ON APPEAL FROM THE AUSTRALIAN COMPETITION TRIBUNAL

REASONS FOR JUDGMENT

1                                             There are three proceedings before the court.  In each of them, the applicant makes application for judicial review of a determination made by the respondent, the Australian Competition Tribunal (‘the Tribunal’).  In each of them, BHP Billiton Iron Ore Pty Ltd and BHP Billiton Minerals Pty Ltd (‘BHPB’) apply to be made parties to the application.  In two of the proceedings (VID 616 of 2010 and VID 686 of 2010), the National Competition Council (‘NCC’) has sought leave to appear as intervener in the application, upon certain conditions.   The Tribunal has filed a submitting appearance.

2                                             The NCC made its application for leave to intervene pursuant to O 6 r 17 of the Federal Court Rules 1979 (Cth) (‘the Rules’).  In its written submissions dated 12 October 2010 the NCC set out the basis of its application and the nature of the submissions that it wished to make at the hearing of the application.   There was no opposition to a grant of leave being made upon conditions as to costs. 

3                                             I have had regard to the matters mentioned in O 6 r 17(2)(a) and (b), as well as other relevant matters mentioned in the NCC’s written submissions, and the views of the parties.  In the circumstances, in each application filed in proceedings VID 616 of 2010 and VID 686 of 2010, pursuant to O 6 r 17 of the Rules, I would grant the NCC leave to appear as intervener and, as intervener, be granted leave to:

(a)        appear at any interlocutory hearings and make oral and written submissions on any interlocutory matters in relation to the application;

(b)        make oral and written submissions to the effect set out in the NCC’s written submissions dated 12 October 2010 in support of its application to intervene (‘the 12 October 2010 submissions’);

(c)        for the purpose of making oral submissions to the effect set out in the 12 October 2010 submissions, appear at any hearing for the determination of the application.

There will be further orders that the NCC bear its own costs of the intervention in the two proceedings, and that none of the other contending parties will seek costs against it.  There will, of course, be liberty to apply. 

4                                             In each proceeding, by motions filed 1 October 2010, BHPB applied pursuant to s 12 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’) to be joined as parties.  In each proceeding BHPB relied on an affidavit of Stephen John Ridgeway sworn on 1 October 2010.    

5                                             In proceeding VID 616 of 2010 the applicants (‘the Fortescue parties’) challenge the decision of the Tribunal made on 30 June 2010, under s 44K(7) of the Trade Practices Act 1974 (‘TPA’), to set aside the Treasurer’s decision to declare a service (‘the Hamersley Rail Service’) under s 44H.     In proceeding VID 687 of 2010 the Fortescue parties also challenge the decision of the Tribunal made on 30 June 2010, under s 44K(7) of the TPA, to set aside the Treasurer’s decision to declare a service (‘the Robe Rail Service’) for 20 years under s 44H, and replace it with a decision for 10 years only.

6                                             In proceeding VID 686 of 2010 the applicants (‘the Rio Tinto parties’) challenge the decision of the Tribunal made on 30 June 2010, under s 44K(7) of the TPA, not to set aside the Treasurer’s decision to declare a service also in relation to the Robe Railway under s 44H. 

7                                             In each proceeding an application for an order of review in relation to the challenged decisions has been made under s 5(1) of the ADJR Act (as well as under other statutory provisions).

8                                             BHPB claims to satisfy s 12(1) and claims that it would be proper for the court to exercise its discretion under s 12(2) in favour of their joinder.  Section 12 of the ADJR Act provides:

(1)               A person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Court under this Act, may apply to the Court to be made a party to the application.

(2)               The Court may, in its discretion –

(a)                grant the application either unconditionally or subject to such conditions as it thinks fit; or

(b)                refuse the application.

9                                             BHPB can be characterized as a “person interested” in each of the decisions in relation to which a review application has been made under the ADJR. The term “interested person” is not a restrictive criterion and signifies “an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody”: United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 527 (‘United States Tobacco’).  Further, the requisite “interest” is not confined to a legal, proprietary, financial or other tangible interest:  see United States Tobacco and Ogle v Strickland (1987) 13 FCR 306 at 315.  The expression covers a person who has an interest in the decision complained of “beyond that which he or she has as an ordinary member of the public”: see Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437.

10                                          The context in which BHPB makes its application now is relevant. The context is set out in Mr Ridgeway’s supporting affidavit filed in each proceeding.  I do not repeat the details here. It suffices to say that the Fortescue parties earlier made applications under s 44F of Pt IIIA of the TPA in respect of BHPB’s Mt Newman Railway and in respect of BHPB’s Goldsworthy Railway.  Without rehearsing all that happened, the applications in respect of BHPB’s Mt Newman and Goldsworthy Railways, as well as the Hamersely and Robe came before the Tribunal and were dealt with together. Before the Tribunal BHPB was granted leave to participate and did participate in the other proceedings and the evidence in the Mt Newman and Goldsworthy applications was, by direction of the Tribunal, also evidence in the other proceedings. The Tribunal affirmed the decision of the Treasurer deemed to have been made on 23 May 2006 not to declare the service provided by the Mt Newman Railway.  The Tribunal also affirmed the decision of the Treasurer on 27 October 2008 to declare for a period of 20 years the service provided by the Goldsworthy Railway.  There are no judicial review proceedings on foot in respect of either the Mr Newman Railway or the Goldsworthy Railway.

11                                          BHPB argued, however, that the Fortescue parties have raised matters in each proceeding that may well impact on its position with respect to the Mt Newman and Goldsworthy Railways.  BHPB contends that many of the issues that arise in the review proceedings before the court might, if decided in favour of Fortescue parties, lead the NCC to recommend to the designated Minister that the declaration be revoked: see s 44J(1).  The court was specifically referred to para 1.10 (Criterion A) of the review application filed in VID 686.  If the Tribunal erred in this regard, as alleged, then, so BHPB said, it erred also with respect to Goldsworthy.  Further, so BHPB said, if the Tribunal erred with respect to criterion B, as alleged in the proceedings, then it would appear also to have erred with respect to Goldsworthy.  The nature of the expansion power (review application VID 686, paras 1.15 and 1.16) was of particular significance. Other examples were also given having this possible effect. 

12                                          Also with respect to Goldworthy, BHPB argued that the determination of the issues raised in these judicial review applications might well lead to the formulation of principles upon which access to Goldsworthy is to be determined.  In the event a third party applies for access and is unable to agree with BHPB, then the third party may notify the ACCC of an access dispute, which the ACCC may then arbitrate: see s 44S and 44V.  Issues raised in the review proceedings before the court might well have implications for any future arbitration over access in this regard.

13                                          With respect to Mt Newman, BHPB argued that the court’s decision on many of the matters raised in the proceedings would have implications for a recommendation in the future that the service provided by the Mt Newman Railway be declared. 

14                                          BHPB also argued that it was better placed than the present parties to present submissions in respect of certain matters; and that its submissions would be different from those of the other parties in some respects. Further, BHPB drew attention to the fact that its evidence constituted a large proportion of the evidence before the Tribunal and submitted that it was, in effect, best placed to deal with this evidence.  In this respect, there was an added complication because some of its evidence before the Tribunal was subject to a confidentiality regime.  BHPB argued that it would be difficult for the Rio Tinto parties to identify and explain BHPB’s confidential evidence.  It said that this might be so especially with respect to the Fortescue parties’ “no evidence” grounds of review. 

15                                          BHPB’s position was strengthened by the announcement by Rio Tinto’s counsel that Rio Tinto intended to pursue grounds addition to those relied on by the Tribunal in support of the Tribunal’s decision, and that those grounds would be relevant to Criterions A and B, and the power of expansion.

16                                          In all the circumstances, without necessarily accepting all that BHPB has submitted as being equally cogent, I would accept that BHPB has established that it is indeed a “person interested” in these proceedings in the relevant sense.

17                                          The further question is whether the court should exercise its discretion and grant BHPB’s joinder application, either unconditionally or subject to conditions.   With respect to this question, there would appear to be three principal matters to consider: (1) the nature of BHPB’s interest in the proceedings; (2) the attitude of the other parties; and, broadly, (3) the effect of joining BHPB on the management of the proceedings: compare Fordham v Evans (1987) 14 FCR 474.  As has been said, there is a risk that in joining a party the burden of the litigation will become excessive: see Cairns Port Authority v Albietz [1995] 2 Qd R 470 at 474.

18                                          The nature of the interest that BHPB claims in these proceedings has been discussed above.  The Fortescue parties challenge these claims, essentially on the basis that much was hypothetical.   The Fortescue parties also argued that BHPB overstated the significance for it of determinations that the court might make.  The Fortescue parties emphasized that there were other mechanisms whereby BHPB’s interest in confidentiality of evidence might be preserved.  The Fortescue parties argued that O 6 r 17 might provide a better basis for allowing BHPB’s limited participation in the litigation.  

19                                          In one sense the Fortescue parties are correct: much of what BHPB points to is yet to happen; and one does not know what in fact the court will decide on these review applications.  In another sense, what BHPB points to is the fact that the matters raised in these proceedings have real potential to be highly significant for its legal and business interests in respect of the Goldsworthy and Mt Newman Railways.   I accept this.  This factor militates in favour of a grant of BHPB’s application.

20                                          Unsurprisingly perhaps, Rio Tinto does not oppose the joinder and, indeed, what Rio Tinto has said strengthens BHPB’s hand in this application.  The Fortescue parties oppose the application and, apart from the matter of BHPB’s interest in the proceedings, the Fortescue parties have focussed on BHPB’s capacity to add unduly to the complexity of managing the cases. 

21                                          BHPB states that if it became a party, BHPB would ensure that there was no unnecessary duplication of submissions, and that the matter could be heard within the time allocated by the Court.  Having considered the submissions made by the parties, I propose to order in each proceeding:

1.         BHP Billiton Iron Ore Pty Ltd and BHP Billiton Minerals Pty Ltd be made parties to the application:

a.         subject to the power of the court from time to time to direct the nature and extent of their participation in the proceeding; and

b.         on condition that their written submissions not duplicate the written submissions made and filed by the Rio Tinto parties and that an appropriate time-table be proposed to this end.

22                                          I would also make further orders as to the management of these proceedings.  Further, I would propose that, so far as the NCC is concerned, there be no costs ordered in respect of its motion for leave to intervene.  So far as BHPB is concerned, I would propose to order that, in each proceeding, BHPB pay the other parties’ costs of BHPB’s motion to be joined as a party.  If any party seeks different costs orders, it should file and serve written submissions within 7 days.   

Associate:

Dated:         14 October 2010