In Brief

  • A party can seek access to a regulated railway by lodging an access proposal with a railway owner pursuant to the Railways (Access) Code 2000 (WA) (Code).
  • In the recent decision of The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd[No 2] [2014] WASC 345,1 his Honour Justice Edelman clarified the requirements of an access proposal for the purpose of section 8 of the Code.
  • The Court held that the access proposal lodged by Brockman Iron Pty Ltd (Brockman Iron) (represented by Herbert Smith Freehills) was a valid access proposal for the purposes of the Code.

The Proceedings

On 15 May 2013, Brockman Iron lodged an access proposal with The Pilbara Infrastructure Pty Ltd (TPI) seeking access to TPI’s railway. TPI commenced proceedings in the Supreme Court seeking, amongst other things, a declaration that the access proposal was invalid on the grounds that it did not comply with the requirements of section 8 of the Code.

TPI submitted that the proper construction of the Code required that a valid access proposal include, in addition to the express requirements of section 8, the following:

  1. the access seeker must intend to make an agreement for actual use of specified railway infrastructure in the immediate term, and
  2. the access seeker must intend to pay for actual use of specified railway infrastructure and other applicable matters.

Brockman submitted that the words of the Code were clear and unambiguous as to the requirements of an access proposal, and that the additional requirements alleged by TPI were outside of the ordinary meaning of the Code and were inconsistent with the express words and intention of the Code.

The Court dismissed TPI’s action and held that Brockman Iron’s access proposal was valid. The principal reason for rejecting TPI case was that TPI’s proposed construction of the relevant provisions of the Code involved a near-complete rewriting of those provisions. That is, that TPI’s alleged requirements were inconsistent with the express provisions of the Code, and further, there was no legal justification to imply such wording into the Code.

The future

Prior to this decision there was no authority concerning the operation of the Code and the precise requirements of an access proposal lodged pursuant to section 8 of the Code. This decision will assist access seekers in formulating and submitting access proposals as it provides clarity as to the requirements and boundaries of section 8. We anticipate that future access proposals will have an improved chance of being dealt with in a timely and effective manner as a result of this clarification.