The NSW Court of Appeal recently published judgment in Glencore Coal Assets Australia v Port of Newcastle Operations [2026] NSWCA 64, the latest decision in a long running dispute between the parties that had earlier been considered by the High Court of Australia.
The case concerned the applicable wharfage and navigation charges for Port users, which are determined by a statutory scheme which was the subject of an earlier determination by the Australian Competition Tribunal. Glencore contended that it had been overcharged $874,000.
Central to Glencore’s appeal was its reliance on an analysis of contextual material to construe the earlier Australian Competition Tribunal determinations.
The Court of Appeal dismissed the appeal. It held (McHugh JA at [111]), that: “matters known only to those directly involved in an ACCC arbitration or a Tribunal proceeding are not available for use in interpreting a … determination.”
Declan Roche SC and Anais d’Arville appeared for the Port of Newcastle.