High Court rules no derivative Crown immunity in Ports case
The High Court, comprising Gageler CJ, Gordon, Edelman, Gleeson, Beech-Jones JJ, unanimously allowed an appeal from the Federal Court, finding that derivative Crown immunity did not protect NSW Ports from competition law claims under sections 45 and 45DA (secondary boycotts for the purpose of causing SLC) of the CCA.
Justice Edelman’s introduction is worth highlighting (para 103):
“Voltaire said of the Holy Roman Empire that it was not holy, not Roman, and not an empire. The "derivative Crown immunity" at the centre of this appeal is not derivative, not an immunity, and not concerned with a single Crown. The principal question on this appeal, like in all cases in which a defence to breach of a statutory law is said to be "Crown immunity" or "derivative Crown immunity", should simply be whether the statutory law was intended by Parliament to affect a body politic.”
See further:
High Court page: Mayfield Development Corporation Pty Ltd v NSW Port Operations Hold Co Pty Ltd [2026] HCA 12 (6 May 2026)
(see also judgment summary).Federal Court (Full Court): Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd [2025] FCAFC 43 (3 April 2025)
Federal Court: Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd (No 4) [2024] FCA 538 (22 May 2024)
See also: