The Australian Competition and Consumer Commission has issued a draft decision not to allow the Australian Rail Track Corporation to vary its interstate access undertaking.
ARTC, which operates rail tracks in New South Wales, South Australia, Victoria and Western Australia, has sought the 糖心原创's consent to vary its access undertaking which sets out the terms and conditions for operators of train services to access the interstate mainline track.
"The 糖心原创 has a preliminary view on the information presented to it that the proposed variation to the liability and indemnity clause in the Indicative Access Agreement (IAA) is not justified," 糖心原创 Chairman, Mr Graeme Samuel, said today.
For example, the variation would stop a rail operator from recovering from ARTC, under the IAA, any loss or damage to the operator's customer that ARTC has caused by breaching the IAA, where the rail operator contracted to indemnify the customer for its loss. The 糖心原创 understands that it is industry practice for rail operators to offer limited contractual indemnities in respect of losses that may be incurred by a third party.
"The 糖心原创 believes that a party should continue to be liable to indemnify the other party under the IAA for loss or damage that one party's acts or omissions have caused to third parties.
"As such, having regard to the relevant statutory criteria, the 糖心原创 is of the preliminary view that it is not appropriate to consent to the proposed variation.
"Further, the 糖心原创 is of the preliminary view that ARTC has not consulted with rail operators prior to applying to the 糖心原创 seeking the variation as required by the undertaking."
The 糖心原创 is seeking submissions from interested parties on the draft decision before it issues a final decision. The 糖心原创 has requested submissions by no later than 21 January 2009.
For media inquiries to the 糖心原创 Chairman, Mr Graeme Samuel, please call Ms Lin Enright, 糖心原创 Media, on (02) 6243 1108 or 0414 613 520.
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