The High Court of Australia has dismissed the Australian Competition and Consumer Commission’s (ACCC) application for special leave to appeal the Federal Court’s decision on the sale of the Acacia Ridge intermodal terminal. Read more
Investigations into two freight rail incidents have begun and been completed this week.
The completed investigation targeted the dewiring of over a kilometre of overhead powerlines in 2018. In this case, the ATSB investigation found that the collapsible walls of the flat racks were not secured by personnel at the Acacia Ridge terminal.
When passing through Cooroy on the North Coast line in Queensland, the rear end wall of the top of a stack of flat racks was extended, leading to it becoming entangled with overhead line equipment (OHLE), including copper wire. The wires were dragged along the platform at Cooroy, where luckily no one was present, however a south-bound train was due to arrive in 30 minutes.
Another concern in the incident was train crew entering the three-metre exclusion zone around the OHLE, before the wires were isolated and earthed. Although de-energised, the cables were not electrically safe.
ATSB director transport safety Mike Walker said the incident showed the need for effective processes for emergencies and in freight terminals.
“This occurrence has highlighted the importance of having checklists for rarely conducted tasks and emergency response tasks in the rail environment, and ensuring these checklists are readily available and used by operational personnel,” said Walker.
Aurizon, which operates the Acacia Ridge terminal and the train in the incident, has updated its safety processes in response to the incident and investigation. Network manager Queensland Rail has also mandated a network control officer checklist for OHLE emergencies.
Another investigation has been opened into a freight train derailing near Lake Bathurst. The Pacific National-operated service, a loaded garbage waste train, derailed after a wheel bearing assemble on the trailing axle of the lead bogie of one of the wagons failed.
The derailment lasted for a distance of roughly 2,500m. No one was injured however there was damage to the wagon’s bogie and frame and minor damage to track infrastructure. The NSW Office of Transport Safety Investigations (OTSI) is conducting the investigation on behalf of the ATSB.
The Federal Court of Australia has upheld the acquisition of the Acacia Ridge intermodal terminal by Pacific National.
In a judgement delivered on May 6, the Full Court of the Federal Court dismissed an appeal by the Australian Competition and Consumer Commission (ACCC) against the sale of the terminal by Aurizon to Pacific National and upheld Pacific National’s cross appeal.
The appeal is the latest in a long-running legal process since the $205 million sale was announced in 2017. After the sale was announced, the ACCC blocked the sale and commenced legal action to prevent Pacific National from purchasing the terminal. A Federal Court challenge in July 2018 led to the Court dismissing the ACCC’s challenge. Subsequently, the ACCC appealed to the Full Court of the Federal Court.
The Federal Court has now found that the sale does not breach the Competition and Consumer Act. In addition, the court found that the undertaking that Pacific National agreed to, that would increase competition, was unneeded. In a statement, Pacific National welcomed the court’s decision.
“Pacific National welcomes today’s judgment and is looking forward to adding the Acacia Ridge Terminal (south of Brisbane) to its nationwide network of efficient rail freight depots, terminals and hubs.”
Aurizon also welcomed the court’s findings.
“Aurizon welcomes the certainty delivered by the Court today – for our business, our employees and our shareholders. It is almost three years since the sale of the Terminal was announced in August 2017 and two years since the ACCC initiated proceedings in the Federal Court in July 2018,” the company said in a statement.
ACCC chair Rod Simms said that the case would be looked at for what effect it has on mergers in Australia.
“We will now carefully consider the Full Court’s judgment. The ACCC will continue to consider what changes are needed to make Australia’s merger laws work in the way they need to, to safeguard the economy from highly concentrated markets.”
In the earlier Federal Court proceedings, Pacific National had unconditionally offered to not discriminate in providing access to other rail operators. The ACCC rejected this undertaking, however the court found in 2019 that the offered undertaking would have the effect of enabling competition. The ACCC had then appealed the decision based on the Court’s acceptance of the undertaking.
“Pacific National is actively working to ensure the many social, environmental and economic benefits of rail freight are realised throughout Australia’s transport supply chain, including the future Melbourne to Brisbane Inland Rail,” said Pacific National in a statement.
Aurizon and Pacific National have criticised the competition watchdog’s decision to extend its “expensive and reputationally damaging” campaign against the agreed sale of the Acacia Ridge intermodal terminal in Queensland.
The Australian Competition and Consumer Commission (ACCC) on June 27 said it would appeal the Federal Court’s rejection of its case against Aurizon selling Acacia Ridge to Pacific National.
Aurizon and Pacific National have been trying to finalise the deal since August 2017, when they announced PN would team up with Linfox to acquire Acacia Ridge and Aurizon’s Queensland Intermodal above rail business.
Initial opposition from the ACCC led to a split in that sale, with Aurizon selling Queensland Intermodal to Linfox, and PN to acquire Acacia Ridge.
An unsatisfied ACCC pressed on, however, taking its challenge of the Acacia Ridge sale to the Federal Court in July last year.
At that time the ACCC not only challenged the sale on competition grounds, but went so far as to make the pernicious accusation that PN and Aurizon had conspired to limit competition in the Australian rail market with the deal.
The ACCC dropped this component of its case before the court’s ruling, but was still unsuccessful with its competition claims, with the Federal Court approving the sale on May 15. The Court told the ACCC the competition issues it had raised were resolved with an unconditional access undertaking presented to the court by Pacific National.
Now the ACCC has announced it will again try to block the sale with an appeal of that Federal Court decision.
“This court action by the ACCC has been an expensive and reputationally damaging exercise,” a PN spokesperson told Rail Express on June 27.
“Pacific National believes the Federal Court judgement created a pro-competitive outcome for freight in Australia by guaranteeing access for new entrants to get freight from road to rail. It’s important to remember the undertakings we’ve committed to did not previously exist at Acacia Ridge Terminal and any assertion that we would somehow subtly work to discriminate against other users is simply wrong.”
Aurizon responded to the news of the ACCC’s appeal through an ASX statement.
“The ACCC is asserting they believe the Court made an error in accepting an access undertaking in relation to use of the terminal,” Aurizon said. “Aurizon does not accept this assertion and is of the view this matter was fully considered by the Federal Court and the decision handed down in May 2019 was clear and comprehensive.”
If the appeal is granted, Aurizon said the Acacia Ridge sale will have to wait until the case is finalised by the Full Bench of the Federal Court, a process which could take several months.
The ACCC said its appeal would focus on the court’s involvement in the access undertaking itself.
“Among other things, we will argue that the court made an error by accepting the undertaking, and then using it as a relevant fact when determining whether there was likely to be a substantial lessening of competition,” ACCC chairman Rod Sims said.
“This appeal is crucial to Australia’s merger regime because acceptance of undertakings of this kind by the Court means that anti-competitive mergers could be approved, and this has the potential to damage the Australian economy.”