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 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:
International commercial arbitration
Blanalko Pty Ltd v Lysaght Building Solutions Pty Ltd  VSC 97 - 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).
Gutnick v Indian Farmers Fertiliser Cooperative Ltd (2016) 49 VR 732 (VSCA) - 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)
HKIAC emergency arbitration - 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.
COMMERCIAL ARBITRATION - ENERGY
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  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).
Origin Energy Electricity Ltd v Australian Energy Market Operator Ltd  Wholesale Energy Dispute Resolution Panel - Tom appeared unled 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.
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  FCAFC 79Re Public Interest Advocacy Centre, Ausgrid, Endeavour Energy and Essential Energy  ACompT 1, 2 & 3Tom acted for PIAC, in the first limited merits review applications commenced by a consumer group against the AER’s network revenue determination, and in the subsequent judicial review in the Full Federal Court. (led by Sam Horgan QC)
Re United Energy Distribution  ACompT (decision pending; led by Michael O’Bryan QC, Kristen Walker QC)
Re SA Power Networks  ACompT 11 (led by Michael O’Bryan QC).
SPI Electricity Pty Ltd v Australian Competition Tribunal (2012) 208 FCR 151 (FCAFC) (led by Peter Gray QC)
Tom also 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
ASIC v Avestra Asset Management Ltd  FCA 497 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).
MacarthurCook Real Estate Funds Ltd v APN Funds Management Ltd  VSCA 240 - 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 Pty Ltd v Certain underwriters at Lloyd’s  FCA 1402 (unled)Amcor Flexibles Group Pty Ltd v AIG Australia Ltd  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.
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. The proceeding was settled through a mediation before Michael McHugh QC AC that continued over a 5-month period. (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).
ADMIRALTY AND 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.
HEALTH AND AGED CARE REGULATION
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 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)
OTHER PUBLIC LAW MATTERS
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 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.