Review of Scheduled Train Paths. (a) Scheduled Train Paths will be subject to a review in accordance with this clause 9.6.
(b) ARTC may at its discretion by written notice given to the Operator cause a Scheduled Train Path to be reviewed in a bona fide manner by the parties by comparing the stated departure and arrival times for the Scheduled Train Path with the performance during the preceding continuous 3 month period of the actual Trains using or purporting to use that reviewable entitlement (“3-month history”).
(c) If on such comparison of the Scheduled Train Path with the 3-month history the departure or arrival times for a Train using or purporting to use the Scheduled Train Path differ in material respects, the parties will negotiate in good faith to amend the Scheduled Train Path so that the Scheduled Train Path reflects, as closely as is reasonably practicable, the 3- month history.
(d) Nothing in this clause 9.6 compels ARTC to offer a Train Path to the Operator under clause 9.6(c) if:
(i) such Train Path is unavailable by reason of contractual obligations owed by ARTC to any person (including the Operator);
(ii) to do so would materially adversely impact on ARTC’s ability or opportunity to efficiently and safely manage the Network; or
(iii) the Operator does not agree to pay all fees and Charges applicable to such offered Train Path.
(e) Nothing in this clause 9.6 compels the Operator to accept a Train Path offered by ARTC under clause 9.6(c) if contractual obligations owed by the Operator to any person (including ARTC) would prevent it from doing so.
