State Government delays signing East West Link contracts amid court appeal

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Herald Sun: State Government delays signing East West Link contracts amid court appeal. Shannon Derry, Emily Portelli. 24 September 2014

The controverisal East West Link project has been stalled again with the State Government giving a fresh undertaking to hold off on signing contracts to start its construction until at least next week.

But it has warned that further delays could cost taxpayers hundreds of millions of dollars.

The Court of Appeal today refused to grant an injunction in an application brought by serial protestor Anthony Murphy who is challenging the government project.

It ruled an injunction beyond next Monday risked costing taxpayers hundreds of millions of dollars by exposing a potential foreign exchange risk of $100 million euros and interest rate fluctuations.

Mr Murphy wanted the interim injunction, stopping the government from signing contracts and preventing the compulsory acquisition of homes, pending an appeal of a recent Supreme Court decision that rejected his request to access the Napthine Government’s business case for the 18-km cross city road.

Ron Merkel, QC, acting for Mr Murphy, said taxpayers risked losing more money if they project went ahead than if an injunction was granted.

“We say this is a loss making project and that is what we seek to prove,” he said.

Mr Merkel said the project would cause a substantial loss to the state, without any real benefit.

“(The Government is) about to sign a contract that will put it into hundreds and hundreds of millions dollars loss,” he said.

Mr Merkel said nothing was stopping the government from publishing a truthful business case to the public, an action that could leave Mr Murphy with no ground for relief in the court’s eyes.

Mr Murphy – who is funding his claim with donations and pro bono legal assistance – wants the Government and Linking Melbourne Authority to pay the costs of the appeal.

The court heard he would seek leave to appeal the Court of Appeal decision in the High Court this week.

Court of Appeal Justices David Beach, Geoffrey Nettle and Joseph Santamaria refused a further application for an interim injunction pending the High Court appeal.

Mr Murphy lost his initial attempt to stop the toll road earlier this month when the Victorian Supreme Court found the state did not breach consumer protection laws with a misleading and deceptive cost- benefit estimate.

The court also rejected Mr Murphy’s request to access the Napthine Government’s business case for the 18km cross-city road.

Mr Merkel had told the Court of Appeal that preventing the “substantial loss-making project” from going ahead was in the public interest.

“(The Government is) about to sign a contract that will put it into hundreds and hundreds of millions dollars loss,” he said.

Justice Clyde Croft earlier ruled that the government’s activities were not the subject of consumer laws because, in designing the toll road, it was not carrying out a business.

Mr Merkel told the court Justice Croft made a series of fundamental errors in dismissing his client’s case, including denying him access to government documents to use as evidence.

Neil Young, QC, for Linking Melbourne Authority, said the judge was entitled to determine preliminary questions based on incomplete material to ensure delay and costs were kept to a minimum under new legislation.

He said even if Mr Murphy’s appeal was successful, the court would not order that the government – keen to lock in the contracts before the state election on November 29 – be prevented from entering into the agreements.

Mr Young said the only relevant order would be for the state to publish the correct financial information.

“I think this is an attempt just to block the project and block the contracts,” he told the court.

Taxpayers will fund a separate action against the link by Moreland and Yarra councils later this year.

shannon.deery@news.com.au

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