Please thank Tony, FLS & Shine Lawyers for their efforts to save us from the EWL monster.
Anthony Murphy v State & LMA.
This case has been considered in the appeal court by three judges over three days. The appeal was about procedural fairness, that the original hearings were flawed in procedure, and that therefore the case should be given the opportunity to be reheard at trial. On the last day, Wednesday 24 September, the deliberations centred on the question of the injunctions – being to stop contracts from being signed until such time as a judge could rule on them if the case is remitted back for a rehearing, and on halting the compulsory acquisition process.
Arguments centred on the appropriateness of the injunctive relief being sought, and the nexus between that relief and the assumed misleading representations. In short, injunctive relief was denied because it was deemed to go beyond what the court considered appropriate relief. They were swayed by arguments from the State, LMA and preferred bidder about the costs that would be incurred if contracts were not signed.
Consideration is now being given whether or not to appeal to the High Court for injunctive relief along the same lines.
The decision about whether or not we got a fair hearing on the pleadings, as delivered by Justice Croft in his decision on 16/9, will be handed down on Monday morning. If it is positive, Tony Murphy and his amazing team will be back in court again for a retrial arguing discovery of the business case to prove our allegation of misleading conduct.
What is very interesting is that the barrister for the preferred bidder disclosed in court that they are incurring approximately $1.43 million a month in costs which would be lost if contracts are not signed. In addition, the State revealed that some $1.4million in foreign exchange costs will be incurred if contracts are not signed by 1 October.
This comes on top of revelations in the Age on 24 September of a $500m ‘kill fee’ that the government is inserting into the contract to bind any future government to honouring the contract.
We have to ask: How much is the government willing to pay to sign these contracts before the election? Why not simply down tools and stop work now until the uncertainty of the validity of the Ministers Planning Approval is resolved in December.
To say that these costs are the reason we must sign contracts is tantamount to holding a gun to our head. And certainly not in the interests of Victorians. The decision about what is in the contract, and whether or not to sign it, sits squarely with the government. They could put a halt to this now and avoid the huge penalty costs that we Victorians will have to pay. These are costs we will need to pay for generations, all for a political cause to serve the current government. Had this project gone through due process, we would not find ourselves in this position. It is disgraceful.