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. Tom is a member of the pool of experts for the Wholesale Energy Market Dispute Resolution Panel. He also advises the Australian Energy Markets Commission regarding 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.
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 appearing unled in an application for emergency relief before a HKIAC tribunal, 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, where he practised in international arbitration, financial services, professional negligence, insolvency and joint venture disputes. 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.
A listing of Tom's practice areas and recent cases can be found on the "Biography" page.
A selection of Tom's recent cases by practice area:
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  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).
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 AEMO  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  FCA 1013;  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  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  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 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 the Hon 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 (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  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 v APN Funds Management (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).
Aftermarket Network Australia v Certain underwriters at Lloyd’s  FCA 1402 (unled)
Amcor Flexibles Group v AIG Australia  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.
COMPETITION AND CONSUMER CREDIT
Re Flexigroup Ltd  ACompT (judgment reserved) - Tom appeared for the Consumer Action Law Centre, intervening in a review of ACCC authorisation of the New Energy Tech Consumer Code. The review concerned the extent to which signatories to the Code should be permitted to offer "buy now, pay later" finance in connection with the sale of new energy tech products (leading Matthew Peckham).
OPENetworks Pty Ltd v MyPort Pty Ltd  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 (leading Jordan Wright).
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 Ltd; Beckhouse 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 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 (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).
Sunshine Coast Broadcasters 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).