The Federal Court has dismissed an application from a Newcastle company linked to Danish shipping giant Maersk to resume its legal action against the operators of Port Botany and Port Kembla.
Mayfield Development Corporation argues it was denied the commercial opportunity to build a container terminal on the former BHP Steelworks site when the NSW government included anti-competitive financial penalties in its deals to privatise the Newcastle, Botany and Kembla ports.
It launched a case last year against NSW Ports, the consortium that entered into a 99-year lease of Botany and Kembla, but the parties agreed in August to place the matter on hold because the issues involved overlapped with a similar action being brought by the Australian Competition and Consumer Commission.
But a decision handed down by Justice Jayne Jagot in the Federal Court on Thursday shows that MDC agreed to the stay last year because it did not have litigation funding in place.
MDC applied last month to lift the stay and align its case with the ACCC action because it had now acquired legal funding.
NSW Ports, the state government and the ACCC opposed MDC's application to lift the stay, in part because the ACCC action had progressed significantly since August and the parties had agreed to hearing dates between October and December 2020.
The ACCC argued this hearing schedule would have to be abandoned if MDC wanted its case to be heard alongside the ACCC case.
Justice Jagot said in her ruling that "in case management, as with so many things in life, timing matters".
She accepted the argument from the parties to the ACCC proceeding that attempting to join the matters together now would place an "unfair and unreasonable" burden on them.
The Botany and Kembla "port commitment deeds" with the NSW government include controversial provisions that the state will compensate NSW Ports if a rival entity develops a container terminal in Newcastle.
The government later leased Newcastle to the Port of Newcastle consortium under an agreement which includes financial penalties if Port of Newcastle develops a container terminal.
The government leased the three ports for a total of almost $7 billion in 2013 and 2014 without informing Parliament about the container fees.
Maersk, through its subsidiary APM Terminals, owns a 50 per cent stake in MDC.
The ACCC argues the container fees are "illegal and anti-competitive" and is seeking pecuniary penalties and injunctions restraining the operators of Botany and Kembla from seeking compensation.
NSW Ports has filed a cross-claim against the government, which is now a respondent to the ACCC action.
Justice Jagot has ordered the ACCC, NSW Ports and NSW government to start mediation before April 3.
