court to hand down fmg rail access decision, page-32

Lack of communication will not bring us to the front with the likes of AGO & BRM in press releases such as (note they are mentioned in one of the last paragraphs).

The High Court dismissed an appeal by BHP, which claimed the use of its Mt Newman and Goldsworthy railway lines would constitute the use of its production process.

"The High Court unanimously dismissed the appeals,'' the court said in a judgement summary. "Fortescue's proposed use of the railway lines did not constitute use of BHP Billiton's iron-ore production process,'' it added.

The decision opens the door for the Federal Treasurer, Wayne Swan, to decide whether BHP and Rio will be forced to allow Fortescue and other smaller iron ore producers to access their railway lines.

The National Competition Council, whose draft recommendation said BHP and Rio should be forced to open the railway lines to third-party access, last month made a final recommendation to Mr Swan.

Mr Swan must make a decision by October 28 or the status quo - no third-party access to the railway lines - will be maintained.

Fortescue first sought access to BHP's railway lines in 2004 to help commercialise the stranded Mindy Mindy iron project it held in a joint venture with Consolidated Minerals.

A decision in Fortescue's favour would benefit smaller companies with Pilbara projects like Atlas Iron and Brockman Resources.

Fortescue has remained open to allowing third parties to use the railway and port facilities associated with its main Pilbara iron ore project at Cloud Break.