Australian Competition Tribunal Decisions

AUSTRALIAN COMPETITION TRIBUNAL

Application by Fortescue Metals Group Limited [2006] ACompT 6

TRADE PRACTICES � review ofdecision ofdesignated Minister to not declare service � application for intervention � whether s 109(2) of the Trade Practices Act 1974 (Cth) applies � relevant test to be applied.

Trade Practices Act 1974 (Cth):� ss 44G, 44H, 44K, 44ZQ, 90A, 101, 109(2), 152CO

Acts Interpretation Act 1901 (Cth):� s 13

Trade Practices Regulations 1974:� reg 22B(2)

Re Freight Victoria Limited (2002) ATPR 41‑884, followed

Lakes R Us Pty Ltd [2006] A CompT 3, followed

Kioa v West (1985) 159 CLR 550, applied

Re Application by Wylie Steel Pty Ltd (1980) ATPR 40‑170, cited

Re Telstra Corporation Limited (2001) 160 FLR 120, followed

Re Application by Orica IC Assets Limited (2004) ATPR 41‑991, discussed

Re Application by PK Wakeman (1999) ATPR 41‑675, cited

Re Qantas Airways Limited (2003) ATPR 41‑972, discussed

Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203, cited

File No 5 of 2006

RE:�� APPLICATIONFORREVIEWOFTHE DEEMED DECISION BY THE COMMONWEALTH TREASURER OF 23 MAY 2006 UNDER SECTION 44H(9) OF THE TRADE PRACTICES ACT 1974 (CTH) IN RELATION TO THE APPLICATION FOR DECLARATION OF SERVICES PROVIDED BY THE MOUNT NEWMAN RAILWAY LINE

BY:�� FORTESCUE METALS GROUP LIMITED

Applicant

GOLDBERG J

7 SEPTEMBER 2006

MELBOURNE

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 5 of 2006

BY:�� FORTESCUE METALS GROUP LIMITED

Applicant

TRIBUNAL:	GOLDBERG J (President)
DATE OF DECISION:	7 SEPTEMBER 2006
WHERE MADE:	MELBOURNE

THE TRIBUNAL DETERMINES THAT:

1.�� Subject to the Tribunal�s power to direct the nature and extent of its participation in the proceeding and the review, Rio Tinto Limited be granted leave to intervene in the proceeding and participate in the review.

2.�� The application by Derek Noel Ammon for leave to intervene in the proceeding and participate in the review is refused with liberty reserved to him to renew his application as he may be advised.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

File No 5 of 2006

BY:�� FORTESCUE METALS GROUP LIMITED

Applicant

TRIBUNAL:	GOLDBERG J (President)
DATE:	7 SEPTEMBER 2006
PLACE:	MELBOURNE

REASONS FOR DETERMINATION

1 These reasons determine applications by Rio Tinto Limited and Mr Derek Noel Ammon for leave to intervene in the proceeding.� The applications are opposed by the applicant, Fortescue Metals Group Limited (�Fortescue�) and are not opposed by BHP Billiton Minerals Pty Ltd and BHP Billiton Iron Ore Pty Ltd (together, �BHP�) who is entitled, as the provider of the relevant service, to participate in the proceeding pursuant to reg 22B(2) of the Trade Practices Regulations 1974.

2 The proceeding is an application by Fortescue pursuant to s 44K(2) of the Trade Practices Act 1974 (Cth) (�the Act�) for the review of the deemed decision by the designated Minister, the Hon Peter Costello MP, Treasurer of the Commonwealth of Australia, under s 44H(9) of the Act not to declare the Mt Newman Rail Facility Service.� In its application for review, Fortescue describes the Mt Newman Rail Facility Service, to which it seeks access, as:

�(a)�� use of the facility being part of the Mt Newman railway line which runs from a rail siding that will be constructed near Mindy Mindy in the Pilbara to port facilities at Nelson Point in Port Hedland, and is approximately 295 kilometres long; and

(b) access to the facility�s associated infrastructure, including, but not limited to:

(i) railway track, associated track structures, over or under track structures, supports (including supports for equipment or items associated with the use of the railway);

(ii) bridges;

(iii) passing loops;

(iv) train control systems, signalling systems and communication systems;

(v) sidings and refuges to park rolling stock;

(vi) maintenance and protection systems; and

(vii) roads and other facilities which provide access to the railway line route.�

3 The Mt Newman railway line is owned by the Mt Newman Joint Venture Participants, comprising BHP Billiton Minerals Pty Ltd, Mitsui‑Itochu Iron Pty Ltd and Itochu Minerals and Energy of Australia Pty Ltd.� BHP Billiton Iron Ore Pty Ltd (�BHPBIO�) manages and operates the Mt Newman railway line on behalf of the Mt Newman Joint Venture Participants.� The Mt Newman railway line runs from Mt Newman in Western Australia to Port Hedland on the coast.

4 Fortescue is a joint venture participant with Consolidated Minerals Limited in Pilbara Iron Ore Joint Venture which holds tenements at Mindy Mindy in the Pilbara region in Western Australia.� Fortescue seeks access to the Mt Newman Rail Facility Service to transport ore from Mindy Mindy to port facilities at Port Hedland.

5 On 15 June 2004 Fortescue applied to the National Competition Council (�the Council�) for a recommendation under s 44G of the Act that the Mt Newman Rail Facility Service be declared.� On 23 March 2006 the Council issued its final recommendation that the Mt Newman Rail Facility Service be declared.� On 23 May 2006 the 60 day period within which the Treasurer can publish a decision under s 44H(7) of the Act expired.� Accordingly, the Treasurer was taken under s 44H(9) of the Act to have decided not to declare the service.

6 Rio Tinto Limited wishes to intervene in the proceeding in order to advance contentions on issues of principle relevant to the Tribunal�s application of the criteria set out in s 44K of the Act, and to tender expert evidence in support of those contentions.

7 Rio Tinto Limited (as part of the Rio Tinto Group) is a producer of iron ore in the Pilbara region.� The Rio Tinto Group (�Rio Tinto�) has a controlling interest in ten mining operations, two railways (the Hamersley railway and the Robe River railway) and port facilities at Dampier and Cape Lambert.� Rio Tinto is not a prospective seeker for access to the Mt Newman Rail Facility Service.� Rio Tinto was, however, a participant in all stages of the Council�s consideration of Fortescue�s application for declaration, as well as the consideration before the designated Minister.

8 In 2005 Rio Tinto exported 142.7 million tonnes of iron ore produced from its Pilbara mines, which represented approximately 60% of total iron ore exports from Australia.� This generated export revenue of the order of US$4.5 billion.� Each of the mines operated by Rio Tinto is serviced by a rail system that is privately owned by, and dedicated to, Rio Tinto�s operations.� The Rio Tinto rail system links the various Rio Tinto mines to Rio Tinto‑owned and operated port facilities at Parker Point and East Intercourse Island, at Dampier, and at Cape Lambert.� The facilities at each port are dedicated to the mines operated by Rio Tinto.� Rio Tinto does not have any interest in the Mt Newman railway line.� It is not a potential access seeker to the service which Fortescue seeks to have declared and the application for review is not concerned with access to any of Rio Tinto�s infrastructure.�

9 Mr Ammon�s interest in Fortescue�s application is that one of the tenements comprised in the Mindy Mindy project (E47/1140) is registered in his name.� He contends that this tenement is the �central� or �core� tenement in the Mindy Mindy project.� The other tenements in that project are in the name of Pilbara Iron Ore Pty Ltd and effectively surround E47/1140.� The shareholding in Pilbara Iron Ore Pty Ltd is held equally by Fortescue and Consolidated Minerals Limited.� According to Mr Ammon, the Mindy Mindy project commenced after he identified in 2001 the prospectivity of the area for pisolite iron ore and also haematite iron ore.� Mr Ammon concluded a joint venture agreement with Pilbara Iron Ore Pty Ltd in or about September 2002 which provided that Pilbara Iron Ore Pty Ltd could earn an 80% interest in the pisolite project.� Mr Ammon retained the haematite project for himself.� The joint venture agreement provided that Pilbara Iron Ore Pty Ltd was to be the manager of the pisolite joint venture.� According to Mr Ammon, Pilbara Iron Ore Pty Ltd claims to have an interest in tenement E47/1140 and the other tenements in respect of which it has made application.�

10 Mr Ammon has commenced proceedings in the Supreme Court of Western Australia against Consolidated Minerals Limited and Pilbara Iron Ore Pty Ltd in which he has claimed remedies for misuse of confidential information, breach of fiduciary obligations, breach of copyright, misleading and deceptive conduct and related causes of action.� Mr Ammon claims that he is entitled to all of tenement E47/1140 and all of the nearby tenements which were taken up by Pilbara Iron Ore Pty Ltd in its own name.� By reason of the Supreme Court proceedings, the ownership of the Mindy Mindy project is in issue.� Mr Ammon claims that he has a common interest, which he puts as a substantial interest, in Fortescue�s application as he says he is one of the owners �and even possibly the only owner� of the Mindy Mindy project and the nearby haematite project.�

11 Although Mr Ammon is not involved in litigation with Fortescue he has little contact or dialogue with Fortescue because of the litigation with Consolidated Minerals Limited and Pilbara Iron Ore Pty Ltd, of which Fortescue is a 50% shareholder.� He does not believe his interests are being appropriately represented or protected in the present proceeding.� Mr Ammon contends that because of his involvement in the Mindy Mindy project and his own haematite iron ore holding at Mindy Mindy, he has a substantial interest in the matter of rail access for iron ore in that part of the Pilbara and he has substantial knowledge about matters relating to that area.

12 There are a number of provisions in the Act which provide a basis for intervention by parties in particular proceedings under the Act.� The applications by Rio Tinto and Mr Ammon were initially made pursuant to s 109 of the Act which provides:

�Participants in proceedings before Tribunal

(1)��

(1A)��

(2)�� The Tribunal may, on such conditions as it thinks fit, permit a person to intervene in proceedings before the Tribunal.�

13 Subsequently, after the hearing of submissions was concluded, Rio Tinto was granted leave to file supplementary submissions in which it argued that s 109(2) of the Act did not provide a basis on which the Tribunal could grant a party leave to intervene in an application for review of the designated Minister�s decision brought pursuant to s 44K(2) of the Act.� Rather, it contended that the Tribunal�s power to grant leave to intervene or participate in the review was derived from s 44K(5) which provides:

�For the purposes of the review, the Tribunal has the same powers as the designated Minister.��

Rio Tinto drew in aid of its submissions s 44K(4) which provides:

�The review by the Tribunal is a re‑consideration of the matter.�

The reference to �the matter� is clearly a reference to the matter which was before the Minister, and in respect of which the Minister had to make a decision.� That matter is making a decision, on receipt of a declaration recommendation by the Council, whether to declare the service the subject of the recommendation or whether to decide not to declare the service.

14 Section 109 is found in Div 2 of Pt IX of the Act.� The heading to Pt IX is �Review by Tribunal of Determinations of Commission�.� Part IX contains two Divisions.� Division 1 is headed �Applications for Review� and Div 2 is headed �Procedure and Evidence�.�

15 Rio Tinto submitted that the general words of s 109(2) were limited by the terms of the heading to Pt IX of the Act and were not expanded by reference to the heading to s 109.� Section 13 of the Acts Interpretation Act 1901 (Cth) provides:

�(1)�� The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act.

(2)��

(3)�� No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.�

Rio Tinto contended that s 109(2) did not apply to all proceedings before the Tribunal but was limited to proceedings in which the Tribunal reviews an authorisation or a notification decision by the Australian Competition and Consumer Commission (�the Commission�).

16 In Re Freight Victoria Limited (2002) ATPR 41‑884, the State of Victoria sought a stay in respect of a review by the Tribunal of a decision by the designated Minister under s 44H(1) of the Act not to declare a service.� The Tribunal said at par [17]:

�The Tribunal has a general discretion to control and regulate its own proceedings in accordance with s 103(1) of the Act.� Although that section is found in Div 2 of Pt IX of the Act which is headed �Review by Tribunal of determinations of Commission�, the Tribunal is satisfied that the provisions in Div 2 which relate to procedure and evidence apply to all hearings and proceedings of the Tribunal and not only to a review of Australian Competition and Consumer Commission determinations.� That discretion enables the Tribunal to determine to allow an adjournment or temporary stay of its proceedings.� The discretion is unfettered by any statutory limitation.�

17 In Lakes R Us Pty Ltd [2006] A CompT 3, the Tribunal considered an application by the applicant for leave to withdraw its application for the review of a decision of the Acting Premier of New South Wales not to declare water storage and transport services provided by Snowy Hydro Ltd and State Water Corporation.� As to the source of power to grant such an application French J said at [26]‑[27]:

�In addition to the provisions of the Act specifically directed to the functions of the Tribunal under Part IIIA and the associated Regulations, it is necessary to have regard to Div 2 of Pt IX of the Act.� Part IX of the Act is concerned with review by the Tribunal of determinations of the Commission.� It was part of the Act from the outset.� Division 1 of Pt IX deals with applications for review of Commission authorisation determinations and so has no application to these proceedings.� Division 2 of Pt IX is entitled �Procedure and Evidence�.� It deals generally with the procedures of the Tribunal.� The generality of those provisions allows for their application to proceedings taken before the Tribunal under other Parts of the Act. The question is whether they apply to applications under s 44K for the review of declaration decisions.

Part IIIA of the Act makes only limited provision for the procedures to be adopted by the Tribunal in dealing with applications made under it.� Section 44ZQ expressly excludes the application of the procedural provisions (ss 103 � 110) in Div 2 of Pt IX to the review by the Tribunal of access decisions by the ACCC.� This indicates that these provisions would otherwise apply to the review of decisions under Pt IIIA.� In particular it supports the conclusion that the general procedural provisions in Pt IX apply to the review of declaration decisions under s 44K.��

18 Rio Tinto submitted that French J had fallen into error as it read s 109(2) subject to the heading to Pt IX which meant that the proceedings before the Tribunal in s 109(2) were confined to review by the Tribunal of determinations by the Commission.

19 That submission fails to pay sufficient attention to the heading to Div 2 of Pt IX, �Procedure and Evidence�.� Section 103 and the succeeding sections in Div 2 deal generally with the procedures of the Tribunal.� That Division was part of the Act from its inception.� I consider that the intention of the legislature at the time was that Div 2 of Pt IX would apply to all proceedings before the Tribunal brought under the provisions of the Act from time to time.�

20 There is nothing in Pt IIIA of the Act, which was introduced into the Act in 1995, which suggests that reviews by the Tribunal under provisions such as s 44K were not to be undertaken in accordance with procedures and evidence determined in accordance with Div 2 of Pt IX of the Act.� Indeed, Pt IIIA is silent as to the procedural and evidentiary provisions which are to apply to reviews by the Tribunal under s 44K.

21 The terms of s 44ZQ are of little assistance in resolving the issue under consideration as that section is found in Div 3 of Pt IIIA which deals with access to declared services, and more particularly, the review by the Tribunal of arbitration determinations of the Commission.� Section 44ZQ provides:

�Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not apply in relation to a review by the Tribunal of a determination made by the Commission.�

The section expressly excludes the application of Div 2 of Pt IX to the review by the Tribunal of arbitration determinations by the Commission.� It also excludes ss 37 and 39 to 43 from applying to such reviews.� The rationale for the exclusion of those provisions, which relate to the constitution of the Tribunal for hearings, is not apparent. �It is telling, however, as French J pointed out in Lakes R Us Pty Ltd (supra) that there is no such similar exclusion of Div 2 of Pt IX with respect to reviews by the Tribunal under s 44K.

22 I am therefore satisfied that s 109(2) provides a basis for an application by a party, other than an applicant for declaration or a service provider, to intervene in or participate in the hearing of a review under s 44K of the Act.

23 I also consider that there is an alternative basis on which an application for leave to intervene, or participate, in such a proceeding may be made.� That basis is grounded in s 44H(1) and ss 44K(4) and (5) of the Act.� The re‑consideration of the matter by the Tribunal, possessing the same powers as the designated Minister, is a re‑consideration of the decision, having received a declaration recommendation from the Council, whether to declare or not to declare the service.

24 When the Minister received the declaration recommendation from the Council and pursuant to s 44H(1) he had to decide, in the light of that recommendation, whether to declare the service or not to declare the service, the Minister was obliged to consider whose rights or interests might be affected by his decision one way or the other and then to give a person whose rights or interests might be so affected the opportunity to make submissions to him.� He was also entitled to consider whether there was any person who may be able to provide assistance to the Minister in respect of his decision and, in particular, in respect of the matters specified in s 44H(4).

25 There is considerable learning on the issues of procedural fairness and the obligation of an administrative decision‑maker to give a person who may be affected by the decision a right to be heard.� For example, in Kioa v West (1985) 159 CLR 550 Brennan J said at 619:

�If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power.� No doubt the matters to which the repository is bound or is entitled to have regard depend upon the terms of the particular statute and, if there be no positive indications in its text, the subject‑matter, scope and purpose of the statute must be looked at to determine whether the repository is bound or is entitled to have regard to individual interests [citations omitted].� When the repository is bound or is entitled to have regard to the interests of an individual, it may be presumed that observance of the principles of natural justice conditions the exercise of the power, for the legislature can be presumed to intend that an individual whose interests are to be regarded should be heard before the power is exercised.�

Those observations when applied to the present circumstances, mean that the Minister had to turn his mind to a consideration of whose interests might be affected by his decision and who may be able to assist him in respect of his decision‑making process.

26 The Tribunal has to give consideration to the same issues as are addressed by the Minister as well as exercising the same powers as the Minister.� The Tribunal must therefore ask whose rights or interests may be affected by its decision and who may be able to assist it in its decision‑making process.� If a person whose rights or interests may be affected by the Tribunal�s decision wishes to make submissions to the Tribunal, ordinarily he should be allowed to do so, so long as he can demonstrate a right or interest which may be affected.

27 However a person does not establish such a right or interest simply by relying on the fact that earlier he had made submissions to the Council or the Minister.� As Rio Tinto pointed out in its submissions par [32]:

�It does not follow that a person who has been involved in advancing submissions and contributing evidentiary material to the Council or the designated Minister is entitled as of right to participate in all processes undertaken by the Tribunal.�

Much will depend upon the nature of those submissions and that material and the interest or right in respect of which it is drawn in aid.

28 Rio Tinto submitted that a decision by the Tribunal �to refuse to consider relevant submissions or logically probative evidentiary material proffered by such a person to the Tribunal would be difficult to justify under s 44K�.� But the validity of such a decision would depend upon the relevance of such submissions and material to the matters set out in s 44H(4), the connection which the party propounding such submissions and material had with such matters and the interest or right the party was seeking to protect or enhance by making such submissions and providing such material.

29 Rio Tinto contended that �a �re‑consideration of the matter� implies that at the least the Tribunal consider the same material that was before the Minister and any further submissions and material that are relevant to the matter that was before the Minister�.� I do not accept that contention.� A �re‑consideration of the matter� is the fresh commencement of the process described in s 44H(1), that is, the declaration recommendation having been received from the Council, the Tribunal has to decide either to declare the service or decide not to declare the service.� In making that decision the Tribunal is bound to give the applicant for the recommendation and the access provider the opportunity to participate in the review and to make such submissions and provide such material and evidence as they may be advised.� The Tribunal is also bound to give any other person whose rights or interests may be affected by its decision the same opportunity and it is also entitled to receive material and submissions from any person it considers may be able to help it in reaching its decision.� But the Tribunal is not bound to consider any submissions or material placed before the Minister.� It is re‑considering the matter and starting afresh to consider what decision to make after the declaration recommendation has been made by the Council.� It is for the Tribunal to determine the manner in which, and the extent to which, it will receive submissions and material from the parties to which I have referred.� It is also for the Tribunal to determine whether, and the extent to which, it will have an oral hearing and who it will allow to participate in that hearing.�

30 There is no �sufficient� or �real and substantial� interest requirement found in s 109(2) and the discretion to grant leave to intervene reposed in that subsection is not limited by the connotation of such expressions.� The discretion is not constrained by any limitation and it is not easy, nor is it appropriate, to define or delimit the categories of persons who may be given leave to intervene under s 109(2).� It does not follow that in exercising its discretion pursuant to s 109(2) of the Act, there are no limitations or restrictions on the persons who wish to intervene or participate in reviews by the Tribunal.�

31 Section 109(2) is to be contrasted with other provisions under which applications can be made for leave to intervene in particular proceedings before the Tribunal, where criteria such as having �a sufficient interest� or �a real and substantial interest� in the proceeding must be satisfied.�

32 For example, pursuant to s 101 of the Act, a person �dissatisfied� with a determination by the Commission may apply to the Tribunal for a review of the determination.� If that person is an applicant for an authorisation or for a variation or revocation of an authorisation or is a person in respect of whom the Tribunal is satisfied has �a sufficient interest� the Tribunal must review the determination.� Similarly, pursuant to s 44U of the Act the parties to the arbitration of an access dispute are the provider, the third party and any other person who applies to be made a party and is accepted by the Commission as having �a sufficient interest�.� A similar provision is found in s 152CO of the Act in relation to the telecommunications access regime where a party can be made a party to the arbitration of an access dispute if the party is accepted by the Commission as having �a sufficient interest�.�

33 The concept of �a sufficient interest� has been construed as including a person whose �business interests or prospects could be adversely affected�:� Re Application by Wylie Steel Pty Ltd (1980) ATPR 40‑170 at 42,344.� In Re Telstra Corporation Limited (2001) 160 FLR 120 the Tribunal concluded that two Optus companies had established �a sufficient interest� within the meaning of s 152CO of the Act because of their close evidentiary involvement in discussions and processes before the Commission relating to decisions about the manner in which Telstra�s public switched telephone network should be costed and the actual cost of that network.

34 Under s 90A(2) of the Act, before determining an application for an authorisation (other than under s 88(9)), the Commission is to prepare a draft determination and send it to the applicant and to �each other interested person�.� The expression �interested person� is defined in subs (12) of s 90A as a person:

�who has notified the Commission in writing that he�claims to have an interest in the application, being an interest that, in the opinion of the Commission, is real and substantial.�

35 Nevertheless, I consider that an applicant for leave to intervene or participate under s 109(2) or under s 44K(4) and (5) must, as a minimum, be able to establish some connection with, or interest in, the subject matter of the proceeding which discloses that it is not merely an officious bystander.� What the nature of that connection or interest must be, will vary from case to case.� It is not necessary that an applicant be required to establish that its business interests or business activities or prospects may be detrimentally affected by the subject matter of the proceeding or its outcome.� Such a limitation is not warranted by the broad discretion found in s 109(2) or in the process provided by s 44K(4) and (5).� However the connection should usually be one that discloses that the applicant for leave to intervene has some interest which is ignited by the proceeding, which is an interest other than that found in members of the general community.�

36 An application for intervention in an application to review a decision of the designated Minister not to declare a particular service must be considered by reference to the nature of the application for review and the purpose and context of that Part of the Act under which the application for review is made, in this case Pt IIIA of the Act.� An application for review of the decision of the designated Minister under Pt IIIA of the Act is the last step in the declaration process which commences with an application for the recommendation of the Council under s 44F of the Act that a particular service be declared.� The declaration process, however, is only the first stage of a two stage procedure.� It opens the door to access to the service but does not result in access to the service being granted to the applicant or to anyone else.� Upon declaration a person has the right to negotiate terms and conditions of access to the service with the service provider or to have them arbitrated by the Commission.� It is only at that second stage that the actual terms and conditions upon which access is to be granted are determined.�

37 At the first stage of the process, the declaration stage, any person may apply to the Council pursuant to s 44F(1) of the Act to recommend that a particular service be declared under s 44G of the Act.� At the initial application stage there is no requirement that such a person have any particular interest in the subject matter of the application, whether �sufficient�, �real and substantial� or otherwise. �It is only when the second stage is reached, that is arbitration of access disputes, after a service is declared, that s 44U requires a party to the arbitration other than the provider and the third party to be a person who has �a sufficient interest�.�

38 The Council, the designated Minister and ultimately, if there be a review, the Tribunal are required to be satisfied in respect of a number of matters which go far and beyond issues related to particular applicants which might be thought to arise in the context of an inter partes dispute.� Those matters are found in ss 44G(2) and 44H(4).� They involve matters of national interest unrelated to particular applicants such as whether the facility is of national significance and whether access to the service would be contrary to the public interest.�

39 Rio Tinto submitted that as the review by the Tribunal is a consideration of the same matters considered by the Council and the designated Minister it would be an odd outcome for a participant in the processes before the Council and the Minister to be excluded by the Tribunal from participation in the proceeding before the Tribunal.� Ordinarily that may be so, although the situation will depend on the circumstances of the particular participant.� However it does not follow, and Rio Tinto did not submit, that participation in the process before the Council or the designated Minister, of itself, entitles the participant to intervene and participate in any review by the Tribunal.�

40 It must be remembered that if the designated Minister decides not to declare a service, the person who applied to the Council for the declaration recommendation has the right, pursuant to s 44K(2), to apply to the Tribunal to review that decision.� No leave to apply to review the decision need be sought by the applicant for the recommendation.� By the time of the review by the Tribunal it will have the benefit of the recommendation of the Council and, usually, the decision of the designated Minister (unless the Minister is taken, pursuant to s 44H(9), to have decided not to declare the service).� At that time the Tribunal is better placed than was the Council at the time of the application for recommendation to consider whether a person should be given leave to intervene and participate in the review.�

41 Rio Tinto submitted that in a review at the first stage of the access process, namely the declaration process, the Tribunal ought to adopt a generous and flexible approach to an application to intervene, particularly in relation to an intervener who has been a significant participant in the processes before the Council or the designated Minister.

42 I accept that in the context of an application to review a decision of a designated Minister in relation to the declaration of a service which may have significant consequences for the Australian community and the economy generally, it is desirable that the Tribunal adopt what I would call an enabling approach rather than a restrictive approach to an application to intervene.� This is particularly so where Pt IIIA of the Act is to be seen as enabling legislation, that is to say legislation designed to expand the opportunity for participants or potential participants in the economy to obtain access to services relevant and necessary to enable them to carry on their respective commercial operations.� Nevertheless, there should be some limitation on the opportunity to intervene in such proceedings before the Tribunal.�

43 Although s 109(2) is not couched in terms of any particular �interest� being required to be demonstrated before leave should be granted, I consider that it is necessary for some connection with the subject matter of the application for review to be demonstrated. Obviously an officious bystander would not be given leave to intervene, but it is necessary to show some particular interest in the subject matter of the application.� I do not consider that it is necessary for an applicant for intervention to go as far as to show that it may be affected in some way by the declaration but it is necessary, as I have noted earlier, to show that some interest touching and concerning it can be demonstrated.

44 There are a number of decisions which provide analogies for the principles upon which I should consider the applications for intervention in this proceeding. �

45 In Re Application by Orica IC Assets Limited (2004) ATPR 41‑991, two consumer interest groups applied to the Tribunal to review a decision of the relevant Minister to revoke coverage of a portion of the Moomba to Sydney gas pipeline.� The standing of those organisations to make the application to the Tribunal depended upon whether each body was �adversely affected� by the decision within the meaning of s 38(1) of Sch 1 to the Gas Pipelines Access (South Australia) Act 1997(SA).� The Tribunal held that the organisations were not adversely affected by the decision.� Relevantly, for present purposes, the Tribunal said at pars [14]‑[15]:

�It is common ground that the issue of standing must be answered by reference to the subject, scope and purpose of the legislation [citations omitted].� We concluded that construction of the legislative scheme here does not lead to the conclusion that either EUAA or EAG is affected by a decision of the Minister to revoke coverage.� Counsel for EUAA and EAG is correct to point out that there is scope for the organisations to participate in the process up to the point of the Minister�s decision.� Indeed, either corporation could, if so inclined, have sought revocation of coverage.� That process indicates recognition of the wide ramifications of a decision to be made and of the advantages of a relatively open procedure, including the ability for the decision maker to receiver material encompassing a variety of points of view.

However, we agree with the submission for EAPL that this process concludes at the point of the Minister�s decision.� The requirement that the applicant for review be �adversely affected� by the decision is at that point introduced for the first time.� It is sensible that this be so.� The Minister�s decision is itself an informed and structured consideration of a recommendation of the National Competition Council, which in turn is the result of an informed and structured process.� It does not follow that a person who played some role in these processes should be able to challenge the result.� The two stage process is likely to have taken some time and will have a direct effect upon various parties immediately involved.�

46 Although we are not concerned in the present case with the necessity for a party to be �adversely affected�, these reasons demonstrate that different considerations will arise when considering who should have the opportunity to participate in a review of an earlier decision where there is no limitation on who might be able to have input into the earlier decision.�

47 In Re Telstra (supra) applications were brought by Telstra Corporation Limited (�Telstra�) seeking review of determinations made by the Commission on access disputes between Telstra and AAPT Limited and Primus Telecommunications Pty Ltd.� The determinations were made pursuant to the provisions of Pt XIC of the Act.� Two Optus companies applied to intervene in the proceeding as did Macquarie Corporate Telecommunications Pty Ltd (�Macquarie�).� The application by the Optus companies was granted and the application by Macquarie was refused.� Section 152CO provided that the parties to the arbitration of an access dispute included, inter alia, any person who was accepted by the Commission as having �a sufficient interest�.� Regulation 28E(2) of the Trade Practices Regulations 1974 (Cth) provided that the Tribunal might, upon such conditions as it thought fit, permit a person to intervene in a review.� Optus and Macquarie applied under this regulation to intervene.�

48 The Tribunal accepted a submission on behalf of Telstra that the sufficiency of interest of a proposed intervener must be determined by reference to the purpose and structure of Pt XIC of the Act, the nature of the proceeding before the Tribunal and the nature and extent of the applicant�s interest.� The Tribunal acknowledged the distinction between a private arbitration of an access dispute between two commercial parties and a public inquiry into access pricing.� However, the Tribunal also noted the �important public character� which arbitration had in the scheme of Pt XIC, the object of which was the promotion of wider public interest which transcended either the immediate or long‑term interests of the particular parties to an access dispute.�

49 This distinction between participation at different stages of an application process was also recognised in Re Application by PK Wakeman (1999) ATPR 41‑675.�

50 In Re Qantas Airways Limited (2003) ATPR 41‑972, the Tribunal considered an application by a group of companies operating a travel agency business to intervene in an application by Qantas Airways Limited and Air New Zealand Limited to review a decision of the Commission denying authorisations to them.� Leave to intervene was granted on the basis of the commercial interests and activities of the group and that the knowledge of the relevant industry and markets which it possessed was such that it was in a position to provide relevant evidence and to respond to matters in respect of which it had a relevant interest.� In general terms it may be said that the interests of the travel agency group, in a commercial sense, was affected and impinged upon by the subject matter of the applications for review.�

51 Rio Tinto participated extensively in the consideration of Fortescue�s application by the Council and the designated Minister.� It made a number of substantial submissions on issues of principle concerning the matters contemplated by ss 44G(2) and 44H(4) of the Act.� According to Rio Tinto its submissions advanced a number of contentions which were different to those advanced on behalf of BHP and it developed contentions in a different manner to BHP as well as marshalling expert evidence in support of its contentions.� It is apparent from the Council�s final recommendation that it took into account Rio Tinto�s submissions and had regard to the expert evidence which it propounded.�

52 Rio Tinto submitted that in circumstances where the Tribunal is to reconsider on the merits the same matters as those considered by the Council and the designated Minister, it is appropriate that the Tribunal should have similar assistance from Rio Tinto that was provided to the Council and the designated Minister in addition to further submissions which may be advanced concerning the proper application of the criteria to be applied, or further expert evidence which may be led on behalf of Rio Tinto.

53 The strength and cogency of that submission depends on the extent to which Rio Tinto can place evidence before the Tribunal and make submissions which are not otherwise available to the applicant, Fortescue, or the service provider.� I would not consider that duplicating evidence led by, and making the same submissions as, the service provider would be regarded as such assistance as would warrant the grant of leave to intervene or participate in the review.� If the assistance to be provided to the Tribunal is to be regarded as a factor influencing the grant of leave to intervene or participate, then such assistance should be seen to be adding to the evidence and material placed before the Tribunal by other parties having the right to be heard on the review.�

54 Rio Tinto is a major producer of iron ore from the Pilbara region and owns and operates rail and port facilities in the Pilbara region and performs similar functions as do BHP�s Mt Newman railway and port facilities at Port Hedland.� Its Pilbara infrastructure is proximate to mining tenements controlled by Fortescue and other companies operating in the Pilbara region.� Rio Tinto is also a major competitor of BHP and other parties in the global iron ore market.� These factors, of themselves, are not persuasive of Rio Tinto�s application for leave to intervene.� What is more important is whether Rio Tinto can relevantly add to, or supplement, rather than simply repeat and duplicate, evidence led by, and submissions made by, Fortescue and BHP.

55 Rio Tinto submitted that the performance of the Pilbara iron ore industry would be adversely affected if track access by third parties to Pilbara rail infrastructure was declared.� But, there is no application for track access to Rio Tinto�s rail infrastructure and such access to its Hamersley rail infrastructure is precluded by the decision in Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203.� Nor is there any proposal that declaration be sought in relation to any other service provided by the use of Rio Tinto�s infrastructure in the Pilbara region.�

56 Rio Tinto also submitted that it is in the public interest that both BHP and Rio Tinto be permitted to participate in the proceeding which may have profound implications for the future performance of the iron ore industry in the Pilbara region and, in consequence, the Australian economy.� However, such implications as may arise will arise from access to BHP�s rail infrastructure rather than from access to Rio Tinto�s rail infrastructure.�

57 Rio Tinto contended that its interest in the declaration process arose because the nature of the issues considered in the application would, in effect, determine many of the relevant issues in relation to applications in relation to railway and port infrastructure in the Pilbara.� That proposition depends upon the particular infrastructure issues involved but Rio Tinto contended that the issues raised by the current application were �generic� to applications in the Pilbara region for railway and port infrastructure.� It was put to Senior Counsel for Rio Tinto that what Rio Tinto was really saying was that this application had precedent value which would bind the region for the future.� Senior Counsel said that he did not go so far as to say that the determination of the application would bind the region but he did submit that the result would be more direct in terms of consequences for Rio Tinto.� As referred to earlier, Rio Tinto accepted that the determination of this application could not affect its Hamersley railway line.� Rio Tinto also has a controlling interest in the railway line from Pannawonica to Cape Lambert which was described as the Robe River railway line but that has not been the subject of any application for access.�

58 Senior Counsel for Rio Tinto said that its interest in the proceeding was to protect itself from the precedent effect of the determination of issues nominally for the Mt Newman railway line which would have a powerful precedent effect on future applications for declaration of services in respect of Rio Tinto infrastructure.� Although the parties� submissions before the Council and the designated Minister were couched in terms that described facilities and services of infrastructure in the Pilbara region generally, it does not follow that the determination of issues in this proceeding would bind or necessarily have a significant or adverse affect on Rio Tinto in any future proceedings which might involve access to any of its infrastructure.�

59 Let me give an example.� Senior Counsel for Rio Tinto referred to the final recommendation of the Council which included a summary of the arguments raised by the parties before it.� He referred to BHP�s submission that: �Iron ore railways in the Pilbara, including the Mt Newman Facility, are a highly efficient, vertically integrated element of the supply chain for iron ore�.� That submission purports to refer to Rio Tinto�s Hamersley railway line but it is no part of the proceeding before the Tribunal to make any investigation of that railway line or to determine any issues in relation to it.� The submission of BHP was descriptive and narrative rather than identifying a specific issue for determination.

60 Fortescue submitted that the Tribunal should refuse Rio Tinto�s application on the basis that it did not have a real and substantial or sufficient interest in the subject matter of the proceeding because:

(a)�� it had not demonstrated a sufficient nexus between the declaration application in respect of the service provided by BHP�s Mt Newman railway line and its interests;

(b)�� it had not demonstrated how its business interests or prospects were likely to be materially adversely affected by the declaration of the service provided by BHP�s Mt Newman railway line;

(c)�� it had not demonstrated any useful or different contribution to that of BHP and the Council;

(d)�� its intervention would add unnecessary costs and delay to the proceeding due to duplication of contentions and evidence.

61 Fortescue contended that a potential increase in the risk of declaration from any precedent effect of declaration of the services sought by Fortescue was not a sufficient nexus with the subject matter of the proceeding to justify intervention by Rio Tinto.� Fortescue relied upon a passage in Re Telstra (supra) at 128:

�The precedent effect is not a sufficient reason in itself to allow intervention in proceedings before a court of other parties whose businesses will be affected by the flow‑on effect of the decision.� We do not think it provides a sufficient interest to ground an application to intervene in the present reviews.�

62 In Re Telstra it was part of the reasoning of the Tribunal that just because the decision might be a precedent for the future did not mean that someone affected by the precedent could have standing.� However, Rio Tinto sought to distinguish that case from the present as in Re Telstra the issue was intervention in a private inter partes arbitration dispute whereas in the present circumstances the Tribunal is concerned with declaration of a service which, if granted, opens up the service to persons generally and not simply to particular applicants.�

63 One cannot speculate as to what might be the nature of any future application for access in the future to services provided by infrastructure facilities owned, controlled or operated by Rio Tinto.� Although the proceeding before the Tribunal inevitably involves an analysis of markets and commercial activities in which Rio Tinto may be a participant, any effect on any service provided by Rio Tinto is purely hypothetical because one cannot anticipate what might be the nature of any application in the future.�

64 Rio Tinto also referred to BHP�s freight carriage obligations which arise under the provisions of the BHP State agreement which BHP contended constituted an effective access regime within the meaning of ss 44G(2)(e) and 44H(4)(e) of the Act.� The relevant provisions of the BHP State agreement which create an obligation to carry third party freight are found in the same terms in State agreements into which Rio Tinto has entered in relation to the Hamersley and Robe River railway lines.� There are also similar provisions in relation to protected contractual rights.�

65 Even if Rio Tinto has entered into contractual obligations in relation to its railway lines which are similar to those of BHP it did not appear that Rio Tinto had any particular interest in that respect which would be different to that of BHP and which would not be the subject of argument or submission by BHP.

66 Rio Tinto also relied on the fact that it had put a number of expert opinions and expert reports before the Council both in relation to economic evidence and material relating to the costs which would be attributable to a common usage of a railway such as from Mt Newman to Port Hedland.� It was not suggested that this was material which would not be covered or the subject of submission or presentation by BHP.�

67 What is significant is the fact that there are two major Pilbara iron ore producers, Rio Tinto and BHP.� Rio Tinto is intimately involved in the operations in the Pilbara region and participates in the same markets as BHP for the products of the Pilbara region.� It is important to note that the issues before the Tribunal at this aspect of the declaration and access process involve an examination of issues which in a number of respects concern the public interest and not simply issues between specific parties.� I return to this issue at pars [78]‑[80].

68 I turn to the contentions advanced on behalf of Mr Ammon.� Mr Ammon submitted that it was appropriate that he be given leave to intervene in order to ensure his interests were represented and heard.� He submitted that Fortescue�s actions might not represent his interests or the interests of other parties in the region.� He submitted that if the declaration application was successful the BHP rail facilities would be available to other participants in the region and the manner of that availability would be important.� Accordingly, it was useful to have a party being another participant in the region as an intervener to ensure that viewpoints other than large participants such as BHP and Rio Tinto were represented and to ensure that Fortescue did not overlook the needs of smaller participants.

69 Mr Ammon contended that he had two types of interest in the Mindy Mindy project which was the basic project in respect of which Fortescue was seeking access to the service provided by BHP.� The first was his interest in the core tenement and the second was what he called the contingent interest in the balance of the entire Mindy Mindy project which meant all of the surrounding tenements which had been taken up by Pilbara Iron Ore Pty Ltd and the balance of the ore body which existed on the core tenement in respect of which he was seeking orders from the Supreme Court in Western Australia.� Mr Ammon submitted that this gave him a direct interest in the actual assets which were being used as the basis of Fortescue�s application.

70 Notwithstanding Mr Ammon�s claimed interest in the Mindy Mindy project it did not appear that he would be seeking to make submissions or raise issues in the proceeding which were different from those of Fortescue.� Mr Ammon was concerned that Fortescue was seeking access to the service provided by the railway line and the facilities immediately connected with it but was not seeking access to rolling stock.� He contended that that was not a matter that necessarily suited him or other parties in the region.� He contended that in this respect his interests and those of Fortescue were not necessarily neutral.� However, it was not clear what Mr Ammon�s position was in relation to the application which Fortescue was making before the Tribunal.� Counsel for Mr Ammon acknowledged that the position he might take in the proceeding was not clear.� He put it that he may take the view that the access which is being sought by Fortescue was not in his interests or in the interests of other parties in the region.� On the other hand he put it that it may be that, on being involved in the proceeding, Mr Ammon would come to see that the application by Fortescue was the best that could be done in the circumstances, or that some other type of outcome may be achieved.

71 This attitude of Mr Ammon demonstrated a misunderstanding as to the outcomes open to the Tribunal.� By virtue of the provisions of s 44K(8), the Tribunal can either set aside the Minister�s deemed decision and make a declaration in respect of the service the subject of the application or affirm the Minister�s deemed decision not to declare the service.� It is not open to the Tribunal to make some sort of compromise declaration on a different type of access than that sought by Fortescue or to decide the terms and conditions on which access might be granted to third parties.� That is a matter for the second stage of the access process.� Mr Ammon was concerned with the manner of availability of the rail facilities if they were declared, but that is not a matter which can be dealt with by the Tribunal at this stage.�

72 As referred to earlier in these reasons, the access provisions in Pt IIIA of the Act contain a two stage process.� The actual terms and conditions of access to the service, if declaration is made, is the second stage of the process which in default of agreement between the service provider and an access seeker is to be resolved by arbitration by the Commission.� Such issues as to the terms and conditions of access are not before the Tribunal in the present proceeding.�

73 It is one matter to grant leave to intervene to a party who has a specific submission or range of submissions to make in relation to the subject matter of the application for declaration either for or against the application.� However, it is quite another matter to grant leave to another party to intervene and participate in circumstances where the party has not yet made up its mind what position it wishes to take in relation to the application.�

74 Although Mr Ammon submitted that he was not in possession of enough information to know whether he wanted to support Fortescue in its application, he has had the benefit of a final recommendation from the Council in the form of a very detailed and fully reasoned analysis of the application.� An important consideration in applications for intervention is whether the Tribunal would be assisted by the position taken and submissions made by an intervening party.� So far as Mr Ammon is concerned this issue cannot be determined one way or the other simply because he does not know at this stage what approach he wishes to take.�

75 I do not consider that it is appropriate at the present time to grant Mr Ammon leave to intervene in the proceeding and participate in the review in the absence of knowing whether he supports the application or is opposed to it.� He should not be allowed to participate in the proceeding simply on the basis of it being a fishing exercise to enable him to determine what his approach might be, either to the application for declaration of a service or whether he wishes to consider that there should be an application for a different type of service, such as one, for example, which would include an application to have access to rolling stock on the railway line.� However, I am prepared to reserve to him liberty to renew his application for leave to intervene in the proceeding and participate in the review if he is in a position to decide whether he supports the application or is opposed to it and if he is in a position to set out the basis for that support and opposition and the nature of his proposed participation in the review.

76 The position of Rio Tinto is different.� Fortescue has identified a number of dependent markets for the purposes of the issue raised by s 44H(4)(a) of the Act.� Most if not all of those markets are markets in respect of which Rio Tinto is a significant and substantial participant.� BHP submitted that Fortescue was contending that the level of competition in those markets has been impacted upon by what it called the duopoly of the incumbent parties, BHP and Rio Tinto.� BHP submitted that it, and indeed the Tribunal, would be impeded from evaluating that dimension of the alleged duopoly that related to Rio Tinto, without the assistance of Rio Tinto.� There is merit in this submission.

77 I do not consider that Rio Tinto�s prior involvement in the Council�s process and the designated Minister�s process constitutes of itself a sufficient interest to justify the Tribunal granting Rio Tinto leave to intervene and participate in the proceeding.� Nor do I consider that the desire of Rio Tinto to participate in what it calls a precedent making decision is a sufficient interest as it is a matter of speculation as to what might be the nature of any future application for declaration of any particular service in respect of which Rio Tinto may be a provider.� However, I consider that Rio Tinto�s role in the Pilbara iron ore industry is such that it is able to contribute and to assist the Tribunal in respect of its consideration of the matters raised by s 44H(4), particularly those relating to the public and the national interest.�

78 Rio Tinto will therefore be given leave to participate in the proceeding and the review but not on the basis that it will be at large as to its participation in the review or as to the submissions it may make or as to the material it may place before the Tribunal.� The Tribunal wishes to ensure that there is no unnecessary duplication of submissions and evidentiary material placed before it.� The order will be that subject to the Tribunal�s power to direct the nature and extent of its participation in the proceeding and the review, Rio Tinto be granted leave to intervene in the proceeding and participate in the review.

I certify that the preceding seventy‑eight (78) numbered paragraphs are a true copy of the Reasons for Determination herein of the Honourable Justice Goldberg.

Associate:

Dated:�� 7 September 2006

Solicitor for the Fortescue Metal Group Ltd:	Mr S Uthmeyer

Counsel for BHP Billiton Iron Ore Pty Ltd and BHP Billiton Minerals Pty Ltd:	Mr A Archibald QC on 14 July 2006 and Mr M O�Bryan on 2 August 2006

Solicitor for BHP Billiton Iron Ore Pty Ltd and BHP Billiton Minerals Pty Ltd:	Blake Dawson Waldron

Counsel for National Competition Council:	Mr C Scerri QC with Ms K Anderson

Solicitor for National Competition Council:	Clayton Utz

Counsel for Rio Tinto Tinto Ltd:	Mr P Collinson S.C. with Mr C Caleo

Solicitor for Rio Tinto Tinto Ltd:	Allens Arthur Robinson

Solicitor for Mr Derrick Ammon:	Mr G Taylor

Date of Hearing:	14 July, 2 August 2006

Date of Final Submissions:	4, 11 and 16 August 2006

Date of Determination:	7 September 2006