On Friday the project that has been the subject of much recent commentary in the context of the forthcoming Victorian parliamentary elections will return to the High Court in the case of Murphy v State of Victoria. Murphy is opposing the East West Link road and tunnel tollway. His substantive claim is that the State of Victoria and the statutory authority charged with administering the project has engaged in misleading or deceptive conduct contrary to the Australian Consumer Law. Murphy alleges that the State government’s claims and calculations about the economic benefit of the project are misleading or deceptive. He asserts that the project should therefore not proceed. The Victorian Court of Appeal found that the Murphy’s claims should be tried before the Supreme Court. The trial preparation process is expected to result in the Victorian government disclosing the document containing the so called ‘business case’ for the project, which continues to be kept secret.
A separate administrative law case is being brought by two inner Melbourne councils against the Minister for Planning and is currently at the discovery stage of the trial: the judge having decided that case is not without merit (and another case appears to be likely to be initiated shortly).
No judge, however, has yet decided to stop the project commencing. The councils elected not to seek interim relief in their case with the Victorian opposition declaring that it will not contest the administrative law challenge if it is elected in November: likely leaving the project in abeyance with an unlawful approval.
Murphy is not waiting until the election to try to stop the project. Suggestions that the election will be a ‘referendum’ on the East West Link project are not borne out by the polls. He has been refused interim relief by the Supreme Court and Court of Appeal. When he last appeared before the High Court, Justice Crennan too declined immediate interim relief, and the State government swiftly entered into contracts for the construction of the East West Link.
So why is Murphy returning to the High Court on Friday? Contrary to media reports, his case has not been dismissed or unsuccessful. On Friday Murphy’s application for special leave to the High Court to appeal the decision of the Court of Appeal to remit his case for trial without an interim injunction will be heard. From the transcripts of the first day of the High Court hearing it is clear that Murphy claims that without interim injunctive relief his case becomes futile and merely academic. He is seeking a declaration that the state did engage in misleading or deceptive conduct and an injunction to stop the state or any party from acting on any misleading or deceptive representations. Without interim measures the court will not be able to stop any misleading or deceptive representations from being acted upon. Even though contracts have been signed by the parties, Murphy is seeking to stop the state proceeding any further with the project planning and from beginning construction, including continuing with the compulsory acquisition of land necessary for the project to begin.