The Age: Brunswick resident begins East West Link appeal. September 22, 2014. Jane Lee, Legal Affairs Reporter for The Age
Anthony Murphy is continuing his fight against the East West Link project. Photo: Justin McManus
A Brunswick resident says he was denied procedural fairness in his failed legal battle against the East West Link project.
Anthony Murphy lost his initial attempt to prevent the $6-$8 billion toll road from being built in the Supreme Court two weeks ago, when Justice Clyde Croft rejected his argument that the state had misrepresented the road’s estimated cost benefits in breach of consumer protection laws.
The judge ruled that the state was not carrying out a business in preparing the funding and design of the toll road. Justices Geoffrey Nettle, Joseph Santamaria and David Beach heard Mr Murphy’s appeal to the decision on Monday.
Former Federal Court judge Ron Merkel, QC, for Mr Murphy, said Justice Croft had made a series of “fundamental errors” in dismissing the case, including denying them access to government documents that would have helped them prove their case.
The judge had preferred to decide whether the state was carrying on a business separately and sided with the state and Linking Melbourne Authority’s pleaded facts, which Mr Merkel said were incomplete.
He said his client had been denied procedural fairness and described the situation as a “catch 22, not a proper exercise of judicial power”.
Justice Croft “seemed to think the government umbrella gave them some special standing but nothing could be further from the truth … His Honour managed to distract himself from the real question at the invitation of the arguments put by the state and Linking Melbourne Authority and never (answered) the simple question: has a business commenced?”
On Tuesday, Mr Murphy is expected to ask the Court of Appeal to prevent the Napthine government from signing the contracts for the East West Link to ensure the case can be re-heard if they are successful in their appeal.
Lawyers for the state have indicated that the government hoped to sign the contracts with preferred bidder East West Connect, to allow it to start building the toll road, next week.
Mark Moshinsky, QC, for the state, said Justice Croft’s approach had been appropriate, with preliminary questions “often determined separately in advance (of a trial) for case management reasons”. If any of the questions were resolved at that stage “that’s end of the case, it’s unnecessary to get into a fact-finding exercise”.
The case continues.