The Age: Government accused of delaying tactics in East West Link Supreme Court challenge. July 11, 2014. Jane Lee, Legal Affairs Reporter for The Age
Lawyers for the Brunswick resident challenging the East West Link have accused the state government of deliberately delaying the court case until it has signed building contracts for the project.
Anthony Murphy and his legal team appeared in the Supreme Court in Melbourne on Friday to discuss arguments put forward by the state government and its planning body Linking Melbourne Authority.
Ron Merkel, QC, for Mr Murphy, described the state government’s defence as “totally deficient” because it did not detail any of the trade and commerce activities it had performed in preparation for the $6 to $8 billion road, or the publications it relied on for its business case, which appeared in the Linking Melbourne Authority’s arguments.
One of Mr Murphy’s key arguments is that the project has been based on “misleading representations” that breach consumer protection laws.
Mr Merkel told the court that the state government had taken the six weeks it had to file a defence it could have prepared in one week, though the case began around April.
“Your Honour has been told the contracts are due to be signed in late September,” he said.
“Our concern is the delay that’s occurring … that the state is misusing the process of the court and time is continuing to pass. The problem looming of not having any substantive hearing on this is becoming a real issue.”
Mr Merkel said the state’s lawyers had narrowly interpreted what they were required to produce to defend themselves. He expected them to produce a “full range of activities and publications” in their defence.
Mr Murphy’s legal team will now alter their statement of claim in an attempt to force the state to reveal more details in its altered defence.
“It’s entirely in the state’s discretion what it will publish in a formal defence and what it won’t. That is the central bias of the pleading,” Mr Merkel, a former Federal Court judge, said.
Perry Herzfeld, for the state, rejected Mr Merkel’s claims.
Mr Merkel asked Justice Clyde Croft to hear his argument to strike out part of the government’s defence before it was altered, because it relies on a “public interest immunity” to avoid revealing more information.
Justice Croft said that while the case was important, the defendants should be afforded time to alter their defences. He would then consider whether there needed to be an application to strike out any part of them: “I appreciate the need for expedition of this matter from the point of view of all the parties and the court will do everything possible to expedite the matter in a manner that’s procedurally fair to all.”
Fairfax Media reported this week that an internal assessment of the road link last March examined nine options, with the cheapest option suggesting the state would recoup just 73¢ for every $1 spent, excluding ‘‘wider economic benefits”. This compared with the best-case scenario for the project – a $1.40 return for every $1 spent – which the state government announced later that month.
The parties will next appear in court on July 22.