, the ACCC had determined that the navigation service charge was to be payable by Glencore to PNO in either of two circumstances. One was where Glencore, either directly or by an agent, chartered a ship to enter the Port and load its coal. The other was where Glencore brought itself within the extended meaning of ‘owner’ in s 48(4)(b) of the PMA Act by representing to PNO that it had the functions of the owner, or accepted the obligation to exercise those functions, in order for a ship to enter the Port and load its coal.
[59] In the Final Determination, the Tribunal confined the scope of the Navigation Service Charge to the circumstance where Glencore owns or, either directly or by an agent, charters a ship to enter the Port and load its coal. The Final Determination thereby extended the Navigation Service Charge to circumstances where Glencore sold its coal CIF but excluded the Navigation Service Charge from circumstances where Glencore sold its coal FOB.”
For the reasons given above, the fact that the navigation service charge was in dispute while the wharfage charge was not does not answer the question of construction of the Determination now before the Court.
Glencore also relied on [107]-[108] and [110]-[111], later quoted by the Tribunal on remitter in the passage set out above. In particular, Glencore focussed on the words in [111], “The Tribunal on remitter must therefore be confined to determining the circumstances in which the Navigation Service Charge will be payable by Glencore to PNO.” However, as explained above, the crucial issue — on which Glencore lost in the High Court — was whether, where Glencore sells FOB, a s 44V determination could “govern[] the circumstances in which PNO would seek and accept payment of the Navigation Service Charge from a person other than Glencore in respect of the particular use of the shipping channels by a particular ship carrying coal sold by Glencore”: see at [108]. That was the point [111] was making: the Tribunal was “confined to determining the circumstances in which the Navigation Service Charge will be payable by Glencore”, not by its FOB buyers.
To confine the Tribunal’s task on the remitter to that issue said nothing about the proper construction of the Determination with respect to the circumstances in which Glencore could have the benefit of the determined wharfage charge. The wharfage charge, and the circumstances in which Glencore could have the benefit of it, were not in issue.
It is to be remembered that cl 2.1 is expressed in terms of “[t]he scope of the determination”. Nothing in [111] or elsewhere in Glencore HC requires that cl 2.1 be construed as addressing only the circumstances in which Glencore could have the benefit of the determined navigation service charge, as opposed to the scope of the Determination as a whole.
Much of the extrinsic material upon which Glencore seeks to rely as context for the interpretation of the Determination is not available to be used for that purpose in the way Glencore submits.
But even if such material could be used to construe the 2022 Determination, the construction would be no different from that arrived at after considering the Determination itself and the Tribunal’s Reasons for the Determination. The history of the dispute leading to the Determination does not suggest that it should be construed so as to permit Glencore to have the benefit of the determined wharfage charge without also being liable to pay the determined navigation service charge.
One further matter that received some attention at the hearing of the appeal warrants separate consideration.
The ACCC’s 2018 reasons set out the access pricing methodology for the determination (including as ultimately varied by the Tribunal in 2022). The ACCC noted that the parties had agreed to use a building block model (BBM) for calculating the access charges, which the ACCC adopted (cl 4 of the Determination).
In this case, the BBM was used to determine the MAR that PNO was able to recover for the Service from a combination of the navigation service charge and the wharfage charge. Importantly, the parties agreed the initial level of the wharfage charge and its pricing review mechanism, but did not agree either the initial level or elements of the pricing review mechanism for the navigation service charge.
“The parties have agreed on the initial level of the Wharfage Charge of $0.0746 per revenue tonne as at 1 January 2018. …
PNO advises that the Wharfage charge as defined in the [PMA Act] includes some services that fall outside the Service. For example, while the services provided at the leased wharves, including the coal loading terminals berths, are all within the Service, the services provided at common user wharves includes additional services that are not within the Service. PNO notes that, for this reason, the Wharfage Charge is higher at common user wharves.
The parties have therefore further agreed that, for the purposes of the arbitration BBM while an allocation of the Wharfage Charge at the common user berths is attributed to the Service, the amount of the Wharfage Charge at the leased berths is used.
The Commission adopts the initial Wharfage Charge for the purposes of this arbitration on the basis that it is agreed by the parties. The Commission considers that the price proposed by the parties reflects the parties’ assessment of the efficient costs of providing access to this aspect of the Service (sections 44X(1)(h) and 44ZZCA(a)(i)). The Commission further notes that as the Wharfage Charge levied by PNO includes services that fall[] outside the Service, for the purposes of the model, PNO proposes to levy the amount of the Wharfage Charge at the lower amount used for leased berths in order to reflect the direct costs of providing access to the Service (section 44X(1)(d)).”
(Footnotes omitted.)
By contrast, the parties did not agree on the initial navigation service charge, in part because of disagreements on issues relevant to the valuation of PNO’s assets and the BBM. (The BBM methodology, and the parties’ disagreements about its implementation, are summarised in Glencore HC at [61]-[66].) The ACCC set the initial navigation service charge at $0.6075 per gross register tonne.
As was noted above, the annual and five-yearly regimes for adjusting the navigation service charge in cll 7 and 8 used the BBM, including revision of a number of significant inputs, such as the regulated asset base. In this Court, Glencore submitted that the BBM adopted certain assumptions which were likely to be contrary to fact; for example, that all users of the wharves were paying the determined wharfage charge. It is nevertheless clear that the object of the regime for adjusting the navigation service charge was to attempt to determine the efficient cost of providing the Service.
“… The Service … constituted two components: the berths at which coal was loaded and for which a wharfage charge was then imposed, and the shipping channels for which a navigation service charge was imposed. The methodology that the parties and Commission used to calculate what navigation service charge would allow for the recovery of the ‘efficient costs’ of providing access to that part of the Service was, in simple terms, to take all of the relevant costs involved with providing the whole Service, calculated using the BBM, and to deduct therefrom the efficient costs of providing access to the berths as reflected in the fixed wharfage charge. This left only an amount that represented the efficient costs associated with providing access to the shipping channels …”.
(Written submissions in reply at par 28; emphasis supplied.)
In light of that relationship, it is significant that the parties agreed that the wharfage charge would be a fixed cost, indexed to the Sydney CPI, whereas the MAR was variable: it was “all of the relevant costs involved with providing the whole Service, calculated using the BBM”. Over time, indexing the wharfage charge by reference to consumer inflation would not be likely to reflect the efficient cost of providing “that part of the Service” constituted by the berths. But that would not matter to the parties, so long as Glencore was liable to pay both the determined wharfage charge and the determined navigation service charge. In that situation, what would matter was the total: the variable MAR. Since the navigation service charge was calculated by deducting the fixed wharfage charge from the MAR, if the wharfage charge was fixed at a higher level, the navigation service charge would be calculated at a correspondingly lower level, and vice versa. The level of the wharfage charge would make no difference to the total MAR.
By contrast, on the assumption that Glencore was liable to pay only the determined wharfage charge — the premise of the present appeal — the parties would be sensitive to the level of the wharfage charge. In particular, in the context of a s 44V determination, the parties would be concerned about the closeness over time of the relationship between the level of the wharfage charge and the efficient cost of providing that part of the Service constituted by the berths. Whatever might have been the basis on which the parties had agreed the initial level of the wharfage charge, it would be surprising if that relationship could be maintained over time merely by indexation to consumer inflation.
Put another way, if, as Glencore submits, it would have been open to it to arbitrate the wharfage charge alone, independently of any liability to pay the navigation service charge, it seems improbable that, had it done so, the parties would have agreed, or that the ACCC or the Tribunal would have adopted, the approach taken to determining and adjusting the level of the wharfage charge in the Determination.
That implies that the economics of the Determination assume that Glencore would be liable to pay both charges, rather than only the determined wharfage charge.
Glencore submitted at the hearing of the appeal that under the BBM:
“… the navigation service charge doesn't depend on an assumption that Glencore [pays] the wharfage charge. It depends on an assumption that everyone pays a wharfage charge at the same rate. That's untrue. But you can't use any of this, you can't use the whole role of the MAR to found a submission that Glencore has to be paying both charges. …”
Tcpt, 20 August 2025, 32.29-33
The issue is not whether the calculation of the navigation service charge depends on an assumption that Glencore would be liable to pay the determined wharfage charge. The issue is whether the fact that the parties were prepared to agree (1) the wharfage charge and (2) that it be indexed to consumer inflation, notwithstanding that over time the resulting wharfage charge might not reflect the efficient cost of providing the Service, might be explained by an assumption that Glencore would be liable to pay both the wharfage charge and the determined navigation service charge.
In the result, although the weight to be given to an implication drawn from the relationship between the MAR, the wharfage charge and the navigation service charge should not be overstated, that relationship tends to support the construction the primary judge gave to the Determination.
In light of the analysis above, none of the grounds of appeal is made out.
Grounds 1 and 4 refer to the proper construction of the Determination. They are two sides of the same coin. Both grounds fail for the same reason: on the proper construction of the Determination, Glencore may have the benefit of the determined wharfage charge only if it meets the conditions of cl 2.1 and is liable to pay the navigation service charge.
Ground 3 specifically raises, as relevant context for the interpretation of cl 2.1, the reasons of the Full Court, the High Court and the Tribunal on remittal. The Ground does not refer in terms to submissions made to either Court or to the Tribunal, although Glencore’s argument, as developed, turned in significant respects on those submissions. For the reasons given above, much of the material is not to be taken into account as context when interpreting the Determination in the way Glencore submits. But even if that material were taken into account, the result would be the same. Clause 2.1 specifies the circumstances in which Glencore may have the benefit of the wharfage charge under the Determination.
Ground 2 refers to the scope of the dispute that was ultimately resolved by the Determination. It is a stepping stone on the way to the overall construction asserted in Grounds 1 and 4. To the extent that Glencore’s argument in support of this Ground requires recourse to the submission material in the Full Court, the High Court and the Tribunal on remittal, it should be rejected for the reasons given above. In any event, the conclusion — that the dispute resolved by the Determination “also included the terms of access to the wharfage charge in and of itself” — is not made out.
No ground of appeal is made out.
The appeal should be dismissed with costs.
**********
Glencore Coal Assets Australia Pty Ltd
Port of Newcastle Operations Pty Ltd
[2021] HCA 39
(2016) 309 FLR 358
(1997) 187 CLR 384
(2020) 268 CLR 638
(2020) 280 FCR 194
(2014) 89 NSWLR 633
(2021) 274 CLR 565
(2025) 117 NSWLR 49
(2007) 233 CLR 528
(2019) 267 CLR 514
Appeal dismissed with costs. No ground of appeal was made out ([180]–[185]).
The remitter ordered by the Full Court was not listed for hearing before the Tribunal, pending an appeal PNO brought from the orders of the Full Court to the High Court. The High Court gave judgment in 2021: Glencore HC, discussed above. The Court held that some aspects of the Full Court’s reasoning involved error, but that the Full Court had nevertheless been correct in ordering that the Tribunal’s decision be set aside. For reasons that will require some explanation, the only variation that the High Court made to the orders of the Full Court which remitted the matter to the Tribunal was to add a direction that “[t]he determination according to law by the Tribunal on remitter … be confined to redetermining the scope of the Navigation Service Charge”: at [125].
The Tribunal then took up the remitter and made the final Determination in 2022. That is the subject of the present appeal. Clauses 5.1 and 6.1 respectively again set the wharfage charge and the navigation service charge “payable by Glencore to PNO in accordance with this determination”. The form of cl 2 (as to the scope of the determination) is the same as that in the ACCC’s original 2018 determination.
As the primary judge pointed out at J[42], at least since 2018, PNO has not charged Glencore the navigation service charge (whether at the rate determined in the Determination or at any non-determined rate) in respect of the vessels carrying its coal. Glencore has not owned or chartered the vessels or otherwise fallen within the definition of “owner” in s 48 of the PMA Act so as to become liable to pay the navigation service charge pursuant to s 50 of the PMA Act.
However, as the owners of the coal immediately before it was loaded onto vessels at the port, the Glencore companies were liable pursuant to s 61 of the PMA Act to pay the wharfage charge. Until December 2024, Glencore did not seek to rely on the wharfage charge set in the Determination. Instead, the Glencore companies paid the wharfage charge at PNO’s fixed rate.
The present dispute arises out of a written notice which Glencore gave PNO in December 2024. The notice identified ten Glencore-related companies exporting coal through the port, which were the owners of the coal immediately before it was loaded onto vessels. By the notice, Glencore represented for the purposes of s 48(4)(b) of the PMA Act that it had the functions of the owner of that coal and accepted the obligation to exercise those functions, including the obligation to pay the applicable wharfage charges. Glencore stated that on and from 1 January 2025 it intended to use the Service the subject of the Wharfage Charge (as defined in the Determination) with respect to that coal under the terms of the Determination. For the avoidance of doubt, Glencore clarified that it was not giving notice of intention to use the Service the subject of the navigation service charge under the terms of the Determination.
That notice was given in circumstances in which the rate fixed by PNO for the non-determined wharfage charge had increased some 443.3% between 2018 and 2025, compared with only a 24.27% increase in the Consumer Price Index for Sydney during the same period. On and from 9 January 2025, the non-determined wharfage charge for those berths at which coal was loaded was $0.4053 per revenue tonne of cargo (excluding GST). Under the Determination, the applicable wharfage charge as at 1 January 2025 was set at the much lower rate of $0.0927 per revenue tonne of cargo. The issue on the appeal is whether Glencore can take the benefit of the determined wharfage charge in circumstances in which it is not liable for the navigation service charge.
Reading the Determination as a whole, nothing in the text gives any express indication that Glencore may obtain the benefit of one of the determined charges without also being liable to pay the other.
To the contrary, the Background recites the definition of the Service, which refers to access and use of “the shipping channels (including berths next to wharves as part of the channels)”. The Background does not refer to “access by Glencore to any part of the Service”. Instead, the Background describes the Determination as being “on access by Glencore to the Service” — implicitly, the whole of it, including the shipping channels. Use of the shipping channels would expose Glencore to liability to pay the navigation service charge.
Similarly, each of subcll 2.1(a) and (b) refers to conditions (chartering a vessel and making a s 48(4)(b) representation) which would make Glencore liable to pay the navigation service charge pursuant to s 50(4) of the PMA Act. But each of those paragraphs also ends with the words “… and load Glencore coal”. The loading of Glencore coal would make Glencore liable, as the owner of the coal immediately before it was loaded, to pay the wharfage charge pursuant to s 61(3)(b) of the PMA Act. It follows that the Determination does not contemplate that Glencore might be liable to pay the determined navigation service charge without also being liable to pay the wharfage charge. It would be anomalous if Glencore could be liable to pay the determined wharfage charge without also being liable to pay the navigation service charge.
Consistently with that reading, cl 2.2(c), which “For the avoidance of doubt” makes clear that certain matters are outside the scope of the Determination, refers to charges “other than the Navigation Service Charge and the Wharfage Charge”. It does not say “the Navigation Service Charge or the Wharfage Charge”.
Clause 1.2 refers to a period of backdating. It says “The Navigation Service Charge and Wharfage Charge apply from the period starting 8 July 2016 …”. It does not say “The Navigation Service Charge or Wharfage Charge as applicable apply from” that date.
As to the backdating itself, the wharfage charge is expressed in cl 5.1 as a dollar rate “per revenue tonne as at 1 January 2018”. But the charges are to be backdated to 8 July 2016 (cl 1.2), by a process of deflation using the Sydney CPI (cl 1.3). That process would appear to require, in relation to the wharfage charge, information about the number of revenue tonnes of coal of each cargo and its date.
Clause 3.2 provides for a mechanism by which Glencore is to provide information to PNO “For the purpose of the backdating under clause 1.2” — that is, for the purpose of backdating both the navigation service charge and the wharfage charge. Yet the cl 3.2 information is to be provided by reference to those vessels which satisfied the scope conditions in cl 2.1; that is, vessels in respect of which Glencore would be liable to pay the navigation service charge.
Thus, by cl 3.2(a), Glencore must “identify to PNO each vessel falling within the scope of clause 2.1 for the period 8 July 2016 to the date of this determination”.
By cl 3.2(b), Glencore is to provide certain alternative categories of information to PNO “for each such vessel”; that is, for each vessel falling within the scope of cl 2.1.
Glencore submits that cl 3.2 is concerned only with backdating the navigation service charge, not the wharfage charge. That submission should not be accepted.
It is true that, as Glencore submitted, the regulations referred to in subcl (b)(iii) are expressly directed to the particulars of vessels in respect of which a navigation service charge is payable.
But subcl (b)(ii) refers to “completed manifests required to be lodged under Regulation 17 of the Ports and Maritime Administration Regulation 2012 or Regulation 12 of the Ports and Maritime Administration Regulation 2021 (as the case may be) and clause 12.2 of the PNO’s Vessel Standard Terms and Conditions”.
Glencore submitted that those manifests were required to include information which would be relevant to the navigation service charge, namely, the identity of the consignor of the goods. That would establish that the vessel was carrying “Glencore coal”, as referred to in cl 2.1.
A significant problem with that argument is that subcll (b)(i), (ii) and (iii) are alternatives. But none of reg 17, reg 12, or cl 12.2 of the standard terms, involves giving particulars of the crucial issue for the purposes of calculating the navigation service charge: the gross tonnage of the vessel. It is thus difficult to see how the backdating of the navigation service charge could be carried out only by reference to the information referred to in subcl (b)(ii).
On the other hand, the information referred to in subcl (b)(ii) is plainly relevant to the wharfage charge. The two identified regulations are expressly directed to vessels in relation to which “a wharfage charge or port cargo access charge is payable”. Each regulation requires a manifest of the cargo to be given to the port authority, including the mass and volume of the goods: the crucial metric for calculating the wharfage charge. Clause 12.2 of the standard terms also requires a manifest of the cargo, to be provided in an approved form.
It follows that while the Determination provides for both the backdating of the wharfage charge and a mechanism by which to do so, it only contemplates that occurring in relation to cargoes carried on vessels meeting the conditions in cl 2.1: see subcl 3.2(a) and the opening words of subcl 3.2(b). For the reasons explained above, Glencore would be liable to pay the navigation service charge with respect to every such vessel. The Determination thus does not appear to contemplate the backdating of the wharfage charge without Glencore also being liable to pay the navigation service charge with respect to the same export of coal.
Glencore relies on cl 10, which provides for separate invoicing with respect to the wharfage charge and the navigation service charge, as indicating that the two charges are independent of each other. The difficulty with this argument is that cl 11 provides for all amounts due to be payable within 7 days of delivery by email of a tax invoice. But under cl 10, the events triggering PNO’s entitlement to issue an invoice (and which thus start the clock running) differ, with respect to the one export of coal, as between the wharfage charge (“receipt from Glencore of the applicable cargo manifest”: cl 10.1) and the navigation service charge (“the vessel entering the Port”: cl 10.2). The fact that the time for payment is calculated by reference to the date the invoice is issued explains the provision for separate invoices for the two kinds of charges.
In the result, nothing in the text of the Determination expressly provides, or even suggests, that Glencore may have the benefit of the determined wharfage charge without also being liable to pay the determined navigation service charge. To the contrary, cl 2.1 describes the scope of the Determination in a way which limits it to situations in which Glencore is liable to pay the determined navigation service charge.
But to recognise that language is inherently contextual is not to deny that there may be limits to the material which may be taken into account when construing a given category of legal text. Such limits may result from common law rules of construction or be explicitly imposed by statute. They may be driven by considerations of policy or pragmatic concerns. The scope of the extrinsic material that may be taken into account may also be affected by the nature and purpose of the text itself — two matters which are themselves part of its context. The present is such a case.
Here, the legal text is a s 44V determination. The nature and purpose of a s 44V determination are to be discerned in the statutory framework in which it is made.
As to the nature of the Determination, it is true that, as the Tribunal pointed out at [15] of its Reasons for Determination:
Glencore’s argument treats the propositions (1) that it accessed the Service when it physically accessed a site for stevedoring operations, and (2) that it therefore would have been entitled to arbitrate (at least) the wharfage charge, as necessarily entailing a third proposition: that the Determination as actually made regulates the wharfage charge independently of the navigation service charge, such that Glencore may pay the former without being liable to pay the latter. The third proposition is a non-sequitur, and a surprising one. The Determination was made in the course of litigation directed to the very different questions identified above, and the amount of the wharfage charge was agreed in the context of that dispute. The third proposition is not stated in the Determination, nor in any reasons given by any of the Tribunal, the Full Court or the High Court.
Glencore relied on the following passages of the High Court’s decision which concern the Tribunal’s earlier decision (at [56]-[59]).