Murphy's law turned on its head: court case update

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By Andrew Herington

The maxim that “everything that can go wrong, will go wrong” certainly didn’t apply to Brunswick resident, Tony Murphy’s case against the East-West toll road business case when it was considered for the first time in the Supreme Court on Monday 19 May. The first procedural day for his case went well as his arguments fell neatly into place.

He alleges that the secrecy that pervades the Victorian government’s efforts to build the East-West Link has led the LMA to break consumer laws by making unsubstantiated and misleading claims in the way it is carrying on the business of tendering for construction. He argues the business case makes misleading claims about the cost benefit ratio, the net benefits and the future traffic volumes which have not been substantiated.

Court 15 in the Supreme Court was full of spectators from both sides to hear the first procedural steps in the case (called a Directions Hearing). Justice Clyde Croft was presiding and the LMA was represented by the eminent QC Allen Myers with the State government having its own barrister in addition.

Tony Murphy had a strong legal team put together by the Fitzroy Legal Service and Shine Lawyers. It was headed by Ron Merkel SC, supported by barristers Melinda Richards and Simona Gory. The hearing ran for three hours – much longer than expected.

The good news early on was that there was no dispute to Tony Murphy’s “standing” or right to bring the action and the Government did not try to “strike it out” by arguing there was no basis to the case. Ron Merkel opened the case with a long explanation of the various key points in dispute and the evidence that was being sought from the Government.

Unusually, the LMA and the Government argued that they should not have to put a full defence, and preferred to argue instead that the case should be broken into three parts as well as deferred for 90 days to give them time to assemble their defence. Their counsel said preparing the evidence would be “complex and time consuming and we wish to avoid that”.

This was given fairly short shrift as it was pointed out that they had spent months putting the business case together and it contained much of the information being requested.

Key things to come out of the hearing were:

  • The State has to advise the Court the earliest possible date in September for the contract to be signed, in order that the trial can be held before it is too late;
  • The State undertook to abide by the “model litigant” rules which means it can’t rely on legal stratagems to delay or frustrate the trial and will provide documents for discovery as required by the Civil Procedures Act;
  • A number of key questions emerged that will be central to the case – is the business case a “prospectus” that investors rely on, exactly who has been given the document and what is the misleading conduct” complained of.

In the end Justice Croft determined that the State should provide its defence and disclose the documents being sought through discovery by July 7th and the matter will return to the Supreme Court for a further Directions hearing on July 11th. At that point a date will be set for a trial.

If this is not before the date for finalising the contract, Mr Merkel gave notice that, he would be applying for an injunction to prevent the State signing the contract while the case remained unresolved.

 

 

 

 

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