The chief executive of NSW Ports is concerned the consumer watchdog is taking the superannuation funds-owned business to court over an allegedly illegal anti-competitive deal it struck with the state government.
Marika Calfas says it's worrying the Australian Competition and Consumer Commission in December instituted proceedings in the Federal Court against NSW Ports over a deal the watchdog claims limits competition.
"Of course we were disappointed to have the ACCC action and yes it is concerning that this has arrived," Ms Calfas told AAP.
The 2013 deal worth $5.1 billion contained provisions requiring the state government to compensate NSW Ports - which operates Botany and Kembla - if a rival container terminal was built at Newcastle.
The government then passed on those compensation requirements to the owners of Newcastle Port when it privatised that facility a year later in 2014.
Ms Calfas said it was disappointing the ACCC knew about that deal at the time but was only now proceeding with court action - and only against NSW Ports.
The watchdog isn't taking the state government on, arguing it wasn't "carrying on a business" when leasing the ports.
"Obviously, it's disappointing for us to hear that and then find that four years later that the ACCC has now formed a view that further action needs to be taken, and taken against us," the NSW Ports boss said.
The ACCC has previously told AAP that while it held concerns at the time of the sale they were "largely hypothetical".
Ms Calfas says there are more factors than the controversial compensation deal preventing a container terminal being built in Newcastle.
She points to a report that suggests a new container terminal would not be needed until the mid-2040s.
The KPMG report, commissioned by NSW Ports and released on Monday, also found Port Kembla would be the most viable candidate for a second container terminal given it was closer to Sydney's booming west.
"It's not the port commitment deeds that influence whether that (Newcastle) container terminal will be successful or not," Ms Calfas said.
"We are not saying Newcastle can't go build a terminal, we're absolutely saying they can go and build a terminal, we don't have an issue with that and the market will determine whether or not that terminal would be successful."
But Newcastle Port's chief executive Craig Carmody in January told a government inquiry into the deal that his consortium would only be able to attract private investment to develop into a container terminal if the compensation arrangement was scrapped.
"None of the investors in this are prepared to give me a single dollar until that port commitment deed is out of the way. Economically it just does not work," Mr Carmody told a NSW parliamentary inquiry.
Asked if NSW Ports would have paid the $5.1 billion for the two ports without the controversial - and for years secretive - compensation agreement, Ms Calfas said: "I honestly can't answer that question."
"I would say, though, that we have got a price that we paid based on all of the package that came with it."
The KPMG report found 80 per cent of containers were delivered within 40 kilometres of Botany with a container terminal in Newcastle costing the most money to get goods to Sydney.
The report suggested a container terminal at Newcastle would introduce thousands of heavy vehicles onto Newcastle roads and the Pacific Motorway.
NSW Ports is owned by an investor consortium comprising industry superannuation funds including Australian Super and Q Super
Australian Associated Press