Although the high court dismissed the port's appeal, the decision said the port and Glencore both had "a significant measure of success" in the case and should bear their own costs, as should the third respondent, the Australian Competition and Consumer Commission (ACCC).

Glencore has declined to comment but the port's chief executive, Craig Carmody, said the court has "in effect confirmed" its charges are reasonable and commercially justified.

Although the ACCC said it needed to study the judgement further, it was "extremely concerned" that port users could "end up paying twice" as a result of the decision, and that "legislative measures may be necessary to address this situation".

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The saga began when the port, privatised in 2014, lifted its navigation charges by about 40 per cent in 2015, prompting Glencore to lodge a dispute with the Australian Competition and Consumer Commission (ACCC) in 2016.

The ACCC ordered the charge cut by about 20 per cent to 60.075 cents a tonne. The port then went to the Australian Competition Tribunal, which re-set the charge at $1.0058 a tonne.

Glencore objected again, and a Full Court of the Federal Court of Australia found in its favour, leading the port to successfully seek leave to appeal to the High Court, which heard evidence over two days in March and September.

Wednesday's 45-page decision noted that wharfage charges were settled, meaning it was only the navigation charge - for access to the shipping channels - under review.

The court heard that most coal from Newcastle was sold "free on board" or FOB, meaning the buyer, not the seller, paid for shipping. Some coal is sold under "cost, insurance and freight" or CIF terms paid for by the seller.

The tribunal had ruled the negotiated navigation charge only applied to CIF Glencore coal but the High Court has overturned this, saying that Glencore was "entitled" to an arbitrated outcome on FOB as well as CIS coal.

In its conclusion, the high court said: "The upshot is that the full court was wrong to discern legal error on the part of the tribunal in relation to the amount of the navigation service charge, but . . . right to discern legal error on the part . . . in relation to the scope of the . . . charge."

It said the tribunal would have to "re-determine the scope of the navigation service charge" consistently with the terms of the Ports and Maritime Administration Act 1995, a NSW law.

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As well as Glencore, the second and third respondents to the Port of Newcastle case were the two competition bodies already involved in the case, the Australian Competition Tribunal and the ACCC.

In the opening paragraphs of the decision, the High Court noted the ACCC had "chosen to present submissions which support the decision of the full Federal Court" and referred to the ACCC's "litigious posture".

In a statement responding to the decision, the ACCC said it was "concerned about the implications of yesterday's decision regarding the calculation of the navigation charge".

It said a significant part of the dispute was whether the port was allowed to recover from current port users the costs for dredging the port's shipping channel that were historically funded by previous port users.

As explained in the High Court decision, the amount the port could charge for navigation fees was set by a formula built around the cost of a theoretical competing port. In its 2018 arbitration the ACCC accepted Glencore's argument that the "maximum allowable revenue" the port could earn should be reduced to recognise the contribution from past port users, which cut the calculated asset value from $2.17 billion to $1.16 billion and set the navigation charge that Glencore would pay to 60.075 cents a tonne of coal.

When the case went to the Australian Competition Tribunal, it disagreed with the ACCC's reasoning and arrived at an asset base of $2.08 billion and a navigation charge to Glencore of $1.0058 a tonne.

Yesterday, the ACCC said this would inflate the port's returns.

"The ACCC is extremely concerned that following the High Court's decision regarding the calculation of the navigation charges at the Port of Newcastle, the law, as it stands, means Port of Newcastle Operations will receive a return on assets that it did not invest in, and some port users could end up paying twice," ACCC chair Rod Sims said.

"We will consider the judgement and its implications in full and form our own views on what legislative measures may be necessary to address this situation."

From the Port of Newcastle's perspective, its chief executive Craig Carmody said yesterday that the port had decided in January last year to provide "a substantial discount" to the $1.0058 a tonne charge, and had cut it to 81 cents a tonne for its long-term shipping customers, indexed over 10 years.

"The High Court decision in effect confirms that port charges up to the Australian Competition Tribunal levels it determined in October 2019 are reasonable and economically justified," Mr Carmody said.

"The High Court has supported a decision we know to be in the best interests of the port, our customers, our local economy and our planned opportunities to diversify for the future.

"Port charges at the Port of Newcastle represent less than 1 per cent of the delivered cost of Hunter Valley thermal coal, and coal producers do not pay the navigation service charge in question, vessel operators do."

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