Deal: NSW Ports Operation Hold Co Pty Ltd, Port Botany Operations Pty Ltd and Port Kembla Operations Pty Ltd (NSW Ports) have been represented by Gilbert + Tobin regarding the 2013 privatisation of Port Botany and Port Kembla by the state of NSW.

Value: $5.2 billion (privatisation value).

Area: Competition and regulation.

Key players: The legal team advising NSW Ports was led by Gilbert + Tobin competition and regulation group head Elizabeth Avery with support from Geoff Petersen, Sophie Player, Sarah Lynch, Jane Kluske, Jacqueline Reid, Erin Jardine, Johnathon Geagea, Isabel Owen, Adrian Vipond, and (prior to leave of absence) Jack Coles, with counsel team of Noel Hutley SC, Dr Ruth Higgins SC, Brendan Lim and Tim Rogan.

Deal significance: As per a statement provided by Gilbert + Tobin, the legal action, which commenced at the end of 2018, “concerned agreements entered into between NSW Ports and the state of NSW as part of the terms of the $5.2 billion privatisation.

“The ACCC alleged that terms of the privatisation had an anti-competitive purpose and effect, in relation to the possibility for the development of a container terminal at Port of Newcastle,” the statement from Gilbert + Tobin said.

“The case raised important matters of principle in relation to the nature of competition in ports and infrastructure more generally, crown immunity as well as public policy issues surrounding a state’s ability to privatise its assets.”

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Commenting further, Ms Avery said: “This is an important win for our client, vindicating its decision to invest in the State of New South Wales and providing certainty for significant investment in critical infrastructure.

“[The] result was made possible by the strong collaboration and deep expertise of NSW Ports, a committed team at G+T, together with our all-star counsel team. This collaboration was critical given that a large amount of the intensive preparation for this case occurred during the challenging circumstances of lock down.”