East West Link contract invalid if councils win court case

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The Age: East West Link contract invalid if councils win court case, September 11, 2014, Henrietta Cook, State Political Reporter at The Age

The 10 pages of legal advice provided to Labor may look complicated, but its message is relatively straightforward.

If Moreland and Yarra councils succeed in their legal fight against the East West Link in the Supreme Court, then any contract to build the controversial project will be deemed invalid or “unenforceable”.

The inner-city councils are pursuing a judicial review of Planning Minister Matthew Guy’s June 30 decision to approve the controversial project.

They argue that the approval is invalid and “infected by jurisdictional error” because the planning process was flawed.

The legal challenge for the councils will not be heard in the Supreme Court until December 15, months after the Napthine government is expected to finalise a contract with the successful bidder and two weeks after the state election.

Former Federal Court judge Ray Finkelstein, administrative law expert Richard Niall, QC, and contract law expert Siobhan Keating were asked by the opposition to investigate the legal consequences for any East West Link contract if Mr Guy’s approval decision is deemed invalid.

They found that if Mr Guy’s decision is invalid, any deal already signed “will be beyond power”. “In such a case, no contract exists.”

Labor says because the matter is before the courts, there is no certainty that the contract is legally binding.

It has also said that if it wins the state election it will not defend any action in court and will instead support the councils’ argument. This means it is likely to succeed.

Even if legislative tweaks are needed to ensure the contract is valid, Labor has said it will not introduce it if it wins government.

The advice acknowledges that walking away from the contract could expose future governments to legal action from the successful bidders, who will have no doubt outlaid millions and millions of dollars and resources as part of the extensive tender process.

Construction of the six-kilometre road may have even started,

“There is no remedy to harm that might be caused to the contractors, either in restitution or breach of warranty of authority or some similar or like claim.”

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