The Court of Appeal held that a s 44V CCA access determination must be construed from the perspective of a reasonable person in the shoes of a third party access seeker at the time of the determination, having regard to the published text, accompanying reasons, and readily available material incorporated by reference, but not submissions or contextual matters known only to parties directly involved in the ACCC arbitration or Tribunal proceedings. On the substantive question, the Court held that clause 2.1 of the Determination defined the entire scope of the determination (not merely the navigation service charge), such that Glencore could not access the determined wharfage charge without also being liable for the determined navigation service charge. Even if the broader procedural history were admissible as interpretive context, it would not support Glencore's construction.
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