High Court judgment determines access charges for Port of Newcastle

10 December 2021

In a High Court judgment this week the Port of Newcastle has achieved a significant outcome that will permit it to charge increased access fees for use of the Port's facilities.

The Port of Newcastle had leased the Newcastle port from the State of NSW. It services a large number of mining operations in the area and the Port of Newcastle controls the berths and shipping channels through which mining exports are moved. The Port of Newcastle charges access fees for these services, known as a navigation service charge. In its long running dispute with the Port of Newcastle, Glencore contended that the Port should have regard to $912 million in past port user contributions when setting navigation services charges. While the Full Federal Court sided with Glencore on this point, the High Court held that the "Full Court was wrong to discern legal error on the part of the [Australian Competition] Tribunal in relation to the amount of the navigation service charge."

The decision resolves 6 year's of litigation between the Port of Newcastle and Glencore, which originally commenced in the Australian Competition Tribunal.

Cameron Moore SC and Declan Roche appeared for the Port of Newcastle.

Link to judgment