The Federal Court could soon publish an important judgement with ramifications for a proposed container terminal in Newcastle.
Federal Court judge Jayne Jagot last month dismissed an Australian Competition and Consumer Commission action which argued secret container fees built into the NSW government's Botany, Kembla and Newcastle port privatisations were "illegal and anti-competitive".
The reasons for the judgement have remained confidential for two weeks as lawyers for the various parties weigh up which elements of it should be redacted.
It is understood the legal teams were due to propose to Justice Jagot by 5pm on Tuesday a set of orders which would make a redacted version available to the public as soon as possible.
The NSW and federal governments, the ACCC, the NSW Ports consortium operating Botany and Kembla and the Port of Newcastle consortium have all declined to comment about the judgement as the court has ordered it remain confidential in the interim.
The decision as it stands makes it unviable for Port of Newcastle to build a freight terminal at Mayfield.
Prime Minister Scott Morrison and NSW Deputy Premier John Barilaro have expressed support for the terminal project, but its future may hang on the judgement.
The case rested, in part, on a complex legal argument about whether the NSW government could claim Crown immunity and, if so, whether NSW Ports could claim derivative immunity because it was dealing with the government.
If Justice Jagot's judgement is based on a Crown immunity argument, or an argument that a Newcastle container terminal was unlikely because it was not government policy to develop one, then the anti-competitive nature of the two deals may remain up in the air.
Waiting in the wings is Mayfield Development Corporation (MDC), a company which was negotiating with the state to build a container terminal on the former BHP steelworks site before the government decided to privatise the three ports in 2013 via long-term leases.
The lease agreements require Port of Newcastle to reimburse the government for compensation payments made to NSW Ports if Newcastle handles more than 30,000 containers a year.
MDC, half-owned by Danish shipping giant Maersk, launched a restrictive trade practices lawsuit against NSW Ports in 2019, arguing it was prevented from developing the terminal by an agreement between NSW Ports and the government which contravened the Competition and Consumer Act.
MDC and NSW Ports agreed to a Federal Court stay of proceedings in 2019 while the ACCC action ran its course, though MDC later applied unsuccessfully to lift the stay.
MDC gave the Federal Court notice that it was changing lawyers on June 28, the day before the ACCC case decision was handed down.
The reasons behind Justice Jagot's judgement could be pivotal to whether the MDC action continues.
The Newcastle Herald approached MDC for comment.
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