A decision of the full Federal Court in October 2007 (BHP Billiton Iron Ore v NCC) has extended the scope of infrastructure facilities which may be subject to compulsory third party access under Part IIIA of the Trade Practices Act.
For the purposes of Part IIIA, 'service means a service provided by means of a facility and includes:(a) the use of an infrastructure facility such as a road or railway line…, but does not include:…(f) the use of a production process; except to the extent that it is an integral but subsidiary part of the service'.
Accordingly, a service cannot be declared (and therefore subject to third party access) if it is also a production process. The majority decision overturns previous authority on the correct approach to determining whether a service provided by means of a facility is also the use of a production process.
The case concerned a rival operator seeking access to two of BHP's railway lines in Western Australia used to transport iron ore. Justice Greenwood (with whom Justice Sundberg agreed, Justice Finkelstein dissenting), found that use of the relevant facilities was not, in this case, 'the use of a production process' because:
'Prima facie, if a production process is found on the facts to comprise integers A, B, C, D, E and F and the service sought by the third party is the use of integers B and C, the service sought by the third party is not the use of a production process as found.'
Analysis had shown that:
'Fortescue's use is not of the kind or character having regard to the production process in question that use of that part, on the facts, is use of the production process.'
As a result of the case, a service which constitutes use of only part of a production process (as opposed to the whole) will not be excluded from the possibility of declaration.
BHP has applied to the High Court for special leave to appeal.
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