Mr Tom Clarke

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Tom Clarke practises in commercial, regulatory and public law, particularly in energy, commercial arbitration, financial services and insolvency. 

Before coming to the Bar, Tom practised as a commercial litigator for eight years, including six years in Hong Kong with Freshfields Bruckhaus Deringer, where he practised in international arbitration, financial services, professional negligence, insolvency and joint venture disputes.  His practice there had a strong regional and cross-jurisdictional basis, including disputes in Hong Kong, China, Thailand, Japan, Singapore, Brunei, Bermuda and the British Virgin Islands. Tom also appeared and assisted in arbitrations conducted in Hong Kong, China, Singapore, London and Stockholm, and appeared as a solicitor advocate in contested matters before the Hong Kong High Court and the Court of Final Appeal. 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).

Tom is Secretary of the Energy section of the Commercial Bar Association.

Memberships

Member, Australian Institute of Energy
AMPLA (The Resources and Energy Law Association)
Australia-China Business Council

COMMERCIAL LAW:

International commercial arbitration

HKIAC emergency arbitration (2015)

Tom appeared unled 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.

Gutnick v Indian Farmers Fertiliser Cooperative Ltd [2016] VSCA 5

Tom appeared for the Indian and UAE award creditors in Joseph Gutnick’s appeal against a decision allowing enforcement of a Singapore arbitral award in Victoria.  The Court of Appeal listed the appeal for expedited hearing in the first sitting week of 2016, and dismissed Mr Gutnick’s application for leave to appeal on the basis that his public policy defence to enforcement had no real prospect of success.  (Led by Neil Young QC and Chris Horan SC)

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)

Energy / commercial arbitration

Basslink / Hydro Tasmania arbitration

Tom acted for Basslink Pty Ltd 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 alone for Basslink Pty Ltd 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 / utilities regulation

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).

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). 

SPI Electricity Pty Ltd v Australian Competition Tribunal (2012) 208 FCR 151 (FCAFC) (led by Peter Gray QC)

Re United Energy Distribution Pty Ltd (2012) 261 FLR 1 (led by Melanie Sloss SC, Dan Star)

Re Energex Limited [2010] ACompT 7; [2011] ACompT 9 (led by Peter Hanks QC)

Re Ergon Energy [2010] ACompT 11 & 12 (led by Peter Hanks QC, Peter Gray)

Tom regularly 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.

Managed investment schemes

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).

Re Willmott Forests Ltd (No 2) (2012) 88 ACSR 18

Re Willmott Forests Ltd (2012) 258 FLR 160

Re Timbercorp Securities Ltd (in liq) [2011] VSC 24 & 83

Tom has appeared for the receivers of Willmott Forests Ltd and of the Timbercorp Orchard Trust in applications seeking Court approvals to enable the realisation of assets of Willmott Forests and Timbercorp managed investment schemes (led by Wendy Harris QC).

Superannuation / equity & trusts / representative proceedings

ExxonMobil Superannuation Plan v Esso Australia & ors (2010) 29 VR 356

Tom acted for Esso Australia in a claim for rectification of a superannuation trust deed. The claim arose from drafting errors first made in 1990, which created an unintended liability of over $500 million. The proceeding was settled through a mediation before Michael McHugh QC AC that continued over a 5-month period. Tom appeared throughout the mediation and in the application in the Victorian Supreme Court to approve the settlement. Tom also acted for Esso Australia in associated professional negligence proceedings against the plan's former actuaries (led by Neil Young QC, Melanie Sloss SC, Mark Moshinsky QC).

Continuous disclosure / insolvency

John E Gill Trading Pty Ltd v Crawford; Cao v ION Ltd; Beckhouse v ION Ltd (FCA) 

Tom acted for the deed administrators of the ION group in three class action proceedings, being continuous disclosure and misleading conduct claims against ION Ltd brought by multiple groups of shareholders (led by Philip Crutchfield QC).

ASIC investigations

ASIC v Avestra Asset Management Ltd (2015, FCA – ongoing)  Tom is acting for ASIC in an application to appoint provisional liquidators and to wind up a funds management company, on account of various alleged Corporations Act breaches regarding Avestra’s role as responsible entity and trustee of retail and wholesale managed investment schemes.  (led by Jonathon Moore QC).

AWB v ASIC (FCA, VID 512/2009) Tom appeared for ASIC in relation to a privilege dispute regarding section 33 notices that ASIC served on three firms of AWB's former solicitors in relation to matters that had been the subject of the Oil-for-Food Inquiry. The application involved issues of implied waiver of privilege, issue estoppel and abuse of process. (led by Peter Hanks QC)

Admiralty / Customs

Bank of Scotland plc v The Ship ''Flightless'' (FCA)  Tom appeared unled for Customs in an Admiralty proceeding regarding an arrested vessel that was deemed to have been imported into Australia. The vessel's mortgagee and Customs contested the order of priority of payment as between customs duty, GST and the outstanding loan amounts.

PUBLIC LAW:

Broadcasting regulation

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)

Proceeds of crime / constitutional law

Bronca v County Court of Victoria (VSC)  Tom appeared unled 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.

Health / aged care

Secretary, Department of Health v DLW Health Services Pty Ltd (2016, FCAFC, judgment reserved)  Tom appeared for the Commonwealth Department in an appeal from a decision of the AAT concerning invalidity of the complex healthcare criteria under the Aged Care Funding Instrument.  (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).

Automotive / industry assistance

Automotive Components Limited v Secretary, Department of Industry and Science [2016] FCAFC 6 Tom appeared unled 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.

Robert Bosch (Australia) Pty Ltd v Secretary, DIISR (2012) 206 FCR 92 Tom appeared for the Department of Industry in the AAT and on appeal to the Federal Court and the Full Federal Court in a review relating to entitlements under the Automotive Competitiveness and Investment Scheme. (led by Peter Hanks QC)

For more information on Tom Clarke, please click here.

Liability limited by a scheme approved under Professional Standards legislation.

Formal Details 0

  • Admitted to Practice
    14 July 2000
  • First Signing Bar Roll
    20 November 2008
  • Qualifications
    LLB (Hons), BA (Hons)

Areas of Speciality

  • Arbitration & ADR
  • Banking & Finance
  • Corporations & Securities
  • Equity
  • Insolvency Law
  • Insurance & Professional Negligence
  • International Law
  • Public Law
  • Superannuation