Fortescue wins High Court decision in long running Pilbara rail access dispute

On Friday the High Court handed down its decision in relation to the long running access dispute between Fortescue Metals and BHP Billiton and Rio Tinto over access to BHP Billiton’s and Rio Tinto’s iron ore railways in the Pilbara. DLA Piper acted for Fortescue in the proceedings.

The High Court allowed Fortescue’s appeal in all three of the matters before it. By majority decision the High Court quashed the determinations of the Australian Competition Tribunal (Tribunal) and remitted the matters to the Tribunal to be decided according to law. Justice Heydon, who dissented in part, would have declared the services provided by BHP Billiton’s and Rio Tinto’s iron ore railways in the Pilbara without remittal to the Tribunal.

With only one exception, Fortescue was successful on all the grounds it argued. In particular, the court was emphatic in its view that the Tribunal had misapprehended its task in reviewing the Minister’s decision to declare or not declare infrastructure services under the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010. In addition the court significantly pared back the ability of the Tribunal to look at extraneous matters under the guise of (what Rio Tinto and BHP Billiton unsuccessfully argued was) a wide public interest test and discretion…

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