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Melbourne Authority
East West Link From Done Deal to Dead End*
Murphys case
The public private partnership through which the East
West Link was to be built was said to involve the State in
carrying on a business & the representations as to the
Benefit Cost Ratio (NCR) and Net Economic Benefit
(NEB) of the project published in the Short Form of the
Business Case made were made in the course of trade
and commerce as per the ACL
It was alleged that the representations were misleading,
unless based on reasonable grounds, and that the
absence of reasonable grounds could be assumed until
evidence was adduced to the contrary
It was further stated on behalf of the Plaintiff that
further particulars would require discovery of
documents
Outcomes sought
Declarations of misleading conduct against the
defendants under section 18 of the Australian Consumer
Law
Injunctions restraining the defendants from making the
representations in trade and commerce (e.g. tendering,
seeking funding, finance) & entering into a contract with
a third party in circumstances where the representations
had been made to or in the course of the procurement
process.
I.e. to force transparency in relation to the financial (and
initially traffic modeling also) aspects of the sell & to
stop the project proceeding until such time as those
issues had been ventilated.
A short summary
Re separate questions & discovery: It is one thing to make an allegation without any
basis for it - which is plainly impermissible and quite another to make allegations - as
the appellant did in this case which ex facie were soundly based on the best
particulars which could be given until after discovery In a case like this, where ex
hypothesi the documents needed to prove the appellants allegations were within the
respondents exclusive possession or power, and the respondents refused to produce
them, the appellant not only had no option other than to plead his case as he did but
was perfectly entitled to do so. The propriety of so proceeding is established by a long
line of authority dating back to the nineteenth century.[35]
Re overarching obligation that costs be reasonable and proportionate: to foreclose
a plaintiffs opportunity of obtaining discovery from the State in order to prove a case
which is ex facie implied by so many of the documents as are presently available to
him would be to subvert the justice process. It would mean that, whenever the State
is party to litigation of this kind, it could effectively eliminate the scrutiny of executive
action which the curial process is calculated to deliver by the simple device of claiming
public interest immunity and then pleading that the time required to determine the
validity of that claim would add unacceptably to the costs and delays of the litigation.
Reflections
Case as a political case in the traditional sense,
but key message was governance for the people
not for corporations
Democratic obligations of transparency &
accountability
The power of people to exercise their political will
in unity despite disparate interests
The determination of people to engage in
complex litigation on a shoe string if there is a
sense of shared ownership & faith
The long term impact on environmental concerns