A Federal Court judge has lashed the companies embroiled in a long-running stoush over East Rockingham’s trouble-plagued waste-to-energy plant, branding their conduct “shameful” and hauling their representatives before the bar.
The entity behind the $511 million plant, East Rockingham Resource Recovery Facility Project Co, dragged contractors Acciona and Hitachi to court in February 2023, accusing them of unconscionable conduct for locking workers out of the site.
The privately owned East Rockingham Waste-to-Energy plant under construction near Perth.
East Rockingham RRF is demanding damages for site access refusal between February 10 and March 8, 2023, which it claims amounted to a breach of contract.
However, the contractors insist they had sufficient reason to do so.
The site has remained accessible since, with the trio coexisting in what East Rockingham RRF’s lawyer described as an “uneasy truce”.
But lawyers for the parties have continued warring before the court and behind the scenes on their behalf, having fronted 11 hearings and had two unsuccessful attempts at mediation over the past 14 months.
The conduct of the case drew the ire of Justice Craig Colvin, who used a hearing on Tuesday to lambast the deep-pocketed parties for the burden it had placed on a publicly funded resource.
He also expressed frustration at the lack of guidance on the damages sought, revealing it was almost impossible to extract from the documents before him how the alleged prejudice East Rockingham RRF suffered by being locked out of its site for a whole month should result in some kind of financial reward.
“It’s shameful really, these parties and those behind them,” he told the court.
“It costs a considerable amount for the court to deal with this and do so on an urgent basis.
“It seems to me things have got entirely out of hand.”
The parties had been bickering over the evidence exchange process, with East Rockingham RRF pushing for a discovery order over Acciona’s proposal to bypass the document-swap for witness statements and oral evidence.
In penning orders, Colvin took the extraordinary step of summoning a representative from each of East Rockingham RRF and Acciona to attend the next hearing in-person to grill them about the dispute and why the court should remain involved.
Colvin said he believed it would also assist him to form a view about further discovery.
And he indicated he was inclined to send the parties for private peace talks at their own expense.
Under the orders, East Rockingham RRF will be required to address the evidence it intends to rely on by June 28, with Acciona given until July 12 to respond.
The matter is expected to return to court on August 9.
It has been 4½ years since the parties inked a construction contract to build the facility in the industrial precinct 40 kilometres south of Perth, with Acciona and Hitachi gaining an equity stake alongside infrastructure company John Laing.
The plant is expected to treat up to 330,000 tonnes of waste and generate enough electricity to power 36,000 homes annually, with about 80 per cent of the facility’s waste to be supplied by almost a dozen surrounding local governments.
The project has been backed by taxpayers to the tune of $75 million, the lion’s share of which is a subordinated debt from government-owned green bank, Clean Energy Finance Corporation.
The construction of the plant has been plagued by issues stemming from the pandemic, delaying its completion by two years.
The facility is now expected to be operational by the end of 2024.
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