Glencore Coal Assets Australia Pty Ltd v Port of Newcastle Operations Pty Ltd

1. [1]

   MITCHELMORE JA: I agree with McHugh JA.

2. [2]

   STERN JA: I agree with McHugh JA.

3. [3]

   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?

4. [4]

   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.

5. [5]

   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.

The parties and statutory context

1. [6]

   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.

2. [7]

   The port was privatised in May 2014 via a 98 year lease to PNO.

3. [8]

   PNO is the “port operator” within the meaning of s 3 of the Ports and Maritime Administration Act 1995 (NSW) (PMA Act). 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.

   1. (1)

      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.

   2. (2)

      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.

4. [9]

   “Owner” is defined in s 48 of the PMA Act as follows.

5. [10]

   Section 67 of the PMA Act provides as follows.

6. [11]

   The effect of s 67 is to grant to the relevant port authority (in this case, PNO) a power to enter an agreement with a person liable to pay a charge (for example, a charge fixed by ss 51(1) or 62(1)) with respect to, for example, the amount of that charge. As between the parties, as the primary judge found at J[10], a s 44V determination operates like an agreement for the purposes of this section.

7. [12]

   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.

8. [13]

   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.

9. [14]

   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].

10. [15]

    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.

11. [16]

    The first stage of the process is the declaration of a “service” provided by means of a facility: Div 2, Pt IIIA.

12. [17]

    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”.

13. [18]

    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.

14. [19]

    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).

15. [20]

    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).

16. [21]

    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.

17. [22]

    In circumstances explained in more detail below, in 2016 the Tribunal declared the Service in the following terms:

18. [23]

    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:

    1. (1)

       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

    2. (2)

       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.

19. [24]

    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.

20. [25]

    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.

21. [26]

    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.

22. [27]

    In 2019, the Tribunal varied the ACCC’s 2018 determination in a manner that will require some consideration below.

23. [28]

    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: Glencore Coal Assets Australia Pty Ltd v Australian Competition 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.

24. [29]

    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].

25. [30]

    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.

26. [31]

    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.

27. [32]

    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.

28. [33]

    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.

29. [34]

    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.

The Determination

1. [35]

   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.

2. [36]

   The Determination records its background as follows.

3. [37]

   Clauses 1.2 and 1.3 concern backdating the charges.

4. [38]

   Clause 2 reads as follows and is central to this appeal.

5. [39]

   Clause 3 of the Determination imposes an obligation on Glencore to notify PNO that it intends to use the Service.

6. [40]

   Clause 4 provides:

7. [41]

   (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.)

8. [42]

   Clauses 5 and 6 deal with the wharfage charge and navigation service charge.

9. [43]

   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.

10. [44]

    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.

11. [45]

    Finally, cl 10 concerns the invoicing process for the charges.

The grounds of appeal

1. [46]

   Glencore’s four grounds of appeal are in summary as follows.

   1. (1)

      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”.

   2. (2)

      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.”

   3. (3)

      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.”

   4. (4)

      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.”

2. [47]

   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.

Construction: the text of the Determination and the Tribunal’s Reasons

1. [48]

   Since it is not in dispute that construing the Determination begins and ends with its text, that is a convenient place to begin.

2. [49]

   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.

3. [50]

   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.

4. [51]

   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.

5. [52]

   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.

6. [53]

   Glencore’s submission should not be accepted. The word “includes” must be read in context and idiomatically.

   1. (1)

      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.

   2. (2)

      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”.

   3. (3)

      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.

   4. (4)

      Clause 5.1 refers to the “Wharfage Charge payable by Glencore to PNO in accordance with this determination”. But the only part of the Determination which identifies the conditions which must be satisfied in order for it to apply is cl 2.

7. [54]

   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.

8. [55]

   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.

9. [56]

   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.

10. [57]

    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”.

11. [58]

    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.

12. [59]

    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.

13. [60]

    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.

    1. (1)

       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”.

    2. (2)

       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.

14. [61]

    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.

    1. (1)

       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.

    2. (2)

       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”.

    3. (3)

       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.

    4. (4)

       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).

    5. (5)

       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.

15. [62]

    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.

16. [63]

    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.

17. [64]

    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.

18. [65]

    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.

19. [66]

    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].

20. [67]

    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.

21. [68]

    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.)

22. [69]

    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:

23. [70]

    The Tribunal noted that:

    1. (1)

       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

    2. (2)

       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.”

24. [71]

    The Tribunal then stated at [11]-[12]:

25. [72]

    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”.

26. [73]

    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.

27. [74]

    The Tribunal then considered the scope of its powers on the remitter, taking a broad view: at [13]-[21].

28. [75]

    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.

29. [76]

    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.

30. [77]

    The Tribunal made other amendments to the determination. These included with respect to cl 3.2. Glencore relies on [29], where the Tribunal said:

31. [78]

    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.

32. [79]

    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.

Approach to construction: the methodological dispute as to context

1. [80]

   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.

2. [81]

   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.

3. [82]

   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.

4. [83]

   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.

5. [84]

   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.

6. [85]

   The correct approach to the construction of a s 44V determination lies somewhere between the parties’ positions.

7. [86]

   The starting point is to recognise, as Leeming JA succinctly put it in Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 at [76], that “language is unavoidably contextual”. See, to similar effect, Rinehart v Hancock Prospecting Pty Ltd (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 …”: CIC Insurance Limited v Bankstown Football Club Limited (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”: Mainteck at [86] per Leeming JA, Ward and Emmett JJA agreeing.

8. [87]

   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.

9. [88]

   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.

10. [89]

    As to the nature of the Determination, it is true that, as the Tribunal pointed out at [15] of its Reasons for Determination:

11. [90]

    If a s 44V determination were to be viewed primarily as the product of a bilateral arbitral process, it might be appropriate to interpret the Determination in accordance with the principles applying to the interpretation of private arbitral awards generally. That might result in a somewhat expansive test of the contextual material available when construing the Determination, namely, whether the material, such as submissions, was known both to the parties and to the Tribunal. There are statements broadly consistent with that view in the authorities concerning the proper approach to construing arbitral awards. The primary judge referred to such cases at J[51], where her Honour said:

12. [91]

    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.

13. [92]

    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.”

14. [93]

    Section 44AA then provides for the more specific objects of Pt IIIA:

15. [94]

    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).

16. [95]

    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.

17. [96]

    Section 44ZNB provides:

18. [97]

    Section 44ZZL provides:

19. [98]

    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”.

20. [99]

    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.

21. [100]

    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:

22. [101]

    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.

23. [102]

    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.

24. [103]

    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.

25. [104]

    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]:

26. [105]

    (See also Deguisa v Lynn (2020) 268 CLR 638; [2020] HCA 39, especially at [66]-[71].)

27. [106]

    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.

28. [107]

    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.

29. [108]

    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.”

30. [109]

    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.

31. [110]

    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.

32. [111]

    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.

Glencore’s argument as to context: the procedural history

1. [112]

   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.

2. [113]

   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.

3. [114]

   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.

4. [115]

   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).

5. [116]

   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.

6. [117]

   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.

7. [118]

   On 13 May 2015, Glencore Coal Pty Ltd (Glencore Coal) applied pursuant to Pt IIIA of the CCA for a declaration that PNO provided a “service”, within the meaning of that Part. The Acting Federal Treasurer made a decision on 8 January 2016 not to declare the service under s 44H of the CCA. Pursuant to s 44K(2), Glencore Coal applied to the Tribunal for a review of that decision. On 16 June 2016, the Tribunal set aside the decision of the Minister and exercised its power in s 44K(8)(b) to declare the Service, commencing on 8 July 2016 and expiring on 7 July 2031 (Application by Glencore Coal Pty Ltd (No 2) [2016] ACompT 7; (2016) 309 FLR 358):

8. [119]

   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.

9. [120]

   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.

   1. (1)

      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:

   2. (2)

      On 20 July 2018, the ACCC issued a draft determination that included cl 2.1 in relevantly the same form as it appeared in the Determination. Glencore responded to the draft determination on 17 August 2018:

   3. (3)

      In its submissions in reply dated 3 September 2018, PNO disagreed with Glencore’s analysis of the draft determination and challenged the inclusion of cl 2.1(b):

10. [121]

    As noted above, the ACCC issued its initial determination along with its reasons on 18 September 2018. In its reasons the ACCC explained,

11. [122]

    Glencore submits that the ACCC thus resolved the question whether the scope was limited by whether the coal was Glencore’s or whether Glencore had chartered a ship by “adhering to the middle ground” that either a s 48(2)(b) representation or chartering a ship is sufficient to bring Glencore within the scope of the determination: Tcpt, 20 November 2026, 8.44-5 However, Glencore says that the ACCC did not resolve whether cl 2.1 covers the wharfage charge. That submission is difficult to reconcile with the ACCC’s statement in its reasons “that the following matters are within the scope of the arbitration”. That was clearly a statement identifying all the circumstances in which the determination applied. There was no suggestion that any matters other than those identified were within the scope of the arbitration. In particular, there was no suggestion that Glencore could have the benefit of the determined wharfage charge in circumstances where it neither chartered the vessel nor made a s 48(4)(b) representation that it had the functions of the owner of the vessel.

12. [123]

    In October 2018, both PNO and Glencore applied to the Tribunal for a review of the ACCC’s determination under s 44ZP of the CCA. In its application, PNO again contended that the scope of the determination should be limited to circumstances in which Glencore charters a vessel to enter the port and load Glencore coal. Glencore also maintained its position that the scope of the determination should include instances where a vessel carries Glencore coal, irrespective of whether Glencore has chartered the vessel or made a s 48(4)(b) representation. In this Court, Glencore emphasised the following paragraph of its submissions to the Tribunal dated 5 March 2019, which it submitted shows that Glencore had, at this stage, identified a problem with cl 2.1 of the ACCC’s 2018 determination. The problem was that cl 2.1 would be read as excluding the wharfage charge unless Glencore had chartered the vessel or made a s 48(4)(b) representation.

13. [124]

    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.

14. [125]

    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).

15. [126]

    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.”

16. [127]

    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.

    1. (1)

       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.

    2. (2)

       That argument was criticised by the ACCC before the Tribunal. However, Glencore submits that the ACCC did not understand the question whether the wharfage charge was within the scope of the Service to be part of the dispute that had been before it. As the Tribunal said at [145],

    3. (3)

       At [149], the Tribunal said:

    4. (4)

       Glencore acknowledges that PNO’s construction of the Service was accepted by the Tribunal at [151]:

    5. (5)

       Glencore also points to the way in which the Tribunal dealt with Glencore’s argument that its liability to pay various charges (including the wharfage charge) indicated that it was an access seeker, no matter the precise circumstances of who chartered the vessel upon which coal was loaded. The Tribunal said at [156]:

17. [128]

    Glencore appealed to the Full Court of the Federal Court (i.e., applied for review), seeking an order pursuant to s 44ZR of the CCA setting aside the Tribunal’s decision and, among other things, varying the scope of the determination. Glencore submitted in this Court that its argument in the Full Court had picked up the point regarding the alleged internal inconsistency of cl 2.1 that is referred to above. Glencore refers to its originating application before the Full Court, which it submits had sought to remedy this alleged defect.

18. [129]

    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.

19. [130]

    Glencore’s submissions on this issue before the Full Court were as follows (at pars 21-22).

20. [131]

    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.”

21. [132]

    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.

22. [133]

    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:

23. [134]

    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.

24. [135]

    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:

25. [136]

    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.

26. [137]

    Glencore then refers to the Full Court’s rejection at [157] of the reasoning at [156] of the Tribunal’s reasons, quoted above.

27. [138]

    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.

28. [139]

    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.

29. [140]

    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”.

30. [141]

    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.

31. [142]

    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.

32. [143]

    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.

33. [144]

    The Full Court remitted the dispute to the Tribunal for further determination. Glencore’s orders initially proposed to the Tribunal included the following.

34. [145]

    Those orders were never made.

Glencore HC

1. [146]

   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].

2. [147]

   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.

3. [148]

   Ground 2, which Glencore submitted referred to the “economic interest” basis, was:

4. [149]

   Ground 3, which Glencore submitted referred to the “indivisibility” basis of the Full Court’s decision, was:

5. [150]

   Glencore says that those grounds accepted as their premise the Full Court’s finding (at [153] and [157], quoted above) that Glencore was accessing the Service when it sold and loaded coal at the port. In support of that submission, Glencore referred to par 33 of PNO’s submissions to the High Court, which expanded on its Ground 2:

6. [151]

   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.

7. [152]

   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.

8. [153]

   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.

9. [154]

   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.

10. [155]

    The conclusions Glencore seeks to draw are:

    1. (1)

       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

    2. (2)

       that the High Court’s consideration of cl 2.1 indicates that the clause only concerns the navigation service charge, not the wharfage charge.

11. [156]

    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.

12. [157]

    Glencore relied on the following passages of the High Court’s decision which concern the Tribunal’s earlier decision (at [56]-[59]).

13. [158]

    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.

14. [159]

    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.

15. [160]

    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.

16. [161]

    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.

The remittal to the Tribunal

1. [162]

   The Tribunal’s reasons are addressed in detail above. However, it should be noted that the Tribunal did not make orders in the form of the amended cl 2.1 as initially proposed by Glencore when the Full Court remitted the matter (see [144] above). Instead, the Tribunal maintained the form of cl 2.1 as made by the ACCC. It did so in circumstances where Glencore did not oppose that form of order, and where the orders were made on the papers.

Conclusion as to contextual material

1. [163]

   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.

2. [164]

   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.

The MAR

1. [165]

   One further matter that received some attention at the hearing of the appeal warrants separate consideration.

2. [166]

   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).

3. [167]

   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.

4. [168]

   With respect to the initial wharfage charge, the ACCC said:

5. [169]

   The parties also agreed that the wharfage charge should be indexed annually by reference to the Consumer Price Index for Sydney. The BBM thus played no part in adjusting the wharfage charge. Instead, as will be seen, the wharfage charge was effectively an input into the BBM.

6. [170]

   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.

7. [171]

   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.

8. [172]

   Glencore explained the relationship among the wharfage charge, the MAR and the navigation service charge as follows:

9. [173]

   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.

10. [174]

    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.

11. [175]

    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.

12. [176]

    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.

13. [177]

    Glencore submitted at the hearing of the appeal that under the BBM:

14. [178]

    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.

15. [179]

    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.

The grounds of appeal

1. [180]

   In light of the analysis above, none of the grounds of appeal is made out.

2. [181]

   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.

3. [182]

   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.

4. [183]

   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.

Conclusion and orders

1. [184]

   No ground of appeal is made out.

2. [185]

   The appeal should be dismissed with costs.