Tom Clarke

Beijing Jishi Venture Capital Fund v Liu [2021] FCA 477 – Appeared for a respondent who successfully resisted enforcement of an A$30 million CIETAC award on the ground that she was not given proper notice of the arbitration (unled).

Blanalko v Lysaght Building Solutions (2017) 52 VR 198 –Successfully opposed an application to set the award aside, and stayed an application to relitigate the claim in the Supreme Court of Victoria (unled).

Gutnick v Indian Farmers Fertiliser Cooperative (2016) 49 VR 732 (VSCA) – Appeared for the Indian and UAE award creditors, successfully resisting Joseph Gutnick’s appeal against a decision allowing enforcement of a Singapore arbitral award. (led by Neil Young KC and Chris Horan KC).

Giedo van der Garde v Sauber Motorsport (2015) 317 ALR 792 (VSC); (2015) 317 ALR 786 (VSCA) – Appeared for a Formula 1 driver against the Sauber team, in the driver’s urgent application to enforce a Swiss arbitral award in Victoria, prior to the 2015 Australian Grand Prix. The application succeeded at first instance and on appeal, with the application, appeal and subsequent contempt of court proceedings heard and resolved within less than a week (unled at first instance; led by Jim Peters KC on appeal).

HKIAC emergency arbitration (2015) – Appeared in an emergency arbitration proceeding in Hong Kong. The hearing was conducted in English, Mandarin and Cantonese and on Chinese-language documentary evidence. The emergency award was made within 2 weeks of the commencement of the arbitration (unled).

Solar farm PPA dispute (2023) – Appeared for an intermediary off-taker in an arbitration relating to power purchase agreements from multiple solar farms (leading Laila Hamzi).

Electricity transmission connection dispute (2022) – Appeared for a network service provider in an expedited arbitration regarding connection of a major industrial load (leading Elizabeth Bateman).

Bass Strait petroleum royalty arbitration (2021) – Appeared for participants in a Bass Strait production licence in an arbitration concerning the interpretation and valuation of an over-riding royalty (led by Neil Young KC).

Tasmanian Gas Pipeline arbitration (2018) – Appeared for the pipeline operator in the first non-scheme pipeline access arbitration under Part 23 of the National Gas Rules (led by Neil Young KC).

Basslink v Hydro-Electric Corporation [2013] VSC 746 – Appeared for Basslink in a series of arbitrations before the Hon Murray Gleeson AC KC relating to the operation of the Basslink interconnector, and in successful court application for interim relief (led by Alan Archibald KC, Jim Delany KC).

Australian Energy Regulator v Pelican Point Power [2023] FCA 1110 and [2024] FCA 277 – Appeared for the AER, which obtained findings of contravention against the operator of a gas-fired generating unit, for failure to notify AEMO of its potentially available capacity on the date of a load shedding event in South Australia in February 2017. This was the AER’s first successful contested civil penalty case, both as to liability and penalty (led by Andrew McClelland KC at liability trial; leading Matthew Peckham at penalty trial).

AER v AGL Loy Yang Marketing [2023] FCA 1299 – Appeared for the AER, which obtained civil penalties against AGL for the failure of its Loy Yang A and Bayswater power stations to provide frequency control ancillary services (led by James Arnott SC).

AER v AGL HP 1 [2022] FCA 737

AER v HWF1 [2021] FCA 732

AER v Pacific Hydro Clements Gap [2021] FCA 733

AER v Snowtown Wind Farm Stage 2 [2020] FCA 1845

Appeared for the AER, which obtained civil penalties and other compliance relief against wind farm operators in connection with the South Australian blackout of September 2016 for failure to notify AEMO of protection settings on their wind turbines (led by Ruth Higgins SC).

SA street lighting access dispute (2019) – Appeared for the South Australian government and municipal councils in a successful challenge to tariffs charged by SA Power Networks for public lighting services. This was the first network access arbitration heard and determined by the AER (led by Sam Horgan KC).

Now acting in a related contract proceeding brought by a former consultant to the State and councils (leading Robert Williams): Trans Tasman Energy Group Pty Ltd v South Australia (2022) 141 SASR 420.

Origin Energy Electricity v AEMO [2016] Wholesale Energy Dispute Resolution Panel - Tom appeared for a coalition of South Australian wind farm operators, in a multi-party dispute over AEMO’s settlement of FCAS costs during planned outages of the Heywood interconnector (unled).

AER v Australian Competition Tribunal (2017) 255 FCR 274

Re Public Interest Advocacy Centre, Ausgrid, Endeavour Energy and Essential Energy [2016] ACompT 1, 2 & 3
Appeared for PIAC in the first limited merits review applications commenced by a consumer group against the AER’s network revenue determination (led by Sam Horgan KC).

Tom also advises the Australian Energy Markets Commission, the Victorian Department of Energy and the Energy Corporation of NSW regarding potential rule changes to the National Electricity Rules, the National Gas Rules and the National Energy Retail Rules, and the Essential Services Commission of Victoria regarding regulatory amendments under the Electricity Industry Act and Gas Industry Act.

Brighton Automotive Holdings v Honda Australia (2021) 65 VR 146 - Appeared for Honda Motor Co, in an application to stay an application for preliminary discovery against a foreign parent company on jurisdictional and comity grounds (leading Huw Watkins).

China Insurance Group Finance v Kingston (No 2) (2022, VSC, unrep) – Appeared in response to an application for the issue of a letter of request for witness evidence to be given by video-link from Hong Kong before trial, under the Hague Evidence Convention (led by Carl Moller).

China Insurance Group Finance v Kingston (No 3) [2023] VSC 6
Appeared in HK$650 million loan recovery proceeding, involving defences under Hong Kong financial services laws and the ASIC Act (led by Carl Moller)

Hu v Cheung [2022] VCC 1565 – Obtained judgment for contribution against a co-guarantor and resisted the co-guarantor’s claim for indemnity against the corporate borrower (unled).

Financial Services Royal Commission (2018) – Appeared for ANZ in the CEO round of royal commission hearings (led by Matt Collins KC, Kate Williams SC and Michael Rush KC).

ASIC v Avestra Asset Management (2017) 120 ACSR 247
Appeared for ASIC in an application for financial services injunctions and disqualification against directors of a funds management company, for numerous contraventions by Avestra as responsible entity and trustee of registered and wholesale managed investment schemes (led by Jonathon Moore KC).

MacarthurCook Real Estate Funds v APN Funds Management [2013] VSCA 239 & 24 – Tom acted for companies in the MacarthurCook group in appeals relating to the allocation of, and a put option over, units in a property investment unit trust (led by Phil Solomon KC).

Currently acting for ASIC in its first SIS Act civil penalty case, against a large not-for-profit super fund (leading Simone Kipen).

ExxonMobil Superannuation Plan v Esso Australia (2010) 29 VR 356 – Appeared for Esso Australia in a claim for rectification of a superannuation trust deed, and in professional negligence proceedings against the plan’s former actuaries. The claim arose from drafting errors first made in 1990, which created an unintended liability of over $500 million (led by Neil Young KC, Melanie Sloss SC, Mark Moshinsky KC).

Aftermarket Network Australia v Certain underwriters at Lloyd’s [2016] FCA 1402 (unled)

Amcor Flexibles Group v AIG Australia [2016] FCA 1428 (led by Jim Delany KC)

Appeared for insureds under M&A warranty and indemnity policies, in the Federal Court’s expedited insurance matters list. Aftermarket Network Australia addressed important issues as to the interaction between exclusions in the share sale agreement and the W&I policy.

Re Flexigroup [2020] ACompT 2 – Appeared for the Consumer Action Law Centre, intervening in a review of ACCC authorisation of the New Energy Tech Consumer Code, about whether signatories to the Code should be permitted to offer “buy now, pay later” finance with the sale of solar and new energy tech products (leading Matthew Peckham).

OPENetworks v MyPort [2019] FCA 486 & 1659 – Appeared for a broadband network and service provider in disputes regarding the TIO’s power to approve installations of telecommunications facilities in residential developments (leading Jordan Wright).

Regis Aged Care v Secretary, Department of Health (2018) 261 FCR 120 –Appeared for Regis in a proceeding seeking to confirm the validity of charges pronounced unlawful by the Department (led by Peter Hanks KC).

Secretary, Department of Health v DLW Health Services (2016) 246 FCR 456 – Appeared for the Commonwealth Department in an appeal overturning an AAT decision which had held the complex healthcare criteria under the aged care funding instrument to be invalid (led by Peter Hanks KC).

Automotive Components Limited v Secretary, Department of Industry and Science (2016) 237 FCR 468 –Appeared for the Department of Industry in the AAT and on appeal to the Full Federal Court, in a review upholding the Department’s decision on entitlements under the Automotive Transition Scheme (unled).