This proceeding concerned a claim by the ACCC that provisions in Port Commitment Deeds entered into by the State of New South Wales and a consortium known as NSW Ports had the purpose and likely effect of substantially lessening competition in contravention of s 45 of the Competition and Consumer Act 2010 (Cth) (CCA). The ACCC sought relief only against NSW Ports.
The primary judge (Jagot J) found that NSW Ports was entitled to derivative Crown immunity, so s 45 of the CCA did not apply to it in making or giving effect to the impugned provisions, but in any event, the impugned provisions did not have the purpose or likely effect of substantially lessening competition.
An appeal to the Full Court was dismissed. A majority of the Full Court (Allsop CJ and Yates J) upheld the primary judge’s findings concerning derivative Crown immunity (Beach J dissented in respect of this issue), and all members of the Full Court upheld the primary judge’s findings concerning the purpose and likely effect of the impugned provisions.