02 March 2007
Key Points:
The meaning of a key threshold requirement for declaration under Part IIIA, whether access or increased access to the service would promote competition, will have to wait another day.
The High Court today refused Sydney Airport's application for leave to appeal from the decision of the Full Court of the Federal Court confirming declaration of airside services at Sydney Airport under the third party access regime in Part IIIA of the Trade Practices Act.
SACL' s application requested the High Court to consider the meaning of a key threshold requirement for declaration under Part IIIA, whether access or increased access to the service would promote competition.
When the Australian Competition Tribunal dealt with the declaration application, it addressed that question by asking whether declaration under Part IIIA would promote competition compared with whatever access would exist without declaration. The Full Court of the Federal Court preferred a different approach and said that the question was simply whether the very grant of access (sometimes described as access in fact) would promote competition. On either approach the Full Court found that the airside services should be declared.
Today SACL argued that the Full Court's approach was incorrect for a number of reasons including that it failed to give any meaning to the term "increased access" and that it did not pay any regard to the factual position, particularly the actual basis on which access was being permitted by SACL.
The High Court refused special leave on the basis that there were insufficient prospects of the appeal succeeding to warrant the grant of special leave. However, the High Court expressly said that it recognised the difference of opinion between the Full Court of the Federal Court and the Australian Competition Tribunal and the refusal to grant special leave in this case should not be taken as expressing any opinion on the merit of those two opposing views.
That question will be left for another day. It is a very important question because the Full Court's approach makes it very easy to satisfy the promotion of competition test; something which the High Court commented on today.
For further information, please contact Linda Evans.
