Supreme Court of Victoria: Court of Appeal orders East West Link matter be reheard

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Supreme Court of Victoria: Court of Appeal orders East West Link matter be reheard. 29 September 2014

The Court of Appeal has unanimously allowed an appeal by East West Link protester Tony Murphy in his bid to stop the Victorian government from signing any contracts for the tollway before October 17.

In Murphy v State of Victoria, the Court held that a trial judge who dismissed Mr Murphy’s claim had denied him a fair hearing in determining whether the State of Victoria had contravened Australian consumer law by making misleading or deceptive representations in relation to the benefit cost ratio, net economic benefit and standard methodology of calculation of benefits of the proposed East West Link tollway.

Section 18 of the Australian Consumer Law provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. This section applies to the State so far as it carries on business.

Acting President Geoffrey Nettle and Justices Joseph Santamaria and David Beach held that the judge denied Mr Murphy a fair hearing by isolating three questions for determination before trial, and deciding those questions on the limited basis of facts admitted on the pleadings, without affording Mr Murphy discovery of documents or determining the State’s claim to be entitled to resist production of documents on the ground of public interest immunity.

The Court found that there were seriously disputed questions of fact and that the only fair way to decide them was to order discovery of documents, determine the validity of the State’s claim to public interest immunity and then try the questions on the basis of evidence in the usual way.

The Court also made a number of observations as to the legal considerations applicable to a determination whether the State made the alleged representations in carrying on a business of designing, funding, constructing and operating the tollway and in trade or commerce within the meaning of s18 of the Australian Consumer Law.

The Court remitted the matter to the Trial Division of the Supreme Court for rehearing by a different judge.

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