A COMPLICATED court case involving the federal competition regulator, the NSW government, the operator of Ports Botany and Kembla and the operator of the Port of Newcastle is headed for mediation after orders this week in the Federal Court.
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The Australian Competition and Consumer Commission (ACCC) lodged its case a year ago over the way the ports were privatised, with the Port of Newcastle having to pay massive fees for 50 years to the government - which would pass the money onto Botany/Kembla operator NSW Ports - if it chose to build and operate a container terminal.
The case has been to court on 17 days in its pre-trial phase.
On Thursday, Judge Jayne Jagot issued her latest set of orders, covering some 35 matters.
The parties were ordered to agree on the identity of a mediator by the end of January, and to attend a conference with that mediator by no later than April 3 next year.
Although the ACCC said Thursday's were "routine timetabling", a decision to settle the case by mediation would likely prevent potentially sensitive details of the Coalition government's 2013 and 2014 port privatisations being aired in open court.
The Federal Court says commercial and corporations law cases are "commonly mediated", with the "private mediation" offering "confidentiality".
"Because the parties decide and agree on the outcome of their dispute they are more likely to be satisfied with the result and to comply with what has been agreed," the court says.
The ACCC initially took NSW Ports to court, saying the relevant competition laws only applied to state governments in "limited circumstances".
NSW Ports lodged a cross-claim against Port of Newcastle and the government, and Justice Jagot ordered the two cases be heard together, with provisional trial dates from October 2020.
A spokesperson for the Port of Newcastle said the cross-claim meant Newcastle was "joined" to the main case in July.
"Since that time we have sought to resolve the matter in order to restore a level playing field in container shipping on the east coast," the spokesperson said.
"This is critical for the international competitiveness of NSW importers and exporters.
We are alleging that making these agreements containing provisions which would effectively compensate Port Kembla and Port Botany if the Port of Newcastle developed a container terminal, is anti-competitive and illegal
- ACCC chair Rod Sims launching the prosecution
"Given the inefficiencies and costs of shipping containers through Sydney, penalising exporters and importers for accessing a superior and more competitive alternative at Port of Newcastle makes no sense for NSW businesses or its economy.
"Ultimately regional NSW businesses and communities pay the price of inefficiency while these matters are debated in court."
NSW Ports declined to comment on the orders.
The parties return to court for a case-management hearing on February 10 next year.
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