Glencore Coal Assets Australia Pty Ltd v Port of Newcastle Operations Pty Ltd (No 2)

1. [1]

   Glencore Australia Pty Ltd has disputed invoices issued to it by Port of Newcastle Operations Pty Ltd (PNO) when selling its coal through the Port of Newcastle. Since January 2025, Glencore has sought to take advantage of a wharfage charge price determined on 5 April 2022 by the Australian Competition Tribunal (Determination). PNO claimed that price is not available to Glencore under the Determination, and it must instead pay PNO’s invoiced standard rates, which are higher.

2. [2]

   The primary issue is the proper construction of the Determination, considered in the context of the legislative framework that governs the operation and use of the Port, and the long history of the parties’ dispute. For the reasons that follow I prefer PNO’s construction.

3. [3]

   A complete version of the Determination is included as an annexure to these reasons.

Background

1. [4]

   Glencore is a wholly owned subsidiary of Glencore plc, one of the world’s largest natural resource companies. Together with other Glencore companies, it owns, manages, or has a joint venture interest in, coal mines throughout the Hunter Valley in New South Wales. The Glencore companies sell coal to customers for export through the port. Typically, they are free on board (FOB) sales; Glencore sends the coal by rail to the port and loads it onto a vessel organised by the buyer for export. Usually, a buyer’s vessel enters the port empty and sails up the shipping channels and berths at a terminal. Then the coal is loaded and the vessel sails out.

2. [5]

   Until about May 2014, the port was owned and operated by a state-owned entity. Then the port was privatised and PNO now leases the port and is the “port operator” within the meaning of the Ports and Maritime Administration Act 1995 (NSW) (the PMAA). Its functions include managing the leased areas of the port, and maintenance of port assets. A separate state-owned entity, the Port Authority of NSW, undertakes port safety functions.

3. [6]

   Under the PMAA, PNO may impose various charges on users for different services at the port, including pilotage charges, port cargo access charges, site occupation charges, berthing charges, and port infrastructure charges. There was no evidence about whether Glencore has ever been liable for those charges through its use of the port.

4. [7]

   In addition, PNO imposes two other charges during the process for Glencore to export coal from the port relevant to this dispute:

   1. (1)

      A “navigation service charge” (NSC), which is charged on each entry into the port to the “owner” of a vessel, by reference to the gross tonnage of the vessel, pursuant to s 51 PMAA.

   2. (2)

      A “wharfage charge” (WC), which is charged per tonne of cargo to the “owner” of the cargo immediately before it is loaded onto a vessel, pursuant to s 62 PMAA.

5. [8]

   The “owner” of a vessel or cargo in both sections is defined in section 48, which provides:

6. [9]

   PNO usually fixes its charges annually and publishes them on its website, together with its standard terms and conditions.

7. [10]

   However, PNO can also make agreements with persons liable to pay the charges under s 67(1) PMAA. Further, charges may be determined under Part IIIA, Division 3 of the Competition and Consumer Act 2010 (Cth) (CCA). Such a determination operates like an agreement: Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565 at 583 (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ) (Glencore – High Court).

8. [11]

   Under the CCA a “service” may be declared by the designated Minister where access to a service promotes a material increase in competition in a market, other than the market for the service, and where it would be uneconomical for anyone to develop another facility to provide the service, and where the facility is of national significance: s 44CA(1) CCA.

9. [12]

   In 2015, Glencore’s parent company obtained a declaration that PNO provided a “Service” at the port within the meaning of the CCA:

10. [13]

    In November 2016, Glencore notified the Australian Competition and Consumer Commission (the Commission) of an access dispute concerning the Service under s 44S CCA:

11. [14]

    Glencore sought:

12. [15]

    The Commission’s determination could deal with “any matter relating to access by the third party to the service, including matters that were not the basis for notification of the dispute”: s 44V(2) CCA. Therefore, it may have been possible to have any PNO charges determined, as far as they “related” to access to the declared service.

13. [16]

    The parties were in dispute about appropriate terms for access to the Service and in particular the NSC, but also the “terms of access” or scope of the determination, namely when Glencore could take advantage of the NSC, as determined. Glencore submitted there should be a very wide scope, so that the determination would extend to “vessels carrying coal that [had] not been chartered by Glencore or in respect of which Glencore [had] not made a representation of the kind referred to in [s] 48(4)(b) of the PMAA”, including the NSC and WC (and other charges). PNO’s submission was that the scope ought to be limited to Glencore’s own access to the Service, that is, through owning a vessel and owning the coal loaded.

14. [17]

    In 2017, the declaration of the Service was revoked, but that did not affect the determination of Glencore’s dispute notified before the revocation.

15. [18]

    On 18 September 2018, the Commission gave its Determination and 200 pages of reasons. Of significance, the Commission identified the scope of the Determination:

16. [19]

    In identifying that scope, the Commission explained:

17. [20]

    The Commission preferred PNO’s submission that the scope ought to be limited to Glencore’s own access to the Service. In doing so, the Commission explained:

18. [21]

    The Commission determined initial prices of the NSC and WC, but no other charges, using a building block model (BBM), discussed further below. Price adjustment mechanisms were also included.

19. [22]

    The Commission’s reasons included:

20. [23]

    In contrast, the Commission gave 140 pages of reasons for its determination of the dispute about the initial level of the NSC, which it set, as at 1 January 2018, at $0.6075 per gross tonne.

21. [24]

    On application by a party, a determination may be subject to review by the Australian Competition Tribunal under s 44ZP CCA. The Tribunal’s review is a re-arbitration of the dispute: s 44ZP(3) CCA. The Tribunal has the power to either affirm or vary the determination, which would then take effect as a determination by the Commission: s 44ZP(7) CCA.

22. [25]

    In October 2018, both PNO and Glencore filed applications for review of the Determination. Both applications concerned the scope of the Determination and the determined rate of the NSC.

23. [26]

    In October 2019, the Tribunal made a determination under s 44ZP(6) CCA, which varied the Determination, including confining its scope 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”. Before the Tribunal, the Commission had submitted:

24. [27]

    In November 2019, Glencore appealed the Tribunal’s determinations to the Full Federal Court pursuant to s 44ZR CCA, in relation to the amount of the NSC, the scope of the Determination and the extent to which Glencore was a party seeking access to the declared Service. At the same time, the Commission also applied to the Full Federal Court to review the determination of the Tribunal in relation to the amount of the NSC.

25. [28]

    On 24 August 2020, the Full Federal Court delivered a 323-paragraph judgment: Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal (2020) 280 FCR 194 (Glencore – Federal Court). Allsop CJ, Beach and Colvin JJ allowed Glencore’s application, but dismissed the Commission’s. The Federal Court remitted the matter to the Tribunal for further determination according to law.

26. [29]

    The Federal Court found that the Tribunal had erred in considering that “access to the Service was limited to the physical access to the channels, that is the navigation of the channels by ships, and that the person seeking such access is the person “controlling or in charge of a vessel”: at 226.

27. [30]

    It considered that the Tribunal had erroneously determined that the use of the Service was “limited to the control of the ship”. At 226, it explained that on that erroneous view:

28. [31]

    The Federal Court set out the Tribunal’s reasons, with which it disagreed at 228-9:

29. [32]

    The Full Federal Court rejected a “narrow interpretation of the Service … being the physical access to the shipping channels by the party who controls the navigation of the ship”: at 231. Instead, Glencore was using that part of the Service covered by the WC, and therefore was using the “indivisible” Service, including circumstances where it would be liable for the NSC.

30. [33]

    The Full Federal Court did not expressly determine that Glencore could only access the determined WC if it accessed the NSC in the circumstances determined within scope. Glencore submitted that was nevertheless the effect of the judgment, particularly at 229, [157], which was not challenged on appeal:

31. [34]

    The Federal Court determined another matter, irrelevant to the current dispute, namely that the Tribunal erred in determining “an appropriate level of efficient costs” in setting the NSC.

32. [35]

    The remittal hearing in the Tribunal was delayed pending PNO’s appeal to the High Court, which was heard in September 2021.

33. [36]

    In December 2021, the High Court delivered its 125-paragraph judgment: Glencore – High Court.

34. [37]

    The Court concluded that the Full Federal Court had erred in altering the Tribunal’s determination of the NSC. However, it concluded at 604:

35. [38]

    The Court noted at 591 the Full Federal Court’s construction of the Service:

36. [39]

    The Court then concluded at 600:

37. [40]

    On 5 April 2022, the Tribunal varied the Determination by way of mark-up to the Commission’s 2018 determination (Application by Port of Newcastle Operations Pty Ltd (No 3) [2022] ACompT 2).

38. [41]

    However, the Tribunal determined not to alter the Commission’s original Determination’s expression of “scope” at clause 2. In its reasons at [26], the Tribunal explained that it considered that the Determination concerning its scope “is consistent with the High Court’s ruling” for reasons at [24]-[25]:

The dispute

1. [42]

   PNO has never charged Glencore the NSC (at least since 2018) at any rate, because Glencore has not owned or chartered the vessels or otherwise fallen within the definition of “owner”. Glencore has paid the WC in the past at PNO’s fixed rate, not having sought to rely on the determined WC.

2. [43]

   However, on 16 December 2024, Glencore gave written notice to PNO identifying ten related companies exporting coal through the port, which were the owners of that coal immediately before it was loaded onto vessels at the port (see s 61(3)(b) PMAA). That notice included:

3. [44]

   In response, PNO rejected Glencore’s entitlement to:

   1. (1)

      selectively access the determined WC without also paying the determined NSC; or

   2. (2)

      obtain the benefit of the determined WC for other entities by purporting to make a representation under s 48(4)(b) PMAA, because that was not expressly provided for in the Determination.

4. [45]

   During 2025, PNO has issued to Glencore invoices for the WC at its fixed rates, which are higher than the determined WC. Glencore has disputed those invoices and only paid them to the value of the determined WC. PNO claimed in its cross-claim the sum of $3,018,486.85 (as at 24 April 2025), together with interest of $65,838.95. The parties agreed that they would confer on any amounts due following judgment.

5. [46]

   As noted above, the primary issue is the proper construction of the Determination. More particularly, the parties agreed that the issues to be determined were:

   1. (1)

      Is Glencore entitled to the WC rates contained in the Determination in circumstances where, within the meaning of s 48 of the PMAA:

   2. (2)

      Does the Determination mean that either party is estopped from advancing their position in these proceedings?

   3. (3)

      Must Glencore pay any further money under the PNO invoices, and if so, what interest rate applies?

6. [47]

   For the reasons that follow:

   1. (1)

      Glencore is not entitled to access the determined WC, without also being liable for the NSC in accordance with clause 2.1.

   2. (2)

      Glencore is entitled to obtain the benefit of the determined WC where it has made a representation under s 48(4)(b) PMAA (and is also liable for the NSC).

   3. (3)

      No estoppel operates to prevent Glencore seeking the construction that it does.

   4. (4)

      While Glencore must pay PNO the full amount of the invoiced WC, PNO is not entitled to interest, because it has not proved the applicable interest rate and therefore the quantum of the interest.

Principles of construction

1. [48]

   I substantially adopt the parties’ helpful submissions about the role of the Court in construing a determination of the Tribunal.

2. [49]

   The Court may reach its own view as to the meaning of a determination, even if that view departs from those contended for by the parties: see Australian Communication Exchange Ltd v Deputy Federal Commissioner of Taxation (2003) 77 ALJR 1806 at 1808 (Gleeson CJ) and 1815 (Kirby J).

3. [50]

   There is little authority on the principles applicable to construing a determination by the Commission under s 44V of the CCA. The Determination itself is the result of what the statute describes as an “arbitration” process: see s 44U and Subdivision D of Division 3 of Part IIIA CCA. It is also to be accompanied by reasons: s 44V(5). Therefore, it is analogous to an arbitral award and I consider it appropriate to apply the accepted principles of construction that apply to arbitral awards.

4. [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. That approach is generally consonant with the principles governing the interpretation of industrial awards, which, as Moore and Marshall JJ observed in Toyota Motor Corp Australia Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (1999) 93 IR 95 at 103, are often the product of arbitration rather than private agreement.

5. [52]

   In Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 246, Gleeson CJ and McHugh J noted that the interpretation of an industrial award turns on “the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation”. At 270-1 and 282-3, Kirby J and Callinan J respectively approved the observations of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184 that:

   1. (1)

      The Court should avoid adopting a narrow or pedantic approach to the interpretation of the award: see also Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 499 at 503-4 (Street J);

   2. (2)

      An industrial award is to be interpreted in line with the “context of the relevant industry and industrial relations environment [rather] than with legal niceties or jargon”: see also City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57] (French J);

   3. (3)

      However, notwithstanding the impetus for a broad, contextual, interpretation of an industrial award, the Court’s focus is on the words used in the award and, at least in the absence of ambiguity, effectuating their plain and ordinary meaning: see also Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Works [2012] FCA 1010 at [50] (Cowdroy J).

6. [53]

   A similar approach is called for when the Court is called upon to construe the reasons of an administrative tribunal, which are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ).

7. [54]

   I have interpreted the Determination in light of these authorities.

Can Glencore use the determined WC without taking the determined NSC?

1. [55]

   The key issue is the proper construction of clause 2 of the Determination, which is reproduced at [19]. The other clauses may be briefly summarised as follows.

2. [56]

   Clause 3.1 of the Determination required Glencore to provide 48 hours’ prior written notice of its intention to use the Service under the terms of the Determination, failing which “standard terms of access” would apply.

3. [57]

   Clauses 4 to 9 of the Determination set out the price terms that would apply to Glencore’s use of the Service. Clause 5.1 specified a WC amount per revenue tonne as at 1 January 2018, which, by reason of clause 5.2, was to be indexed annually by reference to Consumer Price Index (CPI). Clause 6.1 set out the amount of the NSC as at 1 January 2018, which, by reason of clause 6.2, was to be reviewed annually in accordance with clause 7 and reviewed every five years in accordance with clause 8.

4. [58]

   Clauses 10 to 15 of the Determination set out the non-price terms that would apply to Glencore’s use of the Service.

5. [59]

   There are several reasons to prefer PNO’s construction of clause 2.

6. [60]

   Clause 2 is located at the beginning of the Determination and concerns the “scope of the determination”, namely the whole of it. It states that the scope “includes” terms and conditions of access to the Service. I do not accept that the word “includes” means that there were other additional terms and conditions, beyond the clauses in the Determination. Instead, the word “includes” should be read as a synonym of “consists of”, such that that clause indicates that the Determination consists of access terms and conditions for Glencore.

7. [61]

   Clause 2.1(a) and (b) specified, by the use of “where”, the two situations, in which the Determination would operate for Glencore’s benefit. Further, clause 2.2 expressed the situations not covered by the Determination. Clause 2 did not carve out situations where the WC would operate that were different to those in clause 2.1. Clause 2.2(c) made it apparent that the Determination applied to the NSC and the WC, and not to other charges, but did not indicate they could be separately accessed by Glencore. Clause 1.2 also referenced the NSC and WC.

8. [62]

   Further, pursuant to clause 3.1, Glencore is required to provide PNO notice of its intention to “use the Service under the terms of this determination”. Those terms include the “scope” requirements in clause 2.1 and the Service is indivisible.

9. [63]

   At no time before the Determination had Glencore ever been involved in the transport of any coal on vessels; its business was in selling coal to customers, who would control the transport, and would be liable for the NSC at PNO’s scheduled rates (or privately agreed rates). Therefore, previously Glencore (or related entities) had always paid PNO’s scheduled WC rates.

10. [64]

    There is no dispute that the Service has been determined to involve various parts: use of the berths and use of the channels, each attracting a different charge. However, that Service is “indivisible” and access to part of the Service entitles access to the whole: Glencore – Federal Court at 229.

11. [65]

    Glencore was seeking to have a determination of the WC and also the NSC, of which it could take advantage, in effect to assist its customers and therefore itself. That was the “scope” that was in dispute. That was confirmed clearly by the High Court at [111], indicating that the Tribunal would be limited on remitter to determining the scope of the determined NSC. However, the scope of the dispute was not the scope of the Determination, which also determined the WC.

12. [66]

    It had been open to Glencore to seek an agreement with PNO about the WC: s 67 PMAA. However, Glencore raised a dispute about the terms of access to the Service, which included both the NSC and WC. The agreed value of the WC featured in the way the Commission set the NSC. The fact that both the WC and NSC were determined by the Commission in one arbitration about access to the Service, tells against the charges being applicable separately.

13. [67]

    As noted, the parties had agreed that the initial WC represented the “parties’ assessment of the efficient costs of providing access to this aspect of the Service”. In setting the determined WC, the Commission adopted the parties’ agreement. However, as the parties had not agreed on the initial price for the NSC.

14. [68]

    In determining the charges, s 44X CCA required the Commission to take into account the “pricing principles” set out in s 44ZCA CCA, which include:

15. [69]

    The Commission used the BBM, which was a “widely-recognised and relatively standard pricing model”. The BBM is used for determining the MAR (maximum allowable revenue) that PNO “is able to recover from the Navigation Service Charge and Wharfage Charge for the declared service”, having “regard to the efficient costs of providing the Service (including an appropriate return on capital)”. The Commission then derived the charges from the MAR using volume forecasts.

16. [70]

    The WC was an input in the BBM, forming part of the recoverable MAR as one stream of revenue available to PNO. The other stream used in the BBM was the NSC. The other charges that PNO levies for users of the port were not included in determining the MAR. Accordingly, in using the BBM to ascertain the MAR, the amount that could then efficiently be imposed for an NSC took into account the amount that was likely to be received by PNO through the WC.

17. [71]

    This created a complexity because the WC was received through the loading of cargo at a number of different berths, not all of which were berths that fell wholly within the scope of the Service. As explained in a briefing note of the BBM, which was accepted by the Commission as accurately recording the agreed position of the parties, the services relevant to the berths used by Glencore and other coal vessels were “all within the Declared Service”, but there were additional services provided at other non-coal berths that were not within the Service, and for which a higher WC is applied. To allow for the WCs received from those berths to be counted as part of calculating the MAR for the Service, the parties agreed to allocate the same WC to all berths at the agreed rate of $0.0746 per revenue tonne.

18. [72]

    The amount of the NSC, as noted, turned on the resolution of a number of different disputes as to matters that affected the inputs of the BBM. As part of the analysis, the Commission was required to engage in a detailed analysis of an evaluation of assets required to provide the Service (using a Depreciated Optimised Replacement Cost methodology). As the Commission’s reasons make apparent, the largest part of the assets being considered were the various channels at the port. The parties made detailed submissions on the valuation of the channels as assets and the costs of their upkeep, in particular, issues of necessary dredging. How those matters were valued necessarily impacted on how the initial NSC would be set.

19. [73]

    Further, because the costs of assets relevant to the channels, and therefore the NSC, and their maintenance, could be very costly and involved risk, the Commission considered that the mechanism for increasing the NSC ought to operate annually and focus on “actual volumes”: clause 9, Commission’s reasons at [31]. The same was not true of the WC, which was agreed to increase by CPI: clause 5.2.

20. [74]

    As PNO submitted in these proceedings:

21. [75]

    PNO further submitted in an explanatory note to the Commission that “[t]he [WC] remains constant in real terms; and [t]he [NSC] is increased so that total forecast revenue equals the MAR”.

22. [76]

    The Commission expressly determined at clause 4 that the “inputs to the building block model and the charges are reviewable” in accordance with clauses 5 to 9. Most BBM “inputs” referred to in clauses 5 to 9 were those relevant to the NSC: clauses 7.2, 8.2. However, WC was also an input and was “reviewable” by reference to CPI: clause 5.2. The specific reference to both WC and NSC being part of the “inputs” for BBM supports the conclusion that the determination contemplates the WC and NSC being paid in relation to one export of Glencore’s coal; without the input of the WC, the calculation of the MAR could not have been determined for the provision of the Service.

23. [77]

    In this context, for completeness, I consider the admissibility of PNO’s expert report of Mr Greg Houston, an economist with experience in the economic analysis of markets. I do not consider the report is admissible for the following reasons:

    1. (1)

       As Williams J noted, the proceedings have not involved the proper construction of the CCA, or terms of access or pricing: [2025] NSWSC 167 at [34].

    2. (2)

       No order was sought nor obtained for any expert evidence to be used in the proceeding.

    3. (3)

       The issue of the proper construction of the Determination is one to be assessed by reference to the text itself in the context of the legislative and historical background, having regard to the material before the Commission. The report is not relevant to resolve that issue.

24. [78]

    I consider that the invoicing clause 10 is neutral in the construction exercise. The WC and the NSC were triggered in relation to different events and were calculated in different ways, which may explain the inclusion of two clauses dealing with the invoicing of each. I accept that, had the Commission required a single invoice for the WC and NSC after Glencore had used both parts of the Service, that would have been an indicator that Glencore had to access the WC and NSC together. However, I do not consider the use of separate clauses demonstrates that it was intended Glencore could access the determined charge for one part of the Service and not the other. Glencore (or a related company) was a coal seller and had always paid the WC; the contested issue was how Glencore could access a determined rate of the NSC when it was paying the WC, which it also sought to be determined.

25. [79]

    I accept PNO’s submission that the specified scope indicates that Glencore had to access the whole Service and pay the NSC with the WC, because of the reference to “where Glencore… charters a vessel to enter the Port precinct and load Glencore coal” (emphasis added). The use of “and load Glencore coal” made it clear that both activities had to occur.

26. [80]

    The sentence explains the purpose of the charter, which was to both enter the Port and load Glencore coal. Read naturally, the sentence envisaged that Glencore would charter a vessel and therefore be liable for the NSC and would also incur the WC through the loading of coal: cf Glencore – Federal Court at 226-7. That construction is consistent with the other constructional indicia.

27. [81]

    As noted above, in December 2024 Glencore issued a notice to PNO, stating that it was making a representation under s 48(4)(b) PMAA that it would be liable for the determined WC for the other companies’ coal.

28. [82]

    PNO submitted that course was not available to Glencore, because it was not specified in the Determination.

29. [83]

    While “Glencore” is defined in the Determination as the plaintiff, there is no definition of “Glencore coal”. I do not consider the Determination was intended to apply only to situations were Glencore personally owned coal, rather than including any situation where s 48(4)(b) PMAA applied because of an appropriate representation by Glencore. The Determination must be read in the context of the PMAA.

30. [84]

    The purpose of clause 2 was to limit the scope of the Determination by reference to the availability of the determined NSC; it was not found to reach as far as Glencore had hoped. However, there was no specific argument before any decision maker that Glencore could or could not take advantage of the determined WC, if it could make itself legally liable for the WC under the PMAA. I consider Glencore could take advantage of the determined WC if it was the owner of coal as defined by s48 PMAA, if it otherwise fell within the scope of the Determination concerning the NSC.

Estoppel?

1. [85]

   There may be some room for an Anshun or issue estoppel to bar a litigant from contending for a construction of a statute not otherwise advanced in collateral proceedings: see eg Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council [2007] QCA 326 at [80] (Cullinane J) and [104] (Wilson J).

2. [86]

   However, I reject PNO’s submission that Glencore was estopped from arguing that the proper construction of the Determination entitles it to access the determined WC without the NSC, in circumstances where its submission to the Federal Court was accepted that it was accessing the Service by using the wharves and paying the WC.

3. [87]

   Glencore was entitled to run the litigation before the Commission, Tribunal and Courts as it saw fit. That resulted in a Determination that binds the parties. The question now is what that Determination means, as a matter of construction.

4. [88]

   I do not accept PNO’s suggestion that an issue or Anshun estoppel bars Glencore from contending that it may access the WC without the NSC, in circumstances where that question of construction could logically only arise once the Tribunal has settled its determination.

5. [89]

   I also do not accept that Glencore is prevented from making the submissions it does now because it failed to positively submit to the Commission that the determination ought make plain that it entitled Glencore to either or both of the WC and NSC.

6. [90]

   For the same reasons, I would not accept that PNO is estopped from making submissions on the proper construction of the Determination either.

Amount and interest payable

1. [91]

   As PNO has succeeded on the question of construction of the Determination, it follows that Glencore is liable for the shortfall in any unpaid invoices. The parties will be directed to confer on the appropriate sum payable.

2. [92]

   It is also necessary to determine whether PNO is entitled to interest on those unpaid amounts.

3. [93]

   Section 70(1) PMAA confers on PNO a discretion to determine the rate of, and charge, interest on the various charges. Section 70(3) PMAA provides that, unless dealt with otherwise in the Ports and Maritime Regulation 2021 (NSW), that rate “is not to exceed 5 per cent per annum above the interest rate that in the ordinary course of business would be charged by the Commonwealth Bank for the relevant period on unsecured overdrafts of more than $100,000”. There is no relevant regulation.

4. [94]

   PNO used the formulation adopted by s 70(3) PMAA in its annual Schedules of Service Charges as well as in clause 25.1 of the third version of PNO’s “Vessel Standard Terms and Conditions” as the definition of “Default Rate”, for the purposes of clause 6.3, which provided:

5. [95]

   As at 23 April 2025, PNO asserted an entitlement to $65,838.95 by way of interest on the outstanding WC. In support of its claim for interest, PNO relied on an extract of an article published on the Commonwealth Bank of Australia’s website, obtained using the digital archive, the “Wayback Machine”, dated 12 January 2025, which listed the bank’s “Overdraft Index Rate” at 11.93% per annum. That index rate was decreased, on PNO’s evidence, to 11.68% per annum on 28 February 2025, and again to 11.43% per annum on 20 May 2025. On the premise that the Overdraft Index Rate was the appropriate interest rate that would ordinarily be charged by the bank on unsecured overdrafts over $100,000, PNO submitted that the relevant “Default Rate” fluctuated between 16.43% and 16.93% per annum.

6. [96]

   The extracts contain a variety of reference rates for the bank’s lending products, including a “Corporate Overdraft Reference Rate”, which stood at: 11.33% between 12 November 2023 and 27 February 2025; 11.08% between 28 February 2025 and 19 May 2025; and at 10.83% as from 20 May 2025. As with the Overdraft Index Rate, the web extracts warned potential customers that its rates were not universally applicable. For example, the article extract included:

7. [97]

   A further extract from the bank’s website obtained on 24 April 2025 specified that information about rates was:

8. [98]

   I accept Glencore’s submissions that the effect of the bank’s position that the rate of interest charged on overdrafts, whether secured or unsecured, depended upon the individual circumstances of the customer. The result was that the Court could not be satisfied that the Overdraft Index Rates adduced by PNO would have been imposed upon PNO, as contemplated by s 70(3) PMAA.

9. [99]

   The qualification of each of the bank’s rates upon the individual circumstances, and type, if any, of security proffered by a customer does not permit the Court to determine with any certainty what rate PNO would have been given, were it to have overdrawn its account of the type specified.

10. [100]

    The hypothetical posed by s 70(3) PMAA, as adopted by PNO, called for more compelling proof of whether and why either of the Overdraft Index Rate or the Corporate Overdraft Reference Rate would have been imposed at those rates. For the Court to be satisfied that a particular interest rate “would” be charged by the bank for an unsecured overdraft of more than $100,000, the Court would have to, at the very least, be apprised of the bank’s view on PNO’s individual circumstances, which would likely have been easy to do. In the absence of such proof, PNO has not established an entitlement to interest at the rates claimed.

11. [101]

    It was not suggested that it would be appropriate for the Court to supplement, or overlook, these deficiencies in PNO’s evidence by means of judicial notice. It may be accepted that, generally speaking, the Court may take judicial notice of “general economic trends, the effects of inflation, prevailing rates of interest and returns on investment”: Rendell v Paul (1979) 22 SASR 459 at 466 (King CJ, Walters and White JJ agreeing). The Court’s ability to do so, however, necessarily turns on any such rate of interest being the subject of general knowledge: see eg Saul v Menon [1980] 2 NSWLR 314 at 325 (Moffitt ACJ, Hope AP agreeing). That is not the case for the particular interest rates that might be imposed on a case-by-case basis by the bank: cf Asia Pacific International Pty Ltd v Dalrymple [2000] 2 Qd R 229 at 242 (Shepherdson J).

12. [102]

    It has not been suggested that PNO is entitled to interest at the rates contemplated by r 6.12(8) Uniform Civil Procedure Rules 2005 (NSW) or otherwise. Here, PNO holds a discretion as to whether to charge interest at all on outstanding charges, subject to the limit imposed by s 70(3) PMAA. It may choose not to do so. Given the deficiencies in its evidence, as identified above, I am not satisfied on balance that the extent of the “Default Rate” has been established.

Conclusion

1. [103]

   For the reasons above the appropriate orders are:

   1. (1)

      On or before 4pm on 23 July 2025, the cross-claimant serve on the cross-defendant short minutes of order intended to give effect to these reasons for judgment together with the orders they propose in relation to costs and any necessary explanation;

   2. (2)

      On or before 4pm on 28 July 2025, the cross-defendant: