Cross Examination of Bald Hill Wind Farm Director.

Next up was the cross examination of Mr Whalen by Georgia Costello SC, Council for the 5 residents in South Gippsland. Some facts that came out of this examination are that the Wind Farm was granted a permit in 2004 under the planning and environment act. Originally established by Mitzui it was later sold to Bald Hill Wind Farm in February 2017. Bald Hill Windfarm contract out the maintenance needs as well as the daily operations of the Windfarm to a group called Vestas.

A company called ICG is a fund manager and one of that companies funds owns Bald Hills Windfarm as part of its managed funds. The board of Bald Hills Windfarm comprises only two members. Mr Whalen and another person. These two make all the decision on matters but do use legal advice as needed to inform their decisions.

After Mr Whalen was sworn in and he confirmed under oath that his affidavit was true and correct Ms Costello asked Mr Whalen who the operator of the windfarm was and was answered that Bald Hill Wind Farm was not the operator of the windfarm as it was contracted out to ICG. She then asked as to whether Bald Hills Windfarm was a developer of windfarms and was answered by Mr Whalen that Bald Hills was the owner of a windfarm.

Ms Costello then asked if Bald Hills Windfarm was an owner of a windfarm but not an operator or a developer of windfarms. To this Mr Whalen stated that he believed Bald Hills owned the various licenses to operate a windfarm.

She then put to Mr Whalen that in his affidavit that he had read recently, at paragraph 13, that he had described Bald Hills Windfarm as a respected windfarm developer and operator to which he replied in the affirmative. She then put to Mr Whalen that Bald Hills Windfarm was not a developer to which he responded by appearing to say they were a developer of windfarms. Ms Costello then pressed the point and he finally accepted and stated that it was correct that Bald Hills Windfarm was not a developer or operator of windfarms.

The witness was then asked if he changed his evidence now. The witness agreed with Ms Costello on a technical level and then went on to rationalise this difference before Ms Costello moved on to a further point.

Ms Costello quoted from his affidavit that he stated that Bald Hills Windfarm was detrimentally affected by the Council finding of nuisance against Bald Hills Windfarm. Mr Whalen’s evidence stated the effects were in three areas.

Risk to the credentials of the windfarm, risk to corporate reputation, and funding risks for Bald Hills Windfarm.

Ms Costello quizzed Mr Whalen on his qualifications. He has a law degree, has worked as an investment banker, and has the ability at understanding and analysing corporate risks to which he replied “correct”.

Ms Costello then stated to Mr Whalen that the findings by Council of a nuisance led to the outcome of no action by Council in relation to Bald Hills Windfarm. Mr Whalen replied that was correct that Council did not take any direct action. He then went on to say that Council took indirect action by recommending mediation and that they were keen to deal with the matter through mediation.

Ms Costello then asked if apart from the mediation action, whether Council had taken any other actions against Bald Hills Windfarm. Mr Whalen agreed that Council had not at this point in time taken any action but it might do so in the future.

Ms Costello then asked if there was any evidence in Mr Whalen’s affidavit or anywhere, as to whether Council in the 12 months since they made their decision of nuisance had taken any action or likely to be taken against Bald Hills Windfarm. Mr Whalen stated that was correct, and no evidence existed.

When Ms Costello asked Mr Whalen whether the Clean Energy Regulator has taken any action against Bald Hills Windfarm in the 12 months since Council’s decision of a nuisance Mr Whalen said that the Regulator had written to Bald Hills Windfarm acknowledging the letter sent from Bald Hills Windfarm acknowledging the Council decision at the time of the decision but that they had not taken any further action since that time.

Ms Costello then asked Mr Whalen why he did not put that letter into evidence and he responded saying he didn’t know he had to but that the Regulator was monitoring the situation. Ms Costello reminded Mr Whalen that he had a letter from the Regulator saying they were not taking action against Bald Hills Windfarm so what was being monitored?

The discussion went around and around at this point before Mr Whalen said that he has mentioned to an investment banker that Council did not take any action.

Ms Costello then asked Mr Whalen if their was any realistic risk that the Regulator was going to take action against Bald Hills Windfarm to which Mr Whalen replied, “ I don’t know, I am not the Regulator”.

Ms Costello then discussed the level of risk and Mr Whalen’s apparent abilities at understanding risk. Mr Whalen did not seem able to describe the risk level other than to admit that it was a low risk.

Ms Costello then put to Mr Whalen that the reason he left the letter out of evidence was because it contradicted the risk. This was disagreed with by Mr Whalen.

Part 3 coming soon