The High Court has delivered its decision on Fortescue’s long running attempt to get access to two of Rio Tinto’s railway lines in the Pilbara under Part IIIA of the Trade Practices Act 1974 (as it was called when Fortescue first applied for access in 2007/08). The decision has mixed implications for infrastructure owners and access seekers.
The position of infrastructure owners has been strengthened by the High Court adopting a test which means that an access seeker cannot obtain third party access to a facility where it would be privately profitable for anyone to duplicate that facility.
On the other hand, access seekers had a win with the High Court rejecting the ability of the Minister or Tribunal to exercise a residual discretion to refuse third party access even when the access seeker satisfies all the mandatory criteria for declaration.
The High Court decision is not the final word in this matter. It has been remitted to the Tribunal for re-determination, with the Tribunal only entitled to consider material that was before the Minister when he made his decision back in 2008.
For a more detailed analysis of the decision, see KWM’s Alert.