Court told East West Link contract should not be signed before judges decide

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The Age: Court told East West Link contract should not be signed before judges decide. September 23, 2014. Jane Lee, Legal Affairs Reporter for The Age.

The Napthine government should not be able to start building the East West Link while judges decide whether it has misrepresented its economic benefits to the public, a court has heard.

Brunswick resident Anthony Murphy lost his first attempt to prevent the state from building the $6 billion to $8 billion toll road, planned between the Eastern Freeway and the Western Ring Road, in the Supreme Court last fortnight.

Mr Murphy is appealing the decision in the Court of Appeal, arguing he was denied procedural fairness. He says Supreme Court judge Clyde Croft denied him access to state documents that could help prove his case, which meant the decision was based on incomplete facts.

Mr Murphy’s lawyers on Tuesday asked Justices Geoffrey Nettle, David Beach and Joseph Santamaria to block the government from signing a contract with its preferred bidder East West Connect in order to preserve the point of their appeal.

Ron Merkel, QC, for Mr Murphy, said it was in the public interest to ensure the government could not proceed with a motorway it says will be profitable, despite knowing that it will actually lose money.

“If they wish to build a motorway it should be based on a business case that is not unlawful,” he said.

Mr Merkel maintains that the state and its Linking Melbourne Authority misrepresented the economic benefits to the public in breach of consumer law.

An injunction would not prevent the project, but stop the government from relying on a “business case that is misleading and deceptive,” he said. “There is no other relief protective of the public if this project proceeds.”

Neil Young, QC, for the Linking Melbourne Authority, said there was no connection between alleged misrepresentations and the injunction Mr Murphy sought.

“When you think of what might address the alleged misleading statements in the summary business case … it would only be an order for publication of the correct information.”

Mr Merkel said the state could at any time publish its full business case to the public: “The government has embarked on a course of conduct … it has made this bed in which we’ve been compelled to lie.”

There was enough time for the court to decide the appeal’s outcome before the government entered caretaker mode in November, he said.

Lawyers for East West Connect – a consortium of infrastructure and tunnelling groups – are expected to present their views on Mr Murphy’s application to the court on Wednesday.

Mark Moshinksy, QC, for the state, told the court it would not sign the contract before 4.30pm on Wednesday.

Mr Young, for Linking Melbourne Authority, argued that Justice Croft had had all parties’ versions of the facts, and all the evidence available to Mr Murphy at the time, which were needed to decide the case. Any other evidence Mr Murphy hoped to include was “inconsequential and negligible”.

Mr Young had said Justice Croft had had the power to decide on the question of whether the state was carrying on a business, rather than conduct a full trial, in line with good case management: “What occurred involved no infringement to procedural fairness … particularly in regard to the way the parties embraced that process.”

The case continues.

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