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No Penalty for TasPorts in the ACCC’s first case under the new misuse of market power test 05.05.21

TasPorts is the owner and operator of the majority of ports in Tasmania, and the sole supplier of towage and pilotage services at all major ports on the island.  In its Concise Statement to the Federal Court of Australia, the ACCC alleged that TasPorts had engaged in six types of conduct with the purpose and/or the effect, and/or that was likely to have the effect, of substantially lessening competition in the markets for towage and pilotage services in northern Tasmania.

The Court made orders by consent on 4 May 2021 dismissing all allegations that TasPorts’ conduct had the ‘purpose’ or ‘actual effect’ of substantially lessening competition.  As part of the settlement, TasPorts agreed to admit that its conduct in relation to one allegation had the ‘likely effect’ of substantially lessening competition.  No penalties will be paid by TasPorts. TasPorts has provided the ACCC with an enforceable undertaking, ensuring that Engage Marine – a new entrant in Tasmania – has access to berth space for tug boats in northern Tasmania on reasonable commercial terms, access to port communication systems, and that TasPorts’ charges for regulatory functions at Port Latta are reasonable.

George Siolis, a Partner with RBB Economics in Melbourne, prepared an expert economic  report which examined the nature and extent of any anti-competitive effects of the conduct identified in the ACCC’s Concise Statement.  George was instructed by Arnold Bloch Leibler, acting for TasPorts, and was assisted by Chris Hart and Jackson McDonough in Melbourne and Dr Iestyn Williams in London.