Tom Clarke Portrait

Tom Clarke

Bar roll 2008 Admitted 2000
  • Commercial Law Tort Law
  • Public Law
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Tom Clarke practises in commercial, regulatory and public law, particularly in energy, commercial arbitration and financial services.

Tom has broad experience in commercial and regulatory disputes in the national electricity and gas markets, having acted in numerous matters relating to the generation, network and retail sectors, including civil penalty enforcement matters and access disputes in both gas and electricity networks.  He also advises the Australian Energy Market Commission and the Gas Market Reform Group regarding potential rule changes to the National Electricity Rules, the National Gas Rules and the National Energy Retail Rules.

Tom has acted in high-profile applications to enforce international arbitration awards against the Sauber Formula 1 team (on an urgent basis, before the 2015 Australian Grand Prix) and against Joseph Gutnick.  He has also acted in Hong Kong and China-related arbitration proceedings, including in HKIAC arbitration proceedings, and has acted as an expert witness on questions of Hong Kong law in Australian proceedings.  Tom has also acted for ASIC in financial services enforcement matters, including matters with China and SE Asia emerging market aspects.

Before coming to the Bar, Tom practised as a commercial litigator for eight years, including six years in Hong Kong with Freshfields Bruckhaus Deringer.  Tom appeared as a solicitor advocate in contested matters before the Hong Kong High Court and the Court of Final Appeal, and in arbitrations conducted in Hong Kong, China, Singapore, London and Stockholm. Tom was lead associate in the team acting for the Brunei Investment Authority in its proceeding against HRH Prince Jefri Bolkiah to enforce an earlier settlement of its US$15 billion claim (later upheld in the Privy Council). 

Liability limited by a scheme approved under the Professional Standards Legislation

Contact

Correspondence
Chambers & Clerk

Ninian Stephen Chambers
Level 38 Room 20

140 William Street

Melbourne VIC 3000

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Jane King

03 9225 8558

Expertise

Commercial Law
  • Appellate
  • Banking & Finance
  • Class Actions
  • Commercial Arbitration
  • Competition
  • Consumer Credit
  • Consumer Law
  • Contractual Disputes
  • Corporate Insolvency
  • Corporations & Securities
  • Energy & Resources
  • Equity & Trusts
  • Insurance
  • Private International Law
  • Superannuation
Tort Law
  • Class Actions
  • Major Torts
  • Professional Negligence
Public Law
  • Administrative Law
  • Aged Care
  • Appellate
  • Commissions & Inquiries
  • Constitutional Law
  • Customs Law
  • Judicial Review

Qualifications

Qualifications

Bachelor of Laws (Hons)

Bachelor of Arts (Hons)

Admitted

Victoria

New South Wales

Hong Kong

Entitled to practise in

State and Territory Courts and Tribunals

Federal Court of Australia

High Court of Australia

Languages

Conversational Mandarin 

Reads simplified and traditional Chinese to a professional standard

Recent Cases

ENERGY AND COMMERCIAL ARBITRATION

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

Basslink / Hydro Tasmania arbitration (2013) Tom acted for Basslink in a series of arbitrations before the Hon Murray Gleeson AC QC relating to the operation of the Basslink interconnector (led by Alan Archibald QC, Jim Delany QC).

Basslink Pty Ltd v Hydro-Electric Corporation [2013] VSC 746 - On 31 December 2012, Tom appeared unled for Basslink on an urgent application in the Supreme Court of Victoria for an injunction pending the arbitration. In February 2013, after the expiry of a temporary compromise, Tom appeared on the renewed injunction application, when an injunction was granted in favour of Basslink (led by Jim Delany QC).

ENERGY REGULATION

Tom is presently acting for the AER in civil penalty proceedings arising out of the South Australian black system and blackout of September 2016 and a further load shedding event in February 2017.

SA street lighting access dispute (2019) – Tom 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 QC).

Origin Energy Electricity Ltd v Australian Energy Market Operator Ltd [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).

Australian Energy Regulator v Snowy Hydro Ltd [2014] FCA 1013; [2015] FCA 58 – Tom acted for the AER, which obtained the first civil penalty under the National Electricity Law, for a generator’s failures to comply with dispatch instructions in the National Electricity Market (led by Peter Gray QC). 

CKI Utilities Development Ltd v Australian Energy Regulator [2016] FCA 17 – Tom acted for the AER in a judicial review proceeding in which the court upheld the AER’s rejection of SA Power Networks’ proposal to introduce differential network tariffs for household users with solar generation facilities (led by Kristen Walker QC).

Australian Energy Regulator v Australian Competition Tribunal (2017) 255 FCR 274

Re Public Interest Advocacy Centre, Ausgrid, Endeavour Energy and Essential Energy [2016] ACompT 1, 2 & 3 Tom acted 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 QC). 

Tom also advises the Australian Energy Markets Commission 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.

International Commercial Arbitration

Blanalko Pty Ltd v Lysaght Building Solutions Pty Ltd (2017) 52 VR 198 – Tom appeared in applications arising from an award made by Bill Gillard QC, successfully opposing an application to set the award aside, and staying an application to relitigate the claim in the Supreme Court of Victoria (unled).

Giedo van der Garde v Sauber Motorsport (2015) 317 ALR 792 (VSC); (2015) 317 ALR 786 (VSCA)Tom 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 QC on appeal).

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

HKIAC emergency arbitration (2015) – Tom appeared in an emergency arbitration proceeding in Hong Kong, in a dispute between an Australian-resident business owner and Hong Kong/BVI investors.  The hearing was conducted in English, but on a Chinese-language agreement and documentary evidence.  The emergency award was made within 2 weeks of the commencement of the arbitration, after the emergency arbitrator had initially granted interim relief on the papers (unled).

HKIAC arbitration – IT dispute (2017) – Tom acted for an Australian-owned IT services provider in a HKIAC arbitration with a major Hong Kong corporate (unled).

BANKING AND FINANCIAL SERVICES

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

MANAGED INVESTMENT SCHEMES

ASIC v Avestra Asset Management Ltd (2017) 120 ACSR 247 – Tom acted 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.  The decision resolved a number of issues surrounding the related party dealing prohibition, as it applies to registered schemes  (led by Jonathon Moore QC).

ASIC v Project Management (Aust) Pty Ltd [2019] FCA 47  Tom appeared for ASIC in an application for disqualification of a director and shadow director of the manager of a series of land banking schemes (unled).

MacarthurCook Real Estate Funds Ltd v APN Funds Management Ltd (2013) 9 ASTLR 409 (VSCA) Tom acted for two 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 QC).

INSURANCE

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

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

Tom 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 inter-relationship between exclusions in the share sale agreement and the W&I policy.

TELECOMMUNICATIONS

OPENetworks Pty Ltd v MyPort Pty Ltd [2019] FCA 486 & 1659

Tom appeared for a broadband network and service provider in disputes regarding the TIO’s power to approve installations of telecommunications facilities in residential developments (unled).

SUPERANNUATION, EQUITY AND TRUSTS

ExxonMobil Superannuation Plan v Esso Australia (2010) 29 VR 356 – Tom acted 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 QC, Melanie Sloss SC, Mark Moshinsky QC).

CONTINUOUS DISCLOSURE AND INSOLVENCY

John E Gill Trading Pty Ltd v Crawford; Cao v ION LtdBeckhouse v ION Ltd (FCA) – Tom acted for the deed administrators of the ION group in three class action continuous disclosure claims against ION Ltd brought by multiple groups of shareholders (led by Philip Crutchfield QC).

HEALTH AND AGED CARE REGULATION

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

Secretary, Department of Health v DLW Health Services Pty Ltd (2016) 246 FCR 456 – Tom appeared for the Commonwealth Department in an appeal overturning a decision of the AAT that had held the complex healthcare criteria under the Aged Care Funding Instrument to be invalid  (led by Peter Hanks QC).

Epworth Foundation v Commonwealth (2015, FCA) – Tom appeared for Epworth in a challenge to the validity of Medicare regulations governing the Medicare-eligibility of diagnostic imaging equipment.  The proceeding settled after trial (led by Peter Hanks QC).

INDUSTRY AND R&D INCENTIVES

Automotive Components Limited v Secretary, Department of Industry and Science (2016) 237 FCR 468 – Tom 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).

PUBLIC LAW

Sunshine Coast Broadcasters Pty Ltd v ACMA (2012) 209 FCR 518 – Tom acted for the Southern Cross Media Group in a judicial review proceeding concerning the delineation of broadcasting licence areas (led by James Elliott SC).

Bronca v County Court of Victoria (VSC) – Tom appeared for the employer of a convicted fraudster, who challenged the forfeiture of his superannuation benefits on the grounds of s 109 inconsistency between Commonwealth superannuation legislation and the Confiscation Act 1997 (Vic).  The proceeding settled during trial (unled).

Publications

Memberships

Victorian Bar - Commercial Bar Association Energy Section

Member, Australian Institute of Energy

AMPLA (The Resources and Energy Law Association)

Australia-China Business Council

Member, Chartered Institute of Arbitrators