Port of Newcastle has hit back at a damning Federal Court judgement of its proposed container terminal, challenging the NSW government to lift the penalties it says are blocking the project.
"Any suggestion that Port of Newcastle wouldn't proceed to build the container terminal if the restrictions were lifted is baseless and misleading," port chief executive officer Craig Carmody said on Wednesday.
Federal Court judge Jayne Jagot published a judgement on Tuesday in which she labelled the Newcastle project "fanciful" and "far-fetched".
The port says it is constrained from building the terminal by an agreement which requires it to fund state compensation payments to NSW Ports, the operators of Port Botany and Port Kembla, if Newcastle handles more than 30,000 containers a year.
The Australian Competition and Consumer Commission lost its Federal Court action against NSW Ports over the legality of the port privatisation deals.
Justice Jagot found the reimbursements were not an anti-competitive constraint on Port of Newcastle, partly because it had no prospect of being a credible player in the container market.
"Port of Newcastle maintains its real-world view that a container terminal is entirely viable, and necessary, at the port," Mr Carmody said.
"If there's any doubt we'd build the container terminal, simply lift the penalty. Enable Port of Newcastle to maximise our commercial potential freely and watch us build it."
He said NSW and international suppliers had an "appetite" for a Newcastle terminal, which would be more cost-effective than Botany for regional exporters.
Prime Minister Scott Morrison expressed support for the container terminal on a visit to the Hunter in March, but on Wednesday his office referred questions on the judgement to Treasury.
Treasury said it would be inappropriate to comment until the ACCC had decided whether to appeal.
But on Wednesday Mr Barilaro referred questions to Transport Minister Andrew Constance, whose office passed the inquiry to Treasurer Dominic Perrottet. Mr Constance said last month that the "court decision is sound and we should now all move on".
A spokesperson for Mr Perrottet said the government welcomed the Federal Court's ruling, which "endorses the transaction process conducted in respect of Port Kembla, Port Botany and the Port of Newcastle".
Mayfield Development Corporation, another player in the ports saga, is poring over the judgement before deciding whether to resume its restrictive trade practices lawsuit against NSW Ports.
MDC, half-owned by Danish shipping giant Maersk, was negotiating with the state to build a container terminal on the former BHP steelworks site before the government decided to privatise the port.
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