Catchwords:
APPEAL – where appellant alleges breach of s 45 of the Competition and Consumer Act 2010 (Cth) (CCA) by entry into Port Commitment Deeds – where issue arises as to derivative Crown immunity – where similar ACCC proceedings in Federal Court of Australia failed by reason of derivative Crown immunity – where appellant appeals decision upholding ACCC proceedings construction of Crown immunity – appeal dismissed, notices of contention not upheld
STATUTORY INTERPRETATION – consideration of Crown immunity as a general principle of statutory construction – consideration of the nature of required consequences for the Crown in order for derivative aspects of Crown immunity principle of statutory construction to apply – consideration of reasoning in Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited regarding derivative forms of Crown immunity – where relevant conduct of State of New South Wales not conduct in carrying on a business – found that CCA did not apply to conduct the subject of appellant’s claim
ESTOPPEL – where appellant had been given leave to intervene on previous appeal in ACCC proceedings – consideration of application of principles of issue estoppel to parties and intervenors in proceedings – found appellant’s participation as intervenor in ACCC proceedings did not give rise to an issue estoppel
ABUSE OF PROCESS – whether appellant litigating a question determined by the ACCC proceedings in its own Federal Court proceedings was an abuse of process – found appellant’s case was not disposed of by the ACCC proceedings and appellant entitled to challenge the existing state of the law within the confines of stare decisis – abuse of process not established
DEED OF SETTLEMENT – whether Settlement Deed entered into between the State, the appellant and other parties operated as a complete defence to the appellant’s claim – consideration of release and plea in bar terms – consideration of s 4L of the CCA requiring severance of provisions – found Settlement Deed did not bar claim