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NOTICE OF FILING
This document was lodged electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on
20/04/2016 6:45:21 PM AEST and has been accepted for filing under the Court’s Rules. Details of
filing follow and important additional information about these are set out below.
Details of Filing
Document Lodged: Defence - Form 33 - Rule 16.32
File Number: NSD757/2012
File Title: Stephen Hopkins & Anor named in the Schedule as Trustees for the Hopkins
Superannuation Fund v AECOM Australia Pty Ltd ACN 093 846 925
(formerly known as Maunsell Australia Pty Ltd)
Registry: NEW SOUTH WALES REGISTRY - FEDERAL COURT OF
AUSTRALIA
Dated: 21/04/2016 3:10:57 PM AEST Registrar
Important Information
As required by the Court’s Rules, this Notice has been inserted as the first page of the document which
has been accepted for electronic filing. It is now taken to be part of that document for the purposes of
the proceeding in the Court and contains important information for all parties to that proceeding. It
must be included in the document served on each of those parties.
The date and time of lodgment also shown above are the date and time that the document was received
by the Court. Under the Court’s Rules the date of filing of the document is the day it was lodged (if
that is a business day for the Registry which accepts it and the document was received by 4.30 pm local
time at that Registry) or otherwise the next working day for that Registry.
Filed on behalf of AECOM Australia Pty Ltd, First Respondent
Prepared by
Dr Andrew Bell SC, Elliot Hyde of Counsel and Dr Ruth Higgins of Counsel and Mark Desmond Chapple and Jayme-Lyn Hendriks of Baker & McKenzie
Law firm Baker & McKenzie
Tel +61 2 8922 5277 Fax +61 2 9225 1595
Email [email protected]
Address for service
Level 27, A.M.P. Centre, 50 Bridge Street, Sydney NSW 2000
. 2703718-v2\SYDDMS2703718-v2\SYDDMS2703718-v1\SYDDMS2650902-v1\SYDDMS2650173-v2\SYDDMS2650173-
v1\SYDDMS2506686-v1\SYDDMS
Form 33
Rule 16.32
Amended Defence to the Second Further Amended Statement of Claim
(Third Fourth Further Amended Defence)
Filed pursuant to the orders made by his Honour Justice Nicholas on [insert date]11
March 20169 July 2014
No. 757 of 2012
Federal Court of Australia
District Registry: New South Wales
Division: General
Stephen Hopkins and another as Trustees for The Hopkins Superannuation Fund
Applicants
AECOM Australia Pty Ltd (ACN 093 846 925) (formerly known as Maunsell Australia Pty
Ltd)
First Respondent
RiverCity Motorway Management Limited (Administrators appointedIn liquidation) (ACN
117 343 361)
Second Respondent
RiverCity Motorway Services Pty Ltd (Administrators appointedIn liquidation) (Receivers
and Managers appointed) (ACN 117 139 992)
Third Respondent
Part A. Contents, definitions and document identification numbers
Contents
PART A. CONTENTS, DEFINITIONS AND DOCUMENT IDENTIFICATION NUMBERS .............................................. 1
Contents .................................................................................................................................................................................... 1
Definitions ................................................................................................................................................................................. 6
Part A. Contents, definitions and document identification numbers
2
Document identification numbers ........................................................................................................................................... 6
PART B. NORTH-SOUTH BYPASS TUNNEL ............................................................................................................... 7
Dramatis personae ................................................................................................................................................................... 7
Leighton ................................................................................................................................................................................. 7
ABN AMRO ...................................................................................................................................................................... 1415
Baulderstone ........................................................................................................................................................................ 15
Bilfinger ................................................................................................................................................................................ 16
Sponsor Clients.................................................................................................................................................................... 17
RCM SPVs ....................................................................................................................................................................... 1819
AECOM Australia ................................................................................................................................................................. 19
NIEIR ............................................................................................................................................................................... 2223
Keith Long........................................................................................................................................................................ 2425
PB ........................................................................................................................................................................................ 25
HTS ..................................................................................................................................................................................... 26
Beca .................................................................................................................................................................................... 27
Mallesons......................................................................................................................................................................... 2728
Peter Hicks ...................................................................................................................................................................... 2829
Robert Morris ................................................................................................................................................................... 3435
Charles Mott ........................................................................................................................................................................ 39
Malcolm Coleman ................................................................................................................................................................ 43
Duncan Olde .................................................................................................................................................................... 4647
AECOM Australia's NSBT Work ............................................................................................................................................. 49
RCM Project Team AECOM Australia actions ....................................................................................................................... 50
Hicks' AECOM Australia Actions .......................................................................................................................................... 50
Morris' AECOM Australia Actions ..................................................................................................................................... 5657
Mott's AECOM Australia Actions .......................................................................................................................................... 60
Coleman's AECOM Australia Actions ............................................................................................................................... 6263
Olde's AECOM Australia Actions.......................................................................................................................................... 64
NIEIR's Work, NIEIR's Additional Statements, AECOM Australia's reliance and Hicks' NIEIR Actions ........................ 6768
NIEIR's Work ................................................................................................................................................................... 6768
NIEIR's delivery of NIEIR's Growth Forecasts and NIEIR's Additional Statements ............................................................... 70
AECOM Australia's reliance upon NIEIR .............................................................................................................................. 73
Hicks' NIEIR Actions ............................................................................................................................................................ 74
Additional traffic forecasters' work, conclusions and related RCM Project Team actions ............................................ 7576
Keith Long's Work and Keith Long's Conclusions ............................................................................................................. 7576
Hicks' Keith Long Actions ..................................................................................................................................................... 81
Morris' Keith Long Actions .................................................................................................................................................... 83
PB's Work and PB's Conclusions ..................................................................................................................................... 8586
Hicks' PB Actions ............................................................................................................................................................. 8990
Morris' PB Actions ................................................................................................................................................................ 91
HTS' Work and HTS' Conclusions ........................................................................................................................................ 92
Hicks' HTS Actions ............................................................................................................................................................... 99
Beca's Work, Beca's NSBT Capacity Findings and Hicks' Beca Actions .................................................................... 100101
Beca's Work ................................................................................................................................................................. 100101
Beca's NSBT Capacity Findings ................................................................................................................................... 101102
Hicks' Beca Actions ............................................................................................................................................................ 102
Part A. Contents, definitions and document identification numbers
3
Hicks' Financier and Investors Actions ............................................................................................................................... 103
Registration of Non-Tolling RCM Proceedings Applicants as RCM SPVs by Sponsor Clients ....................................... 108
'Shadow' directors and officers of Non-Tolling RCM Proceedings Applicants ................................................................ 108
NSBT Traffic Forecast Facts ................................................................................................................................................ 113
Peter Hicks' knowledge of NSBT Traffic Forecast Facts ..................................................................................................... 113
Robert Morris' knowledge of NSBT Traffic Forecast Facts ................................................................................................. 124
Charles Mott's knowledge of NSBT Traffic Forecast Facts ................................................................................................. 125
Malcolm Coleman's knowledge of NSBT Traffic Forecast Facts ......................................................................................... 126
NSBT Project Bid .................................................................................................................................................................. 134
Revised NSBT Project Bid ................................................................................................................................................... 134
Award of NSBT Concession................................................................................................................................................. 134
NSBT Project Funding .......................................................................................................................................................... 134
PDS Disclosure Obligation ............................................................................................................................................ 134135
Mallesons' RCM IPO Actions ............................................................................................................................................... 135
RCM IPO DDC ....................................................................................................................................................................... 137
RCM IPO TDDSC ................................................................................................................................................................... 138
RCM Documents ................................................................................................................................................................... 140
Instruction to prepare Summary Letter summarising Base Case ............................................................................... 142143
RCM PDS Action ................................................................................................................................................................... 149
Hicks' First PDS Confirmation ....................................................................................................................................... 149150
Hicks' Second PDS Confirmation .................................................................................................................................. 150151
Beca's PDS Summary Report .............................................................................................................................................. 151
Summary Letter and RCM Trusts Indemnity ....................................................................................................................... 151
Mallesons' Traffic Forecast Facts ........................................................................................................................................ 152
Hicks' Third PDS Confirmation ............................................................................................................................................ 153
PDS issue .............................................................................................................................................................................. 153
NSBT opening ....................................................................................................................................................................... 154
PART C. DEFENCE................................................................................................................................................... 155
Preliminary ............................................................................................................................................................................ 155
RiverCity Motorway Group ................................................................................................................................................... 155
Part A. Contents, definitions and document identification numbers
4
NSBT ..................................................................................................................................................................................... 155
PDS ........................................................................................................................................................................................ 156
Alleged issue of RCM Stapled Units to Applicants ............................................................................................................ 158
AECOM Australia's Earlier EIS Forecasts ........................................................................................................................... 158
The allegation that the Consented Material contained misleading or deceptive statements .......................................... 158
Forecasts ........................................................................................................................................................................... 158
Actual traffic ....................................................................................................................................................................... 166
Alleged misleading or deceptive Forecasts ........................................................................................................................ 166
Alleged further misleading or deceptive statements in Consented Material ........................................................................ 168
Alleged omissions from the Consented Material ................................................................................................................. 172
Alleged Contraventions by AECOM Australia .............................................................................................................. 195189
Alleged contraventions by RCMML and RCM Services ............................................................................................... 196191
Alleged negligence by AECOM Australia ...................................................................................................................... 197191
PART D. AECOM AUSTRALIA'S APPORTIONMENT DEFENCES .................................................................... 201195
Introduction .................................................................................................................................................................... 201195
AECOM Australia's Apportionment Defence - NIEIR .................................................................................................... 203197
Applicants' NIEIR Allegations ....................................................................................................................................... 203197
NIEIR's Brisbane Forecast Duties of Care .................................................................................................................... 204198
NIEIR's Brisbane Forecast Representations................................................................................................................. 207201
NIEIR's Brisbane Forecast Negligence and NIEIR's Brisbane Forecast Misrepresentations ......................................... 209202
AECOM Australia's Apportionment Defence - Peter Hicks .......................................................................................... 211205
Hicks' PDS Duties of Care ........................................................................................................................................... 211205
Hicks' PDS Representations ........................................................................................................................................ 214207
Hicks' PDS involvement, Hicks' PDS Breaches of Duty and Hicks' PDS Misrepresentations ........................................ 214208
AECOM Australia's Apportionment Defence - Sponsor Clients .................................................................................. 218212
Sponsor Clients' PDS Duties of Care ........................................................................................................................... 218212
Sponsor Clients' PDS Representations ........................................................................................................................ 224217
Vicarious Liability ......................................................................................................................................................... 225218
Sponsor Clients' PDS involvement, Sponsor Clients' PDS Breaches of Duty and Sponsor Clients' PDS Misrepresentations
.................................................................................................................................................................................... 227220
AECOM Australia's Apportionment Defence - RCM Services and RCMML ................................................................. 231223
The RCM Respondent Companies ............................................................................................................................... 231223
RCM Respondent Companies Duties of Care .............................................................................................................. 231223
AECOM Australia's Apportionment Defence - Beca ..................................................................................................... 239230
Applicants' Beca Allegations ........................................................................................................................................ 239230
Beca's PDS involvement .............................................................................................................................................. 240231
Beca's PDS Duties of Care .......................................................................................................................................... 240231
Beca's PDS Representations ....................................................................................................................................... 241232
Beca's PDS involvement and Beca's PDS Negligence ................................................................................................. 242233
Part A. Contents, definitions and document identification numbers
5
AECOM Australia's Apportionment Defence - Mallesons ............................................................................................ 244235
Applicants' Mallesons Allegations................................................................................................................................. 244235
Mallesons' PDS involvement ........................................................................................................................................ 245236
Mallesons' PDS Duties of Care .................................................................................................................................... 245237
Mallesons' PDS Representations ................................................................................................................................. 247238
Mallesons' PDS involvement and Mallesons' PDS Negligence ..................................................................................... 248239
Part A. Contents, definitions and document identification numbers
6
Definitions
A. In this Amended Defence to the Second Further Amended Statement of Claim (Third
Fourth Further Amended Defence) (T4FAD) terms are as defined in the allegations made
below or, otherwise, have the meanings defined in the Second Further Amended
Statement of Claim (SFASOC).
B. The First Respondent, AECOM Australia Pty Limited (AECOM Australia), does not make
any admissions by the use of a defined term in this TFAD4FAD, including where the
defined term is the same as, or similar to, a defined term used in the SFASOC.
Document identification numbers
C. Document identification numbers are used in this TFAD4FAD for convenience only. They
do not form part of this response by AECOM Australia to the SFASOC and are not
admissions by AECOM Australia that the identified version of the document is either the
only version of that document or the only version which may be relied upon at any trial.
Part B. North-South Bypass Tunnel
7
Part B. North-South Bypass Tunnel
Dramatis personae
Leighton
1. Leighton Contractors Pty Ltd (Leighton):
(a) is, and was at all material times, an Australian proprietary company, limited by
shares, registered in New South Wales on 28 April 1971, formerly known as
Leighton Construction Pty Limited and is able to be sued;
(b) [there is no sub-paragraph (b)];
(c) [there is no sub-paragraph (c)];
(d) prior to all material times, and by no later than April 2005:
(i) had been involved in the design and construction of, or construction works
in relation to, at least the Inner City Bypass and the Pacific Motorway,
both located in Brisbane, Queensland; and
(ii) had prepared and made bids, either in its own right or as part of a
consortium and either directly or through special purpose vehicles, in
respect of at least the Eastern Distributor (ED), the Sydney Harbour
Tunnel (SHT), the Western Orbital Motorway (M7), the Lane Cove Tunnel
(LCT), the Mitcham Frankston Motorway (MFM) and the Cross City
Tunnel (CCT) and was the successful bidder, either in its own right or as
part of a consortium and either directly or through special purpose
vehicles, in respect of, at least the M7 (the Prior Leighton Toll Road
Projects); and
(e) in the course of at least the Prior Leighton Toll Road Projects, had developed, by
no later than April 2005, and at all material times had, specialist skills and
expertise in, and knowledge and an understanding of, all, or all material, aspects
of the development of major toll road infrastructure projects, the commissioning,
co-ordinating and providing of instructions in respect of, and input into or in
connection with the preparation of traffic forecasts, reporting on those forecasts,
the preparation of financial models, the submission of bids in competitive tenders
and the raising of debt and equity to fund those projects (that expertise,
knowledge and understanding is hereinafter referred to as Toll Road Expertise);
and
(f) further to sub-paragraph (e) above, in the course of at least the Prior Leighton
Toll Road Projects, had developed, by no later than April 2005, and at all material
times had, as a "core competency", expertise in, and knowledge and an
understanding of, toll road patronage risk and the following facts, matters,
assumptions, inputs, factors, judgements, issues, risks and uncertainties involved
in traffic forecasting, and, or in the alternative, in reporting on traffic forecasts:
(i) the different scenarios and bases upon which, and the different purposes
for which, traffic forecasts can be commissioned and prepared;
(ii) further to sub-paragraph (i) above, that different traffic forecasts in respect
of the same project could, and would, or likely would, be commissioned
and, or in the alternative, prepared, depending upon whether the forecast
was to be made on the basis of, or for:
Part B. North-South Bypass Tunnel
8
(A) a worst case scenario;
(B) a realistic scenario;
(C) an optimistic scenario;
(D) governments;
(E) project sponsors, including project sponsors with other relevant
roles or financial or other interests in a successful bid and, or in
the alternative, project (such as principal construction contractor,
debt arranger and, or in the alternative, equity underwriter);
(F) lenders;
(G) institutional or wholesale equity investors;
(H) retail equity investors; or
(I) in order to win a tender;
(iii) that traffic volumes may not grow at the rate and, or in the alternative, the
times projected;
(iv) that traffic forecasters cannot guarantee that all, or necessarily any,
estimates and assumptions upon which traffic forecasts are based will, in
fact, be correct or accurate or that projected future traffic volumes or other
project outcomes will be achieved;
(v) that traffic forecasting and traffic forecasts are subject to obvious risks,
inherent risks and intrinsic uncertainties, especially in respect of what is,
or is believed to be, a large and rapidly growing city;
(vi) that traffic volumes on a future road network of a large and rapidly
growing city depend upon many factors;
(vii) further to sub-paragraph (vi) above, that traffic volumes on a future road
network of a large and rapidly growing city depend upon future population
and employment demographics, traffic and congestion levels on the road
network and future changes to the city and its road network;
(viii) that the types of, and basis for, the forecasts commissioned, the
purpose(s) for which the forecasts were to be used, and the instructions
given in relation to, and the time and budget allowed for, the commission,
are all material to the content of traffic forecasts;
(ix) that traffic forecasting:
(A) necessarily relies upon a complex set of data inputs and
assumptions;
(B) is otherwise complex; and
(C) is not a precise science;
(x) the choices and judgements to be made in traffic forecasting as to data
inputs and assumptions or, in the alternative, material data inputs and
assumptions;
Part B. North-South Bypass Tunnel
9
(xi) that each of the following are steps, assumptions and other inputs in the
traffic modelling process and methodology from and by which traffic
forecasts are usually derived:
(A) traffic count and journey time surveys;
(B) stated and revealed preference or other consumer surveys;
(C) estimates of road trips taken;
(D) assumptions as to trip purposes;
(E) estimates and assumptions pertaining to economic conditions,
population growth, employment, land use and regional economic
development;
(F) estimates and forecasts of trip origins and trip destinations and
their distributions;
(G) data assessment;
(H) assumptions as to the perceived benefits and drawbacks of
different routes and driver response to tolls under different travel
time scenarios and different traffic and travel cost conditions;
(I) assumptions as to network speeds and capacity;
(J) toll model development;
(K) trip assignment;
(L) model calibration and validation;
(M) daily expansion factors used to estimate annual average weekday
traffic (AAWT) by reference to actual or estimated average traffic
volumes for specific period(s) within that day (Expansion
Factors);
(N) “weekday to year” annualisation factors used to estimate annual
average daily traffic by reference to actual or estimated AAWT
(Annualisation Factors);
(O) base and future year estimates of traffic and travel time; and
(P) assumptions in relation to government and council plans for
roadwork development;
(xii) that current population, population growth or decline, employment, land
use, the nature and locations of population and employment opportunities
and other sources or attractors of traffic, economic development and trip
generation assumptions and forecasts are, or usually are, relevant to, and
can have a significant effect upon, growth estimates and forecast future
traffic volumes;
(xiii) that actual future traffic volumes would, or could, be affected, both directly
and indirectly, by numerous factors, many of which were external and
unable to be controlled or predicted by either the traffic forecaster or the
traffic forecaster's client(s) when providing instructions, assumptions and,
or in the alternative, inputs to the traffic forecasting process;
Part B. North-South Bypass Tunnel
10
(xiv) that the following factors could affect actual future traffic volumes, both
directly and indirectly:
(A) economic developments;
(B) demographic and economic conditions, inflation, movements in
the consumer price index, population growth, interest rates and
taxation;
(C) the pace, nature and locations of population, employment or
economic growth (or decline) in relevant area(s);
(D) industrial and residential shifts in the area(s) that the proposed
road would, or might, service;
(E) general traffic levels in the relevant area(s) and on routes to and
from the proposed road;
(F) future network changes;
(G) any failure to make anticipated or assumed network changes;
(H) the planned and possible future capacity of the proposed road and
the relevant surrounding network;
(I) the occurrence and timing of other relevant or potentially relevant
road projects;
(J) problems which might be experienced in integrating the new
road(s) into the road network;
(K) the fact, or possibility, of additional and, or in the alternative,
unexpected roadway alternatives;
(L) the quality and proximity of alternative roads and other transport
infrastructure;
(M) changing travel patterns and habits;
(N) toll rates (if applicable);
(O) the penetration of e-tolls into the marketplace (if applicable);
(P) drivers' willingness to pay tolls (if applicable);
(Q) whether the benefits offered by the proposed road (including travel
time savings) were considered by drivers to be worth any toll
payment;
(R) the correlation between speed of travel and traffic volumes at
relevant points in time;
(S) traffic levels and congestion in the relevant areas and on routes to
and from the new road;
(T) the capacity of the new road and its feeder and competing roads;
and, or in the alternative,
(U) traffic demand variability at different times of the day, week and
year;
Part B. North-South Bypass Tunnel
11
(xv) the choices and judgements that typically must be made as to the matters
set out in sub-paragraph (xiv) above;
(xvi) that unanticipated, materially lower consumer confidence and, or in the
alternative, disposable incomes and, or in the alternative, a sudden,
sharp, material and enduring decline in consumer spending would, or
could, have a material and compounding, adverse effect on actual traffic
compared to forecast traffic;
(xvii) that an unanticipated recession or material local, national or global
economic downturn(s) or crises would, or could, have a material and
compounding adverse effect on actual traffic compared with forecast
traffic;
(xviii) that an abnormal level of growth and, or in the alternative, abnormal
volatility in fuel prices would, or may, have an adverse effect on actual
traffic compared to forecast traffic;
(xix) that the proximity and quality of alternative roads and competing transport
infrastructure was relevant to, and would impact upon, actual traffic
volumes;
(xx) that existing and future government plans and policies would, or may,
have an adverse effect on actual traffic compared to forecast traffic;
(xxi) that materially increased public transport usage (in absolute terms and, or
in the alternative, relative to private vehicle usage), would have a material
and compounding adverse effect on actual traffic compared to forecast
traffic;
(xxii) that material and, or in the alternative, significant adverse changes in
network configuration compared to forecast network configuration would
have a material and compounding adverse effect on actual traffic
compared to forecast traffic;
(xxiii) that a strong and widespread reluctance, or material decline, in driver
willingness to pay tolls would have a material adverse effect on actual
traffic compared to forecast traffic;
(xxiv) that unanticipated material declines in driver capacity to pay tolls would, or
may, have a material adverse effect on actual traffic compared to forecast
traffic;
(xxv) that unanticipated lower network congestion would have an adverse and
compounding effect on actual traffic compared to forecast traffic;
(xxvi) that anticipated or possible rate of future improvements in vehicle
technology were material factors relevant to the assessment of road
capacity;
(xxvii) the choices and judgements to be made as to possible rates of future
improvements in vehicle technology insofar as relevant to capacity;
(xxviii) the relevance of reliable historical traffic data and the common
applications and limitations of that data;
(xxix) the choices and judgements to be made as to what new or additional
traffic surveys or traffic counts (if any) could, or should, be undertaken;
Part B. North-South Bypass Tunnel
12
(xxx) the available choices as between, and the advantages and disadvantages
of, forecasting traffic by reference to traffic volumes in a weekday morning
peak hour period (AM Peak) or, instead, by reference to weekday all-hour
or other multi-periods and the judgements to be made in relation thereto;
(xxxi) the uncertainties, risks and, or in the alternative, consequences of
choosing to base traffic forecasts upon AM Peak traffic volumes, rather
than all-hour or other multi-period traffic volumes;
(xxxii) the resultant need to use Expansion Factors to forecast future AAWT;
(xxxiii) the choices and judgements to be made as to the use, and impact of, and
the uncertainties and risks involved in using, Expansion Factors;
(xxxiv) why and how Expansion Factors are chosen and used;
(xxxv) the choices and judgements to be made as to the use, and impact of, and
the uncertainties and risks involved in using, Annualisation Factors;
(xxxvi) why and how Annualisation Factors are chosen and used;
(xxxvii) the inherent limitations in using data regarding other roads as a point of
comparison and guidance for forecasting future traffic volumes;
(xxxviii) the choices and judgements to be made, the uncertainties involved in, and
the inherent limitations of, trip generation estimation;
(xxxix) the choices and judgements to be made in respect of, the uncertainties
involved in, and the inherent limitations of, assumptions inputs regarding
trip purpose;
(xl) the choices and judgements to be made in respect of, the uncertainties
involved in, and the inherent limitations of, toll choice and route
predictions;
(xli) the relevance, correlation and impact of network congestion, speed of
travel, travel time savings, traffic volumes and driver willingness to pay
any tolls to, and upon, forecast traffic volumes;
(xlii) the relevance and impact of perceived and actual driver willingness to
pay, and perceived and actual driver understanding and perception of the
cost and value, of tolls;
(xliii) the impact of any inherent or other features of a toll road on the perceived
and actual driver willingness to pay, and perceived and actual driver
understanding and perception of the cost and value, of tolls, both as an
absolute and compared to alternative roads;
(xliv) the choices and judgements to be made regarding the matters set out in
sub-paragraphs (xlii) and (xliii) above and the assumptions and inputs
used as a consequence thereof;
(xlv) the choices and judgements to be made in respect of, the uncertainties
involved in, and the inherent limitations of, using behavioural surveys to
understand driver preferences in relation to proposed roads and
alternative routes;
(xlvi) the choices and judgements to be made in respect of issues relating to
actual, perceived, negative and other travel time savings;
Part B. North-South Bypass Tunnel
13
(xlvii) that uncertainties and risks inevitably increase as the forecast period
lengthens;
(xlviii) that materially lower than assumed, or forecast, population, population
growth, employment, land use, economic development and, or in the
alternative, trip generation would, or may, have a material and
compounding adverse effect on actual traffic compared to that forecast
traffic;
(xlix) that material variation in the location of assumed, or forecast, population,
population growth, employment, land use, economic development and, or
in the alternative, trip generation would, or may, have a material and
compounding adverse effect on actual traffic compared to forecast traffic;
(l) that traffic forecasters are not or, in the alternative at least typically are
not, themselves expert in estimating or forecasting population, population
growth, employment, land use and economic development and do, or
usually, need to rely on third party experts in one or more of those fields
for those estimates and forecasts;
(li) that there are obvious and inherent risks that actual future traffic volumes
will be below forecast, through no fault of the traffic forecaster, if:
(A) estimates and forecasts proved to be inaccurate either because
actual economic growth was lower and, or in the alternative,
slower than assumed or forecast, generally or in zones of
particular relevance to the proposed road;
(B) actual population and, or in the alternative, actual population
growth was different than assumed, estimated or forecast in
estimates and forecasts, generally or in zones of particular
relevance to the proposed road;
(C) actual employment and, or in the alternative, actual employment
growth was lower than assumed, estimated or forecast in
estimates and forecasts, generally or in zones of particular
relevance to the proposed road;
(D) there were unanticipated increases in actual unemployment which
were not forecast or taken into account in estimates and forecasts,
generally or in zones of particular relevance to the proposed road;
(E) actual wages and, or in the alternative, actual wages growth, was
lower than was assumed, estimated or forecast in those estimates
and forecasts, either generally or in zones of particular relevance
to the proposed road;
(F) unplanned or unexpected changes in public transport policy
negatively impacted trip matrices produced for the traffic forecasts
by making public transport more attractive; and, or in the
alternative,
(G) trip generation was lower than was assumed, estimated or
forecast in those estimates and forecasts, either generally or in
zones of particular relevance to the proposed road;
(lii) that actual future traffic volumes would be lower, and a project would or
may prove to be unsuccessful, or financially disastrous, through no fault of
Part B. North-South Bypass Tunnel
14
the traffic forecaster, if one or more of the events set out in sub-paragraph
(li) above occurred to a significant extent;
(liii) the choices, judgements and assumptions to be made in respect of, and
the nature, extent, content, scope, context and limitations of, revealed
preference and stated preference surveys;
(liv) the limitations of making comparisons with existing toll or other roads;
(lv) that there are obvious and inherent risks that a project may prove to be
unsuccessful, or financially disastrous if there were adverse external
developments, where these developments were not reasonably capable
of being predicted by the traffic forecaster at the time or were matters the
forecaster was not required to assume, or predict, within the context of
their commission;
(lvi) the scope, state, limitations and effect of the material risks that would, or
might, materially affect the accuracy of a traffic forecast;
(lvii) the extent to which the assumptions and inputs used to derive traffic
forecasts are, or are capable of being reasonably regarded as,
conservative or reasonable;
(lviii) the types of explanations, disclosures, qualifications, exclusions,
disclaimers and other limitations typically or commonly contained in a
traffic forecaster's report in respect of a proposed major new toll road; and
(lix) the inherent complexities involved in such traffic reports,
(that expertise, knowledge and understanding is hereinafter referred to as Traffic
Forecasting Expertise).
Particulars
1. Schedule A. Details of Respondents/Participants. North-South
Tunnell [sic]. Response to Invitation for Expression of Interest
[RCG.001.001.3541].
2. Schedule D.3 Commercial Issues. North-South Tunnell [sic].
Response to Invitation for Expression of Interest
[RCG.001.001.3412].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf of,
Leighton.
ABN AMRO
2. RBS Group (Australia) Pty Limited (formerly ABN AMRO Australia Limited) (ABN
AMRO):
(a) is, and was at all material times, an Australian proprietary company, limited by
shares, registered in New South Wales on 7 January 1971, and is able to be
sued;
(b) [there is no sub-paragraph (b)];
Part B. North-South Bypass Tunnel
15
(c) [there is no sub-paragraph (c)]; and
(d) prior to all material times, and by no later than April 2005:
(i) had prepared and made, or advised in respect of, bids, either in its own
right or as part of a consortium, and either directly or through special
purpose vehicles, in respect of at least the M7, the LCT, the MFM and the
CCT and was the successful bidder, either in its own right or as part of a
consortium and either directly or through special purpose vehicles, in
respect of, at least the LCT and the MFM (Prior ABN AMRO Toll Road
Projects); and
(ii) in the course of at least the Prior ABN AMRO Toll Road Projects, had
developed, and at all material times had, as a "core competency",
expertise in, and knowledge and an understanding of, toll road patronage
risk and both Toll Road Expertise and Traffic Forecasting Expertise.
Particulars
1. Schedule A. Details of Respondents/Participants. North-South Tunnell
[sic]. Response to Invitation for Expression of Interest
[RCG.001.001.3541].
2. Schedule D.3 Commercial Issues. North-South Tunnell [sic].
Response to Invitation for Expression of Interest [RCG.001.001.3412].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, Leighton, and or, in
the alternative, ABN AMRO.
Baulderstone
3. Lend Lease Building Contractors Pty Limited (formerly, Baulderstone Pty Limited and
Baulderstone Hornibrook Pty Limited) (Baulderstone):
(a) is and was at all material times an Australian proprietary company, limited by
shares, registered in New South Wales on 8 June 1983, and is able to be sued;
(b) [there is no sub-paragraph (b)];
(c) [there is no sub-paragraph (c)]; and
(d) prior to all material times, and by no later than April 2005:
(i) had prepared and made bids, either in its own right or as part of a
consortium, and either directly or through special purpose vehicles, in
respect of at least the M7, the LCT, the MFM and the CCT and was the
successful bidder, either in its own right or as part of a consortium and
either directly or through special purpose vehicles, in respect of, at least
the CCT (Prior Baulderstone Toll Road Projects); and
(ii) in the course of at least the Prior Baulderstone Toll Road Projects, had
developed, and at all material times had, as a "core competency",
expertise in, and knowledge and an understanding of, toll road patronage
risk and both Toll Road Expertise and Traffic Forecasting Expertise.
Part B. North-South Bypass Tunnel
16
Particulars
1. Schedule A. Details of Respondents/Participants. North-South Tunnell
[sic]. Response to Invitation for Expression of Interest
[RCG.001.001.3541].
2. Schedule D.3 Commercial Issues. North-South Tunnell [sic].
Response to Invitation for Expression of Interest [RCG.001.001.3412].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, Leighton, and or, in
the alternative, ABN AMRO and, or in the alternative, Baulderstone.
Bilfinger
4. Bilfinger Re Asset Management Project Investments Australia Pty Limited (formerly,
Bilfinger Berger Project Investments Pty Limited and Bilfinger Berger Concessions Pty
Limited) (Bilfinger):
(a) is, and was at all material times, an Australian proprietary company, limited by
shares, registered in New South Wales on 18 March 1992 and is able to be sued;
(b) [there is no sub-paragraph (b)];
(c) [there is no sub-paragraph (c)]; and
(d) prior to all material times, and by no later than April 2005:
(i) had prepared and made bids, either in its own right or as part of a
consortium and either directly or through special purpose vehicles, in
respect of at least the M7, the LCT and the CCT and was the successful
bidder, either in its own right or as part of a consortium and either directly
or through special purpose vehicles, in respect of, at least the CCT (Prior
Bilfinger Toll Road Projects); and
(ii) in the course of at least the Prior Bilfinger Toll Road Projects, had
developed and, at all material times had, as a "core competency",
expertise in, and knowledge and an understanding of, toll road patronage
risk and both Toll Road Expertise and Traffic Forecasting Expertise.
Particulars
1. Schedule A. Details of Respondents/Participants. North-South Tunnell
[sic]. Response to Invitation for Expression of Interest
[RCG.001.001.3541].
2. Schedule D.3 Commercial Issues. North-South Tunnell [sic].
Response to Invitation for Expression of Interest [RCG.001.001.3412].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, Leighton, and or, in
the alternative, ABN AMRO and, or in the alternative, Baulderstone
and, or in the alternative, Bilfinger.
Part B. North-South Bypass Tunnel
17
Sponsor Clients
5. By no later than in or about April 2005, and at all material times thereafter, Leighton, ABN
AMRO, Baulderstone and Bilfinger (the Sponsor Clients), acting together as an
unincorporated joint venture, had, between them, agreed and determined to:
(a) prepare and cause a bid (an NSBT Project Bid) to be submitted to the Brisbane
City Council (BCC) to finance, design, construct and operate the 'North-South
Bypass Tunnel' (also known as the CLEM 7 Tunnel or the RiverCity Motorway)
(the NSBT) in Brisbane, Queensland (the NSBT Project); and
(b) utilise special purpose project companies (RCM SPVs), which the Sponsor
Clients would cause to be registered from time to time for those purposes, to,
between them:
(i) submit an NSBT Project Bid;
(ii) hold the concession to undertake and complete the NSBT Project and
operate the NSBT (the NSBT Concession) if the NSBT Project Bid
succeeded; and
(iii) if they were awarded the NSBT Concession:
(A) raise debt required to undertake and complete the NSBT Project
and operate the NSBT;
(B) raise equity required to undertake and complete the NSBT Project
and operate the NSBT through a public offering of securities (an
RCM IPO); and
(C) undertake and complete the NSBT Project,
(the Joint RCM Plan).
Particulars
The Joint RCM Plan is identified in the following documents:
1. North South Bypass Tunnel - Position Paper prepared on or about 12
April 2005 [RCG.001.001.1794].
2. Executive Summary North-South Tunnell [sic]. Response to Invitation
for Expression of Interest [RCG.001.001.3593].
3. Schedule A. Details of Respondents/Participants. North-South Tunnell
[sic]. Response to Invitation for Expression of Interest
[RCG.001.001.3541].
4. Schedule D.3 Commercial Issues. North-South Tunnell [sic].
Response to Invitation for Expression of Interest [RCG.001.001.3412].
5. Schedule D.4 Commitment to Procurement Process. North-South
Tunnell [sic]. Response to Invitation for Expression of Interest
[RCG.001.001.3365].
6. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
Part B. North-South Bypass Tunnel
18
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
6. By no later than in or about April 2005, and at all material times thereafter, as part of, and
in furtherance of, the Joint RCM Plan:
(a) Leighton had agreed with the other Sponsor Clients to be, and ultimately became,
an equity underwriter of the NSBT Project Bid (either directly or via a related
company) and, in a joint venture with Baulderstone, the design and construct
contractor and operations and maintenance contractor for the NSBT Project if and
when the NSBT Project Bid succeeded;
(b) ABN AMRO had agreed with the other Sponsor Clients to be, and ultimately
became, an equity underwriter and underwriter financial adviser, construction and
term debt arranger and underwriter for the NSBT Project Bid and the NSBT
Project;
(c) Baulderstone had agreed with the other Sponsor Clients to be, and ultimately
became, an equity underwriter for the NSBT Project Bid (either directly or via a
related company) and, in a joint venture with Leighton, the design and construct
contractor and operations and maintenance contractor for the NSBT Project if and
when the NSBT Project Bid succeeded; and
(d) Bilfinger had agreed with the other Sponsor Clients to be, and ultimately became,
an equity underwriter for the NSBT Project Bid (either directly or via a related
company).
Particulars
1. North South Bypass Tunnel - Position Paper prepared on or about 12
April 2005 [RCG.001.001.1794].
2. Executive Summary North-South Tunnell [sic]. Response to Invitation
for Expression of Interest [RCG.001.001.3593].
3. Schedule A. Details of Respondents/Participants. North-South Tunnell
[sic]. Response to Invitation for Expression of Interest
[RCG.001.001.3541].
4. Schedule D.3 Commercial Issues. North-South Tunnell [sic].
Response to Invitation for Expression of Interest [RCG.001.001.3412].
5. Schedule D.4 Commitment to Procurement Process. North-South
Tunnell [sic]. Response to Invitation for Expression of Interest
[RCG.001.001.3365].
6. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
RCM SPVs
7. Between October and December 2005, the Sponsor Clients caused each of the following
companies (together, the RCM Group) to be registered as RCM SPVs in furtherance of
the Joint RCM Plan:
Part B. North-South Bypass Tunnel
19
(a) RiverCity Motorway Pty Limited (RCM Operations) was registered on 14 October
2005;
(b) RCM Services, RiverCity Motorway Asset Nominee Pty Limited (RCM Asset),
RiverCity Motorway Finance Pty Limited (RCM Finance) and RiverCity Motorway
Construction Pty Limited (RCM Construction) were each registered on 15
November 2005;
(c) RiverCity Motorway Holdings Pty Limited (RCM Operations 2) was registered on
24 November 2005;
(d) RiverCity Motorway Management Limited (RCMML) was registered on 29
November 2005; and
(e) RiverCity Motorway Asset Nominee 2 Pty Limited (RCM Asset 2) was registered
on 2 December 2005.
8. Flow Tolling Pty Limited (Flow Tolling) was subsequently registered as an RCM SPV on
16 January 2009 in furtherance of the Joint RCM Plan.
9. In the remainder of this TFAD4FAD:
(a) each of the Sponsor Clients and each member of the RCM Group (once
registered), operating together as an unincorporated joint venture in furtherance
of the Joint RCM Plan, are collectively referred to as the RCM Consortium;
(b) the members of the RCM Group other than RCMML are collectively referred to as
Non-Tolling RCM Proceedings Applicants;
(c) the Non-Tolling RCM Proceedings Applicants and Flow Tolling are collectively
referred to as the RCM Proceedings Applicants;
(d) a reference to a person or company 'acting for' one or more other person(s) or
company(ies) is a reference to that person or company 'acting for and on behalf
of and, or in the alternative, for the benefit of', that other person or company; and
(e) a reference to a RCM SPV is a reference to that RCM SPV once registered.
AECOM Australia
10. In or about early April 2005:
(a) the Sponsor Clients, both on their own behalf and acting for each yet-to-be
registered RCM SPV, engaged AECOM Australia (AECOM Australia's NSBT
Commission) to provide professional traffic forecasting services (AECOM
Australia's NSBT Work) in connection with the NSBT Project; and
(b) the Sponsor Clients, both on their own behalf and acting for each yet-to-be
registered RCM SPV, and AECOM Australia agreed that they would subsequently
enter into a written contract which would govern AECOM Australia's NSBT
Commission.
11. AECOM Australia and the Sponsor Clients, both on their own behalf and acting for each
yet-to-be registered RCM SPV, subsequently agreed that AECOM Australia's NSBT
Commission would be governed by the terms of a written agreement dated 4 April 2005
(the Original NSBT Consultancy Agreement).
Part B. North-South Bypass Tunnel
20
Particulars
The Original NSBT Consultancy Agreement [ACM.002.002.0247] is in
writing, dated 4 April 2005, and was executed on or about 14 July 2005.
AECOM Australia will refer to the terms of the Original NSBT Consultancy
Agreement at any trial as if they are set out in full herein.
12. The Original NSBT Consultancy Agreement was entered into, or purportedly entered into,
by the Sponsor Clients on their own behalf and acting for RCM SPV entities which
became the RCM Group and Flow Tolling, and, in the premises, was a pre-registration
contract within the meaning of section 131 of the Corporations Act 2001 (Cth) (the
Corporations Act).
13. By or under the Original NSBT Consultancy Agreement:
(a) AECOM Australia was required to:
(i) use its best endeavours to complete the Services as defined (the
Services) (clause 5(a)); and
(ii) exercise the same degree of skill, care and diligence normally exercised
by members of the relevant profession performing services of a similar
nature to the Services (clause 5(b));
(b) the Services were to be provided, and the "Brisbane North South Bypass Tunnel
Traffic and Transport Analyses Project Outputs", as defined, were to be prepared,
by AECOM Australia acting for the Sponsor Clients and any RCM SPV which
submitted a NSBT Project Bid and was awarded the NSBT Concession and any
RCM SPV which was a related body corporate or affiliate of any such RCM
SPV(s) (Special Condition clause 1.1);
(c) all information, documents and other particulars relating to the requirements of
the RCM Consortium in respect of traffic forecasting for the NSBT and the NSBT
Project would be made available to AECOM Australia as soon as practicable
(clause 6(a));
(d) AECOM Australia was entitled to timely written directions, instructions, decisions
and information sufficient to, amongst other things, facilitate the provision of the
Services by AECOM Australia (clause 6(c));
(e) where the RCM Consortium was to provide specific services in relation to the
NSBT Project, "whether by gathering and providing information or organising,
supervising and controlling activities or information or the like" the RCM
Consortium was to provide such services to satisfy the requirements of the NSBT
Project (clause 6(f));
(f) Peter Hicks had authority to act for the RCM Consortium and Flow Tolling for all
purposes in connection with, the NSBT Project and in accordance with all
provisions of the Original NSBT Consultancy Agreement, subject only to relevant
legislation and administrative procedures (clause 8);
(g) AECOM Australia's liability arising out of the performance of the Services was
limited to those damages which are directly caused by any negligent act, error or
omission by AECOM Australia in carrying out the Services (clause 12.1);
(h) the maximum liability of AECOM Australia arising out of the performance or non-
performance of the Services, whether under the law of contract, tort, breach of
statutory duty or otherwise, was further limited to $5 million, unless AECOM
Part B. North-South Bypass Tunnel
21
Australia's liability was a result of AECOM Australia's recklessness, wilful
misconduct, gross negligence, bad faith or fraud (the Liability Cap) (clause
12.2(b) and the Annexure to the General Conditions of Engagement, as amended
by the Special Conditions);
(i) the Liability Cap was to be further reduced to such sum as AECOM Australia
ought reasonably pay on the basis that all other parties providing design,
management or financial services for the NSBT Project or any part thereof were
deemed to have paid such contribution which it would be just and equitable for
them to pay having regard to the extent of their responsibility for any loss or
damage (clause 12.2);
(j) AECOM Australia shall be deemed to have been discharged from all liability in
respect of the Services, whether under the law of contract, tort or otherwise, 24
months after completion of the Services (the Original Claims Discharge Date)
(clause 12.3); and
(k) anyone relying on information provided by AECOM Australia shall accept full
responsibility and shall hold AECOM Australia harmless for the impacts on the
traffic forecasts or the earnings from the NSBT arising from changes in external
factors such as changes in government policy on pricing of fuels, road pricing
generally, alternate modes of transport or construction of other means of
transport, the behaviour of competitors or changes in the owner's policy affecting
the operation of the project (Special Condition 1.6).
14. In or about June 2005, the Original NSBT Consultancy Agreement was amended, by
mutual agreement between AECOM Australia and the Sponsor Clients, on their own
behalf and acting for each yet-to-be registered RCM SPV, so that, for the entire term of
the NSBT Concession, the analysis, advice, assumptions and forecasts, of population,
population growth, employment, land use, economic indicators, economic development,
trip generation and distribution of origins and destinations of various relevant journey
types, analysis of and inputs into value of time modelling and estimates of toll diversion,
analysis of market capture and traffic growth on NSBT feeder and competing routes and
relevant sensitivity testing thereof, which were required as material inputs into AECOM
Australia's modelling of future NSBT traffic volumes, would be obtained by the RCM
Consortium from National Institute of Economics and Industry Research Pty Limited
(NIEIR) for its use, and for use by AECOM Australia, rather than by AECOM Australia
retaining NIEIR as a subcontractor to AECOM Australia, as originally contemplated by
the Original NSBT Consultancy Agreement (the NIEIR Amendment).
Particulars
1. Email dated 17 May 2005 from Peter Hicks to Alan Broadbent and
others for and on behalf of AECOM Australia, Dr Craig Shepherd, for
and on behalf of NIEIR, Ben Cooper and others [ACM.001.038.6102],
with attachment being a proposal from NIEIR in relation to the NSBT
Project created on or about 17 May 2005, [ACM.001.038.6105].
2. Letter from Dr Craig Shepherd, for and on behalf of NIEIR, to the
Sponsors dated 30 June 2005, [NIR.001.001.0001].
3. Email from Thao Oakey to Dr Craig Shepherd sent at 2.45pm on 30
June 2005 entitled “NIEIR mandate letter”, [NIR.001.002.0001] with
attachment [NIR.001.002.0002].
4. NIEIR Technical Note on 2004v2.doc, [ACM.001.015.3398].
Part B. North-South Bypass Tunnel
22
5. 2011 NIEIR BSTM Run3.xls, [ACM.001.015.3395].
6. Debt and Equity 2011 2021 23rd Aug CS Deliver. xls,
[ACM.001.015.3397].
7. AM Peak City and RiverCrossings.xls, [ACM.001.112.4687].
8. Revision Debt 2011 CS 5 Sept.xls, [ACM.001.015.3394].
9. 2016 and 2026 CS 9 Sept.xls, [ACM.001.015.3396].
10. 2011NIEIRBSTMRun2.xls, [ACM.001.038.1768].
11. 2011_te.xls, [ACM.003.062.0126].
12. Revision TE LU 2011 CS 5th Sept.xls, [ACM.001.034.4702].
13. NIEIR Technical Note 2005.doc, [ACM.001.062.8575].
14. Invoices from NIEIR to RiverCity Motorway dated 7 September 2005
(x3), [NIR.001.001.0006], [NIR.001.001.0007] and
[NIR.001.001.0008], dated 11 November 2005 [NIR.001.001.0009],
and dated 21 December 2006, [NIR.001.001.0010].
15. Letter dated 10 May 2006, from Dr Peter Brain, for and on behalf of
NIEIR, to Peter Hicks, [ACM.001.033.7430].
16. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
15. The Original NSBT Consultancy Agreement, as amended by the NIEIR Amendment, was
subsequently further amended by written agreement entered into on 31 July 2006 (the
Claims Discharge Date Amendment Agreement), whereby the time period after which
AECOM Australia was deemed to have been discharged from all liability in respect of the
Services was extended, from the Original Claims Discharge Date, to 24 months after the
NSBT opened which, in the events which occurred, is 16 March 2012,
(hereafter, unless the context requires otherwise, a reference to AECOM Australia's
Contract means the Original NSBT Consultancy Agreement as amended by the NIEIR
Amendment and the Claims Discharge Date Amendment Agreement).
NIEIR
16. NIEIR:
(a) is, and was at all material times, a corporation duly incorporated in Victoria and is
able to be sued;
(b) is, and was at all material times, a corporation within the meaning of section 4 of
the Trade Practices Act 1974 (Cth) (TPA);
(c) at all material times supplied goods and services in the course of trade and
commerce within the meaning of the TPA; and
(d) at all material times carried on business in Australia as a forecaster of population,
population growth, employment, land use and economic development and trip
generation.
Part B. North-South Bypass Tunnel
23
17. At all material times NIEIR was or had (as the case may be):
(a) a private economic research and consulting company serving clients in the public
and private sectors;
(b) extensive expertise in working on infrastructure projects, including toll road
infrastructure projects, throughout Australia from 2000 to 2005;
(c) a leading economic forecaster;
(d) been retained by the BCC for previous infrastructure forecasting project work;
(e) a company with expertise within its staff in relation to data sets and econometric
analyses available for application to client needs;
(f) the operator of a range of effective forecasting and analysis tools;
(g) able to provide the services of two leading consultant economists, Dr Craig
Shepherd and Dr Peter Brain;
(h) a company with expertise in land use and development trends in Brisbane;
(i) expertise in the application of significant growth rates representing the value of
time, which might be relevant to the NSBT; and
(j) a company with extensive expertise in the retail sector, including the assessment
of traffic and travel times on centre behaviour, which would be important in base
year calibration of those trip types for the NSBT,
(NIEIR's Expertise).
18. On or about 30 June 2005, Leighton, acting for the Sponsor Clients and the yet-to-be
registered RCM SPVs, engaged NIEIR (NIEIR's Engagement) to:
(a) develop forecasts which predicted Brisbane traffic growth after 2005 by reference
to geographically defined travel zones and, or in the alternative, forecasts which
were reasonably suitable and appropriate for use by AECOM Australia as
material inputs into AECOM Australia's modelling of forecast future NSBT traffic
volumes after 2005, in respect of two different scenarios required for debt and
equity markets (the Two Traffic Forecast Scenarios), being:
(i) a "low" or "bank" scenario, developed primarily for consideration by the
debt markets and to be based upon what NIEIR regarded as conservative
economic growth modelling (the Bank Case); and
(ii) a "base" scenario, to be developed primarily for consideration by the RCM
Consortium and equity investors in the RCM Group, using economic
growth assumptions which NIEIR regarded as consistent with a strongly
performing domestic and international economy (the Base Case),
(together, NIEIR's Growth Forecasts); and
(b) provide those NIEIR's Growth Forecasts to, or for the benefit of, each of the
Sponsor Clients and the RCM Group and Flow Tolling (as RCM SPVs), and to
AECOM Australia, to enable the RCM Consortium and AECOM Australia to
forecast future NSBT traffic volumes.
Part B. North-South Bypass Tunnel
24
Particulars
1. Letter dated 30 June 2005, from Dr Craig Shepherd, for and on behalf of
NIEIR, to the Sponsor Clients, [NIR.001.001.0001].
2. Email from Thao Oakey to Dr Craig Shepherd sent at 2.45pm on 30 June
2005, entitled “NIEIR mandate letter”, [NIR.001.002.0001] and attachment
[NIR.001.002.0002].
3. NIEIR Technical Note on 2004v2.doc, [ACM.001.015.3398].
4. 2011 NIEIR BSTM Run3.xls, [ACM.001.015.3395].
5. Debt and Equity 2011 2021 23rd Aug CS Deliver. xls,
[ACM.001.015.3397].
6. AM Peak City and RiverCrossings.xls, [ACM.001.112.4687].
7. Revision Debt 2011 CS 5 Sept.xls, [ACM.001.015.3394].
8. 2016 and 2026 CS 9 Sept.xls, [ACM.001.015.3396].
9. 2011NIEIRBSTMRun2.xls, [ACM.001.038.1768].
10. 2011_te.xls, [ACM.003.062.0126].
11. Revision TE LU 2011 CS 5th Sept.xls, [ACM.001.034.4702].
12. NIEIR Technical Note 2005.doc, [ACM.001.062.8575].
13. Invoices from NIEIR to "RiverCity Motorway" dated 7 September 2005
(x3), [NIR.001.001.0006], [NIR.001.001.0007] and [NIR.001.001.0008],
dated 11 November 2005 [NIR.001.001.0009], and dated 21 December
2006 [NIR.001.001.0010].
14. Report entitled "Traffic Forecasts. North-South Bypass Tunnel", dated 1
December 2005, [ACM.002.001.4568] and report entitled "Traffic
Forecasts. North-South Bypass Tunnel", dated 7 December 2005,
[RCG.003.001.0245].
15. Report entitled "Traffic Forecasts. North-South Bypass Tunnel. Final
tolling strategy and project configuration", dated 22 May 2006,
[RCG.001.008.6302].
16. Letter dated 10 May 2006, from Dr Peter Brain, for and on behalf of NIEIR
to Peter Hicks, [ACM.001.033.7430].
17. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Keith Long
19. At all material times, Keith Long was an expert in traffic forecasting and had Traffic
Forecasting Expertise (Keith Long's Expertise).
20. In or about April 2005, the Sponsor Clients, both on their own behalf and acting for the
yet-to-be registered RCM SPVs, engaged Keith Long to undertake investigations and
Part B. North-South Bypass Tunnel
25
reviews, and to provide assistance, inputs, advice, feedback and other work product to
the RCM Consortium and AECOM Australia in connection with AECOM Australia's NSBT
Work and NSBT Project traffic matters (Keith Long's Engagement).
Particulars
1. Email from Ben Cooper to Shaun Tabone and others, copied to Peter
Hicks and others sent at 12:11 on 7 April 2005, entitled "NSBT - Minutes
to 7 April PAX Workshop" with attachment entitled "NSBT Traffic
Workshop Output.doc" [ACM.001.019.1213] and attachment
[ACM.001.019.1215].
2. Email from David Plowman to Bob Hunter sent at 17:36 on 26 April 2005,
entitled "Interim Draft" with attachments entitled "Draft 3 - Section 3-
Schedule A - Details of the Respondent_Participants.doc" and "Draft 3 -
Section 8 - Schedule D3 - Commercial Issues.doc" and others,
[RCG.001.001.2939] and attachments [RCG.001.001.2946] and
[RCG.001.001.2950].
3. Email from Bob Hunter to Peter Hicks and others including Keith Long
sent at 14:42 on 19 April 2005, entitled "Updated: NSBT Traffic Meeting",
[ACM.001.019.2721].
4. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
PB
21. At all material times, Parsons Brinckerhoff Australia Pty Limited and Parsons Brinckerhoff
International (Australia) Pty Limited:
(a) traded together as 'Parsons Brinckerhoff' (PB);
(b) were a professional consulting firm, assisting private and public clients to plan,
develop, design, construct, operate and maintain critical infrastructure; and
(c) had Traffic Forecasting Expertise (PB's Expertise).
22. By no later than in or about July 2005, the Sponsor Clients, both on their own behalf and
acting for the yet-to-be registered RCM SPVs, engaged PB to undertake a peer review
and audit of key aspects of AECOM Australia's NSBT Work, and to produce advice and
reports on the outcomes of that work which could be considered by AECOM Australia,
and considered and relied upon by the Sponsor Clients and the RCM Group and Flow
Tolling (as RCM SPVs), financiers and potential financiers to the NSBT Project and
equity investors or potential equity investors in any RCM SPV in connection with the
NSBT Project (PB's Engagement).
Particulars
1. Appendix B: "Summary of Parsons Brinckerhoff's roles in reviewing
Maunsell's 2005 model and its calibration and validation",
[RCG.003.001.0245] at RCG.003.001.0449.
Part B. North-South Bypass Tunnel
26
2. Appendix G: "Parsons Brinckerhoff peer review report. River City
Motorway Traffic Forecasts Base Model Review", [RCG.003.001.0245] at
RCG.003.001.0529.
3. Appendix B: "Summary of Parsons Brinckerhoff's roles in reviewing
Maunsell's 2005 model and its calibration and validation",
[RCG.001.008.6302] at RCG.001.008.6488.
4. Appendix G: "Parsons Brinckerhoff peer review report. River City
Motorway Traffic Forecasts Base Model Review", [RCG.001.008.6302] at
RCG.001.008.6568.
5. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
HTS
23. Hutcheson Transport Solutions Pty Limited (HTS) was at all material times a professional
services company providing specialist traffic forecasting services and had Traffic
Forecasting Expertise (HTS' Expertise).
24. By no later than in or about July 2005 or, in the alternative, September or October 2005,
the Sponsor Clients, both on their own behalf and acting for the yet-to-be registered RCM
SPVs, engaged HTS to undertake a review, provide comments upon AECOM Australia's
NSBT Work and make recommendations to the RCM Consortium (HTS' Engagement).
Particulars
1. Email from Adam Chittendon to Sarah Chate and David Plowman sent at
14:50 on 15 July 2005, entitled "Re: Roadshow Agenda and
Accompanying Notes" with attachments entitled "0507_14 Roadshow
Agenda_AC mk-up.doc" and "0507_13 Roadshow Agenda NOTE_AC mk-
up.doc", [RCG.001.001.5244] and attachments [RCG.001.001.5247] and
[RCG.001.001.5251].
2. Email from Alen Lau to Calum Hutcheson sent at 15:21 on 10 October
2005, entitled "re: RiverCity Motorway Base Year Model Report" with
attachment entitled "Base Year Model_AL101005.pdf",
[ACM.001.033.6881] and attachment [ACM.001.033.6882].
3. Email from Alan Broadbent to Calum Hutcheson and copied to Peter
Hicks sent at 17:54 on 12 October 2005, entitled "River City Motorway
Calibration Spreadsheet" with attachment entitled
"Calibration_CHutch_12Oct.zip", [ACM.001.033.6873] and attachment
[ACM.001.033.6874].
4. Email from Peter Hicks to Alan Broadbent sent at 13:53 on 12 October
2005 attaching a document entitled "HTS03017M01 - NSBT
Questions.pdf", [ACM.001.033.6875] and attachment
[ACM.001.033.6878].
5. Email from Peter Hicks to Alan Broadbent and Nicholas Entsch, sent at
11:23am on 2 November 2005, entitled “HTS03017 – NSBT” with
Part B. North-South Bypass Tunnel
27
attachment entitled "Calum brief 01 11 05.doc", [ACM.001.033.6939] with
attachment [ACM.001.033.6942].
6. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Beca
25. Beca Pty Limited (Beca):
(a) is, and was at all material times, an Australian proprietary company, limited by
shares, registered in Victoria and is able to be sued;
(b) [there is no sub-paragraph (b)];
(c) [there is no sub-paragraph (c)]; and
(d) is, and was at all material times, a leading professional services company
providing specialist engineering services to businesses and communities in the
Asia Pacific region, including in respect of proposed tunnels of which the NSBT
was an example (Beca's Expertise).
26. In or about May 2005, and in any event by no later than in or about early August 2005,
the Sponsor Clients, both on their own behalf and acting for the yet-to-be registered RCM
SPVs, engaged Beca, as lead independent engineer, to review, and report upon, certain
technical aspects of the proposed NSBT Project (Beca's Engagement).
Particulars
1. Product Disclosure Statement dated 21 June 2006 (PDS) at page 99
[RCG.001.008.6127].
2. Project Overview and Initial Technical Briefing North-South Bypass
Tunnel: A Presentation to Project Financiers dated August 2005
[RCG.001.006.0385].
3. "North South Bypass Tunnel - Independent Engineer Exclusivity
Agreement" signed on behalf of Beca, and the Sponsor Clients dated 9
September 2005 (the Beca Exclusivity Agreement),
[WLB.001.017.0793].
4. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Mallesons
27. At all material times, the partnership of two or more natural persons carrying on the
profession of lawyers in Australia under the partnership name of "Mallesons Stephen
Jaques" (Mallesons):
(a) comprised persons who are able to be sued in their personal capacity;
(b) were specialists in all legal aspects of:
Part B. North-South Bypass Tunnel
28
(i) acting for project sponsors of which the Sponsor Clients were examples,
and for bidding consortia of which the RCM Consortium was an example,
in respect of new Australian toll road concessions of which the NSBT
Concession was an example;
(ii) acting for concession holders of new toll road concessions of which the
NSBT Concession was an example, in respect of the financing, design,
building, ownership and operation of toll roads of which the NSBT was an
example;
(iii) acting in connection with the initial public offering of securities in order to
raise equity for toll road projects of which the NSBT Project was an
example; and
(iv) the preparation and issue of product disclosure statements of which the
PDS was an example; and
(c) knew and understood or, in the alternative, ought to have known and understood,
what disclosures needed to be made, and what omissions could not to be made,
in order for a product disclosure statements of which the PDS was an example to
be:
(i) lawfully issued;
(ii) not misleading or deceptive or likely to mislead or deceive; and
(iii) otherwise not "defective" within the meaning of section 1022A of the
Corporations Act,
(Mallesons' Expertise).
28. By no later than in or about April 2005, the Sponsor Clients, both on their own behalf and
acting for the yet-to-be registered RCM SPVs, engaged Mallesons as the legal advisors
to the RCM Consortium to provide legal advice on all issues pertaining to the NSBT
Project, to prepare all project documents to which the BCC was not a party and to
provide advice in respect of all project documents to which the BCC was a party
(Mallesons' Engagement).
Particulars
1. Schedule A. Details of Respondents/Participants. North-South
Tunnell [sic]. Response to Invitation for Expression of Interest
[RCG.001.001.3541].
2. PDS, page 136 [RCG.001.008.6127].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
Peter Hicks
29. Peter Hicks:
(a) is, and was at all material times, a natural person and able to be sued in his
personal capacity;
Part B. North-South Bypass Tunnel
29
(b) had, at all material times, extensive expertise in the development, management,
maintenance and operation of major transport and other infrastructure assets,
and strong management skills;
(c) was, from in or about 2000, and at all material times, a senior manager employed
by Leighton (in a role designated "Executive General Manager, Investment and
Facility Management" at least between 2005 and 2006), in which position he had
primary responsibility for managing, for and on behalf of Leighton, toll road and
infrastructure projects in which Leighton participated as a proposed or actual
equity investor, of which the NSBT Project was an example (Hicks' Leighton
Employment);
(d) prior to all material times and by no later than April 2005, had led, or otherwise
occupied and discharged, senior management roles in respect of, the Prior
Leighton Toll Road Projects and, in doing so, had developed, and at all material
times had, both Toll Road Expertise and Traffic Forecasting Expertise;
Particulars
1. Schedule D.4 Commitment to Procurement Process. North-South
Tunnell [sic]. Response to Invitation for Expressions of Interest for
NSBT Concession, dated May 2005 [RCG.001.001.3365].
2. PDS, page 55 [RCG.001.008.6127].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(e) at all material times, acted for the RCM Consortium and Flow Tolling as:
(i) the head of the "Project Steering Group", and the "Steering Committee"
and the "Sponsors Steering Group" (if and to the extent that they were
different) for the NSBT Project (the RCM Steering Committee), which
was charged with:
(A) acting in relation to the NSBT Project;
(B) overseeing the work of advisers and consultants to the RCM
Consortium in relation to the NSBT Project;
(C) making all or, in the alternative, all key, decisions on behalf of the
RCM Consortium in relation to the NSBT Project; and
(D) further and in the alternative to sub-paragraph (C) above, making
all or, in the alternative, all key, decisions on behalf of the RCM
Consortium in relation to revenue forecasting and overall business
planning, project structuring, NSBT Project Bid strategy, NSBT
Project Bid approach, establishing the RCM SPVs, NSBT Project
Bid submission (subject to sign-off by the Sponsor Clients),
negotiations in respect of, or arising from, the NSBT Project Bid,
equity underwriting, debt procurement, equity procurement and
setting up organisational structures;
Part B. North-South Bypass Tunnel
30
(ii) one of the three key representatives of the RCM Consortium in relation to
the NSBT Project, together with Charles Mott and:
(A) Duncan Olde until on or about 17 August 2005; and
(B) Malcolm Coleman (in place of Duncan Olde) from about mid-
August 2005;
(iii) the "RCM Project Director" and the "Project Director" (if and to the extent
that they were different);
(iv) a member, and the leader, of a team comprising employees of, or
employed consultants to, members of the RCM Consortium (the RCM
Project Team), who were charged by the RCM Consortium with
preparation of the detailed NSBT Project Bid and negotiations in relation
thereto, under the supervision and control of the RCM Steering
Committee;
(v) the person with authority, under AECOM Australia's Contract, to act for
the RCM Consortium and Flow Tolling for all purposes in connection with,
the NSBT Project and in accordance with all provisions of AECOM
Australia's Contract as alleged in paragraph 13(f) herein;
(vi) a director and officer of each of the Non-Tolling RCM Proceedings
Applicants as a representative of the Sponsor Clients and, or in the
alternative, a representative and nominee of Leighton in the course of
Hicks' Leighton Employment, as follows:
(A) RCM Operations between 14 October 2005 until 25 February
2011;
(B) each of RCM Services, RCM Finance, RCM Construction, and
RCM Asset between 15 November 2005 until 25 February 2011;
(C) RCM Operations 2 between 24 November 2005 until 25 February
2011; and
(D) RCM Asset 2 between 2 December 2005 until 25 February 2011;
(vii) the Chief Executive Officer of each of the Non-Tolling RCM Proceedings
Applicants as the representative of the Sponsor Clients and, or in the
alternative, the representative and nominee of, Leighton in the course of
Hicks' Leighton Employment, up until in or about October 2006;
(viii) a director and officer of Flow Tolling between 16 January 2009 until 25
February 2011;
(ix) a member of a due diligence committee (the DDC), and a member and
the head of a traffic due diligence sub-committee (the TDDSC),
established, and convened, in April and May 2006 respectively, to:
(A) consider expert reports prepared for, or in respect of, the NSBT
Project; and
(B) determine whether each report should be included in a product
disclosure statement to be issued in connection with the RCM
IPO;
Part B. North-South Bypass Tunnel
31
Particulars
1. As to sub-paragraphs (e)(i)- (iv) above:
(a) North South Bypass Tunnel- Position Paper
prepared on or about 12 April 2005,
[RCG.001.001.1794].
(b) Schedule D.4 Commitment to Procurement
Process. North-South Tunnell [sic]. Response to
Invitation for Expressions of Interest for NSBT
Concession dated May 2005, [RCG.001.001.3365].
(c) Schedule A. Details of Respondent/Participant.
North-South Tunnell [sic]. Response to Invitation
for Expression of Interest, dated May 2005,
[RCG.001.001.3541].
(d) Project Overview and Initial Technical Briefing
North-South Bypass Tunnel: A Presentation to
Project Financiers dated August 2005,
[RCG.001.006.0385].
(e) North-South Bypass Tunnel Project, Leighton
Holdings Limited Board Sub Committee (LCPL)
Briefing Update no 2 dated 6 September 2005,
[RCG.001.006.0722].
(f) RiverCity Motorway Probity and Confidentiality
Procedure document No: RCM--1 Revision No: 5A
Date 10 September 2005, [ACM.001.053.0828].
(g) Volume 7 Financial and Commercial Issues, RCM
Response to Request for Proposals dated 7
December 2005, [RCG.003.001.0087].
2. As to sub-paragraph (e)(v) above, AECOM Australia's
Contract, [ACM.002.002.0247].
3. As to Peter Hicks being a representative of the Sponsor
Clients and, or in the alternative, a representative and
nominee of, Leighton in the course of Hicks' Leighton
Employment as alleged in sub-paragraph (e)(vi) above,
RiverCity Motorway Business Plan 6 December 2005,
[RCG.010.004.3217]:
(a) variously identifies "RCM" as a consortium
comprising the Sponsor Clients and an entity
structure which included:
(i) RCM Operations, RCM Construction, RCM
Finance, RCM Services and RCM
Operations 2; and
(ii) RCMIT and RCMHT (together, the RCM
Trusts), amongst other trusts;
Part B. North-South Bypass Tunnel
32
(b) refers to Bilfinger and Baulderstone together as a
"Sponsor";
(c) states that the "RCM Board" of directors will
comprise "representatives" from Leighton, ABN
AMRO and Bilfinger and independent directors;
and
(d) also identifies Peter Hicks as Leighton's "nominee"
in the course of a description of Peter Hicks'
employment by, and roles with, Leighton.
4. As to sub-paragraph (e)(vii) above, CEO Report dated July
2006, [RCG.009.002.0012].
5. As to sub-paragraph (e)(ix) above:
(a) the DDC met on 5 April 2006 [RCG.012.001.0003],
1 May 2006 [RCG.012.001.0045] and 12 May 2006
[RCG.012.001.0075]; and
(b) the TDDSC met on 4 May 2006
[ACM.001.033.7389], 8 May 2006
[ACM.001.033.7418] and 11 May 2006
[ACM.001.091.9646].
6. Further particulars may be supplied upon further review of
already discovered and subpoenaed documents and
documents to be produced, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor
Clients or, in the alternative, ABN AMRO, in the course of
the NSBT Project.
(f) further and in the alternative to sub-paragraph (e) above, was, and acted, at all
material times, as the agent of the RCM Consortium and Flow Tolling, or in the
alternative, each member of the RCM Consortium and Flow Tolling individually, in
connection with the NSBT Project Bid and the NSBT Project and in the execution
and fulfilment of the Joint RCM Plan;
Particulars
1. Peter Hicks was appointed as agent by express agreement
between the RCM Consortium and Peter Hicks and AECOM
Australia refers to sub-paragraphs (e)(i) - (v) and (ix) above and
the particulars thereto.
2. Further and in the alternative to 1 above, Peter Hicks' appointment
as agent is to be implied, or inferred, from:
(a) his appointments as alleged in sub-paragraphs (e)(i) - (v)
and (ix) above; and, or in the alternative
(b) the conduct of Peter Hicks and the RCM Consortium in,
and in connection with, the NSBT Project as further
alleged below at paragraphs 37, 45, 49, 54, 59, 63 and 64,
68, 83 - 88 and 92 - 94 herein.
Part B. North-South Bypass Tunnel
33
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(g) by reason of the matters alleged in sub-paragraphs (e)(i) - (v) and (ix) above and,
or in the alternative, the matters alleged in sub-paragraph (f) above, at all material
times had the authority of the RCM Consortium and Flow Tolling or, in the
alternative, each member of the RCM Consortium and Flow Tolling individually,
and the responsibility, to:
(i) act in connection with all aspects of the NSBT Project Bid and the
implementation of the NSBT Project;
(ii) lead each of the NSBT Project, the RCM Steering Committee, the RCM
Project Team and the TDDSC;
(iii) make decisions in connection with, or in respect of, traffic and revenue
modelling, traffic model calibration, traffic report, bid and product
disclosure statement writing, finance issues, legal issues, capital raising
and structuring, the RCM IPO, the PDS, tax issues and bid
documentation;
(iv) co-ordinate and supervise, obtain and provide instructions, directions and
other inputs, feedback and assistance to, receive, review, approve and
accept reports, advice and other work product from, and communicate
with:
(A) other members of the RCM Project Team and other employees of
any member of the RCM Consortium in connection with the NSBT
Project;
(B) AECOM Australia in connection with AECOM Australia's NSBT
Commission and the NSBT Project;
(C) NIEIR in connection with NIEIR's Engagement and the NSBT
Project;
(D) Keith Long in connection with Keith Long's Engagement and the
NSBT Project;
(E) PB in connection with PB's Engagement and the NSBT Project;
(F) HTS in connection with HTS' Engagement and the NSBT Project;
and
(G) Beca in connection with Beca's Engagement and the NSBT
Project; and
(v) co-ordinate, supervise and provide instructions and other inputs and
feedback in connection with the preparation and distribution of, and to
draft responses to questions or requests for information received from, or
by and on behalf of, financiers or potential financiers of, and, or in the
alternative, equity investors or potential equity investors in, the NSBT
Project (RCM Financiers and Investors) in respect of traffic matters,
Part B. North-South Bypass Tunnel
34
(Hicks' Authority and Responsibilities).
Particulars
1. AECOM Australia refers to and repeats the particulars to sub-
paragraphs (e)(i) - (v) and (ix) and (f) above.
2. Further and in the alternative to 1 above, Hicks' Authority and
Responsibilities arise and, or in the alternative, are to be inferred,
from:
(a) each of the appointments alleged in sub-paragraphs (e)(i) -
(v) and (ix) and (f) above; and, or in the alternative
(b) Peter Hicks' actual role, as alleged further below in
paragraphs 37, 45, 49, 54, 59, 63 and 64, 68, 83 - 88 and
92 - 94 herein, in:
(i) obtaining and providing instructions, directions and
other inputs, feedback and technical and other
advice and, or in the alternative, assistance to, in
receiving, reviewing and approving reports, advice
and, or in the alternative, other work product from,
and, or in the alternative, communicating with,
other members of the RCM Project Team, the RCM
Consortium, other employees of a member of the
RCM Consortium, AECOM Australia, NIEIR, Keith
Long, PB, HTS and Beca in connection with the
NSBT Project; and
(ii) co-ordinating, supervising and providing
instructions and other inputs and feedback in
connection with the preparation, and distribution of,
and drafting, responses to questions or requests
for information received from, or by and on behalf
of, RCM Financiers and Investors in connection
with the NSBT Project.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
Robert Morris
30. Robert (Bob) Morris:
(a) is, and was at all material times, a natural person and able to be sued in his
personal capacity;
(b) is, and was at all material times, a qualified and experienced engineer;
(c) was, prior to 1994:
(i) the Regional Manager Western Region of the New South Wales
Department of Main Roads where he was the co-author of a paper on
Part B. North-South Bypass Tunnel
35
privatisation opportunities for New South Wales main roads; and,
subsequently
(ii) the Director, Sydney Region of the New South Wales Road and Traffic
Authority (as it then was), in which capacity he was closely involved with
the development and, or in the alternative, operation of the SHT, the M2,
M4 and M5 toll roads in Sydney, New South Wales (together, the DMR
Projects);
(d) between in or about 1994 and in or about 2002:
(i) was a senior manager employed by Leighton in a role designated
"General Manager Land Transport", where he had responsibility for the
development, management, maintenance and operation of major
transport and other infrastructure assets; and
(ii) led, or otherwise occupied and discharged senior management roles in
relation to, the ED, the M7 and CCT from amongst the Prior Leighton Toll
Road Projects (Morris' Leighton Projects);
Particulars
1. Email from David Plowman to Peter Hicks, Charles Mott, Duncan
Olde and Malcolm Coleman, copied to others, sent at 20:19 on 25
November 2005, entitled "NSBT - Better Network: Better City",
with attachment "NSBT Key Messages.pdf", [RCG.001.002.2765]
with attachment [RCG.001.002.2766].
2. PDS, page 54 [RCG.001.008.6127].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(e) was a director of Leighton between June 1997 and July 2003;
(f) was, at all material times, a director of Airport Motorway Limited, which developed
and operated the ED;
(g) by no later than April 2005, had in the course of occupying senior management
roles in respect of the DMR Projects and Morris' Leighton Projects, developed,
and at all material times had, both Toll Road Expertise and Traffic Forecasting
Expertise;
Particulars
1. Schedule D.4 Commitment to Procurement Process North-South
Tunnell [sic]. Response to Invitation for Expressions of Interest for
NSBT Concession dated May 2005 [RCG.001.001.3365].
2. PDS, page 54 [RCG.001.008.6127].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
Part B. North-South Bypass Tunnel
36
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(h) was, and acted, at all material times, as a consultant to the Sponsor Clients or, in
the alternative, to Leighton, acting for the RCM Consortium and Flow Tolling, in
relation to the NSBT Project (Morris' Consultancy);
(i) at all material times, acted for the RCM Consortium and Flow Tolling, as:
(i) a member of the RCM Project Team;
(ii) the nominated, and actual, alternate for Peter Hicks in respect of each of
the appointments alleged in paragraph 29(e)(i) - (iii) herein and the
appointment as leader of the RCM Project Team alleged in paragraph
29(e)(iv) herein;
(iii) a member, and the chair, of the DDC, and as a member of the TDDSC;
(iv) a director and officer of each of the RCM Group as a representative of the
Sponsor Clients and, or in the alternative, as a representative and
nominee of Leighton in the course of Morris' Consultancy as follows:
(A) each of RCM Services, RCM Finance, RCM Construction, and
RCM Asset between 15 November 2005 until 25 February 2011;
(B) RCM Operations 2 between 24 November 2005 until 25 February
2011;
(C) RCM Asset 2 between 2 December 2005 until 25 February 2011;
(D) RCM Operations between 1 February 2006 until 25 February
2011; and
(E) RCMML between 3 June 2006 and 25 February 2011;
(v) a director of Flow Tolling between 16 January 2009 and 25 February
2011; and
(vi) the Chair of the board of directors of each of:
(A) the Non-Tolling RCM Proceedings Applicants, at all material times
from on or shortly after their respective registrations; and
(B) RCMML, at all material times from on or about 3 June 2006;
Particulars
1. As to sub-paragraph (i)(i) and (ii) above:
(a) Schedule D.4 Commitment to Procurement Process.
North-South Tunnell [sic]. Response to Invitation for
Expressions of Interest for NSBT Concession dated May
2005 [RCG.001.001.3365].
(b) AECOM Australia reported to Robert Morris whilst Peter
Hicks was absent on leave during the NSBT Project
[ACM.001.004.3019] and attachment [ACM.001.004.3021].
Part B. North-South Bypass Tunnel
37
2. As to sub-paragraph (i)(iii) above, AECOM Australia refers to and
repeats paragraph 5 of the particulars to paragraph 29(e)(ix)
herein.
3. As to Robert Morris being a representative of the Sponsor Clients
and, or in the alternative, a representative and nominee of,
Leighton in the course of Morris' Consultancy as alleged in sub-
paragraph (i)(iv) above, RiverCity Motorway Business Plan 6
December 2005 [RCG.010.004.3217]:
(a) variously identifies "RCM" as a consortium comprising the
Sponsor Clients and an entity structure which included:
(i) RCM Operations, RCM Construction, RCM
Finance, RCM Services and RCM Operations 2;
and
(ii) the RCM Trusts, amongst other trusts;
(b) refers to Bilfinger and Baulderstone together as a
"Sponsor";
(c) states that the "RCM Board" of directors will comprise:
(i) "representatives" from Leighton, ABN AMRO and
Bilfinger; and
(ii) independent directors; and
(d) identifies Robert Morris as being a director and the Chair
of the board of directors of "RCM", and as being
independent of the Sponsor Clients but Robert Morris was
not, in fact, independent of the Sponsor Clients, by reason
of the Morris' Consultancy as alleged in sub-paragraph (h)
above and, or in the alternative, his appointments and
roles as alleged in sub-paragraphs (i)(i) and (ii) above on
behalf of, relevantly, the Sponsor Clients, from which it is
to be inferred that he was, instead, appointed as a
representative of the Sponsor Clients or, in the alternative,
as the representative and nominee of Leighton in the
course of his consultancy with Leighton.
4. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(j) further and in the alternative to sub-paragraph (i) above, was, and acted, at all
material times, as the agent of the RCM Consortium and Flow Tolling, or in the
alternative, each member of the RCM Consortium and Flow Tolling individually, in
connection with the NSBT Project Bid and the NSBT Project and in the execution
and fulfilment of the Joint RCM Plan;
Part B. North-South Bypass Tunnel
38
Particulars
1. Robert Morris was appointed as agent by express agreement
between the RCM Consortium and Robert Morris and AECOM
Australia refers to sub-paragraphs (i)(i) - (iii) and the particulars
thereto.
2. Further and in the alternative to 1 above, Robert Morris'
appointment as agent is to be implied, or inferred, from:
(a) his appointments as alleged in sub-paragraph (i)(i) - (iii)
above; and, or in the alternative
(b) the conduct of Robert Morris and the RCM Consortium in,
and in connection with, the NSBT Project as further
alleged below at paragraphs 38, 50, 55, 82 and 85 herein.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(k) by reason of the matters alleged in sub-paragraphs (h) and (i)(i) - (iii) above and,
or in the alternative, the matters alleged in sub-paragraph (j) above, at all material
times had the authority of the RCM Consortium and Flow Tolling or, in the
alternative, each member of the RCM Consortium and Flow Tolling individually,
and the responsibility, to:
(i) act as the alternate for Peter Hicks in respect of each of the appointments
alleged in sub-paragraph 29(e)(i) - (iii) herein and the appointment as
leader of the RCM Project Team as alleged in paragraph 29(e)(iv) herein;
and
(ii) co-ordinate and supervise, obtain and provide instructions, directions and
other inputs, feedback and assistance to, receive, review, approve and
accept reports, advice and other work product from, and, or in the
alternative, communicate with:
(A) other members of the RCM Project Team and employees of any
member of the RCM Consortium in connection with the NSBT
Project;
(B) AECOM Australia in connection with AECOM Australia's NSBT
Commission and the NSBT Project;
(C) Keith Long in connection with Keith Long's Engagement and the
NSBT Project; and
(D) PB in connection with PB's Engagement and the NSBT Project,
(Morris' Authority and Responsibilities).
Particulars
1. AECOM Australia refers to and repeats the particulars to sub-paragraphs
(h), (i)(i) - (iii) and (j) above.
Part B. North-South Bypass Tunnel
39
2. Further and in the alternative to 1 above, Morris' Authority and
Responsibilities arises and, or in the alternative, is to be inferred from:
(a) each of the appointments alleged in sub-paragraphs (h), (i)(i) - (iii)
and (j) above; and, or in the alternative
(b) Robert Morris' actual role, as alleged further below in paragraphs
38, 50, 55, 82 and 85 herein, in co-ordinating and supervising,
obtaining and providing instructions, directions and other inputs,
feedback and technical and other advice and, or in the alternative,
assistance to, and, or in the alternative, in receiving, reviewing and
approving reports, advice and, or in the alternative, other work
product from, and, or in the alternative, communicating with, other
members of the RCM Project Team, the RCM Consortium,
employees of a member of the RCM Consortium, AECOM
Australia, Keith Long and PB in connection with the NSBT Project
at the request, and, or in the alternative, with the knowledge and
approval or acquiescence, of Peter Hicks in the exercise of Hicks'
Authority and Responsibilities and, or in the alternative, the RCM
Consortium through at least Peter Hicks.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Charles Mott
31. Charles Mott:
(a) is, and was at all material times, a natural person and able to be sued in his
personal capacity;
(b) is, and was at all material times, a qualified and experienced engineer;
(c) was, between in or about 2002 and in or about 2004, Baulderstone's Chief
Financial Officer and Group Commercial Director;
(d) was, at all material times, a director of Bilfinger and Bilfinger's Managing Director
(Mott's Bilfinger Employment);
(e) was, at all material times, responsible for investments by Bilfinger and related
companies in Australian toll road concession projects, of which the NSBT Project
was an example;
(f) prior to all material times and by no later than April 2005, had extensive expertise
in discharging project management responsibilities in respect of Prior Bilfinger
Toll Road Projects, in the course of which he developed both Toll Road Expertise
and Traffic Forecasting Expertise;
Particulars
1. Schedule D.4 Commitment to Procurement Process. North-South
Tunnell [sic]. Response to Invitation for Expressions of Interest for
NSBT Concession dated May 2005 [RCG.001.001.3365].
2. PDS, page 5 [RCG.001.008.6127].
Part B. North-South Bypass Tunnel
40
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(g) at all material times, acted for the RCM Consortium and Flow Tolling, as:
(i) a member of the RCM Steering Committee;
(ii) one of the three key representatives of the RCM Consortium in relation to
the NSBT Project, together with Peter Hicks and:
(A) Duncan Olde until on or about 17 August 2005; and
(B) Malcolm Coleman (in place of Duncan Olde) from about mid-
August 2005;
(iii) a member of the RCM Project Team; and
(iv) a director and officer of each of the Non-Tolling RCM Proceedings
Applicants as a representative of the Sponsor Clients and, or in the
alternative, as the representative and nominee of Bilfinger in the course of
Mott's Bilfinger Employment as follows:
(A) RCM Operations between 14 October 2005 and 18 April 2007 and
17 June 2009 and 25 June 2010;
(B) each of RCM Construction, RCM Services, RCM Finance and
RCM Asset between 15 November 2005 and 18 April 2007 and 17
June 2009 and 25 June 2010;
(C) RCM Operations 2 between 24 November 2005 and 18 April 2007
and 17 June 2009 and 25 June 2010; and
(D) RCM Asset 2 between 2 December 2005 and 18 April 2007 and
17 June 2009 and 25 June 2010;
(v) a director and officer of Flow Tolling between 17 June 2009 and 25 June
2010; and
(vi) a member of the DDC;
Particulars
1. As to sub-paragraphs (g)(i) - (iii) above:
(a) Schedule D.4 Commitment to Procurement Process.
North-South Bypass Tunnell [sic]. Response to Invitation
for Expressions of Interest for NSBT Concession dated
May 2005 [RCG.001.001.3365].
(b) Schedule A. Details of Respondent/Participants. North-
South Tunnell [sic]. Response to Invitation for Expressions
of Interest dated May 2005 [RCG.001.001.3541].
Part B. North-South Bypass Tunnel
41
(c) North-South Bypass Tunnel Project, Leighton Holdings
Limited Board Sub Committee (LCPL) Briefing Update no
2 dated 6 September 2005 [RCG.001.006.0722].
(d) RiverCity Motorway Probity and Confidentiality Procedure
document No: RCM--1 Revision No: 5A Date 10
September 2005 [ACM.001.053.0828].
(e) Project Overview and Initial Technical Briefing North-South
Bypass Tunnel: A Presentation to Project Financiers dated
August 2005 [RCG.001.006.0385].
(f) Volume 7 Financial and Commercial Issues, RCM
Response to Request for Proposals dated 7 December
2005 [RCG.003.001.0087].
2. As to Charles Mott being a representative of the Sponsor Clients
and, or in the alternative, the representative and nominee of,
Bilfinger in the course of Mott's Bilfinger Employment as alleged in
sub-paragraph (g)(iv) above, RiverCity Motorway Business Plan 6
December 2005 [RCG.010.004.3217]:
(a) variously identifies "RCM" as a consortium comprising the
Sponsor Clients and an entity structure which relevantly
included:
(i) RCM Operations, RCM Construction, RCM
Finance, RCM Services and RCM Operations 2;
and
(ii) the RCM Trusts, amongst other trusts;
(b) refers to Bilfinger and Baulderstone together as a
"Sponsor";
(c) states that the "RCM Board" of directors will comprise
"representatives" from Leighton, ABN AMRO and Bilfinger
and independent directors; and
(d) also identifies Charles Mott as Bilfinger's "nominee" in the
course of a description of Charles Mott's employment by,
and roles with, Bilfinger.
3. As to sub-paragraph (g)(vi) above, AECOM Australia refers to and
repeats paragraph 5(a) of the particulars to paragraph 29(e)(ix)
herein.
4. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(h) further and in the alternative to sub-paragraph (g) above, was, and acted, at all
material times, as the agent of the RCM Consortium and Flow Tolling, or in the
alternative, each member of the RCM Consortium and Flow Tolling individually, in
Part B. North-South Bypass Tunnel
42
connection with the NSBT Project Bid and the NSBT Project and in the execution
and fulfilment of the Joint RCM Plan;
Particulars
1. Charles Mott was appointed as agent by express agreement
between the RCM Consortium and Charles Mott and AECOM
Australia refers to sub-paragraphs (g)(i) - (iii) and (vi) above and
the particulars thereto.
2. Further and in the alternative to 1 above, Charles Mott's
appointment as agent is to be implied, or inferred, from:
(a) his appointments as alleged in sub-paragraphs (g)(i) - (iii)
and (vi) above; and, or in the alternative
(b) the conduct of Charles Mott and the RCM Consortium in,
and in connection with, the NSBT Project as further
alleged below at paragraph 39 and 82 herein.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(i) by reason of the matters alleged in sub-paragraphs (g)(i) - (iii) and (vi) above and,
or in the alternative, the matters alleged in sub-paragraph (h) above had, at all
material times, the authority of the RCM Consortium and Flow Tolling or, in the
alternative, each member of the RCM Consortium and Flow Tolling individually,
and the responsibility, to co-ordinate and supervise, obtain and provide
instructions, directions and other inputs, feedback and assistance to, receive,
review, approve and accept reports, advice and other work product from, and
communicate with:
(i) other members of the RCM Project Team and other employees of any
member of the RCM Consortium in connection with the NSBT Project; and
(ii) AECOM Australia in connection with AECOM Australia's NSBT
Commission and the NSBT Project,
(Mott's Authority and Responsibilities).
Particulars
1. AECOM Australia refers to and repeats the particulars to sub-
paragraphs (g)(i) - (iii) and (vi) and (h) above.
2. Further and in the alternative to 1 above, Mott's Authority and
Responsibilities arises and, or in the alternative, is to be inferred
from:
(a) Charles Mott's appointment to, each of the appointments
alleged in sub-paragraphs (g)(i) - (iii) and (vi) and (h)
above; and, or in the alternative
Part B. North-South Bypass Tunnel
43
(b) Charles Mott's actual role, as alleged further below at
paragraph 39 and 82 herein, in co-ordinating and
supervising, obtaining and providing instructions, directions
and other inputs, feedback and assistance to, and, or in
the alternative, receiving, reviewing and approving reports,
advice and, or in the alternative, other work product from,
and, or in the alternative, communicating with, other
members of the RCM Project Team, the RCM Consortium,
other employees of a member of the RCM Consortium and
AECOM Australia in connection with the NSBT Project at
the request, and, or in the alternative, with the knowledge
and approval or acquiescence, of Peter Hicks in the
exercise of Hicks' Authority and Responsibilities and, or in
the alternative, the RCM Consortium through at least Peter
Hicks.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
Malcolm Coleman
32. Malcolm Coleman:
(a) is, and was at all material times, a natural person and able to be sued in his
personal capacity;
(b) was, at all material times, employed by ABN AMRO as a "Director" (Coleman's
ABN AMRO Employment);
(c) had, at all material times, responsibility, within ABN AMRO, for directing
infrastructure transactions;
Particulars
1. Email from Stuart Marks to David Plowman and Alan Findlater
sent at 11:37 on 24 November 2005, entitled "FW: PDS -
Typsetting draft" with attachment entitled "05-11-22 PDS Draft
5.DOC" [RCG.001.002.2677] and attachment
[RCG.001.002.2679].
2. Business Plan (Final) dated 6 December 2005
[RCG.010.004.3217].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(d) at all material times from no later than mid-August 2005 until on or about 16 May
2006 acted for the RCM Consortium and Flow Tolling as:
(i) a member of the RCM Steering Committee;
Part B. North-South Bypass Tunnel
44
(ii) one of the three key representatives of the RCM Consortium in relation to
the NSBT Project, together with Peter Hicks and Charles Mott;
(iii) a member of the RCM Project Team;
(iv) a director and officer of each of the Non-Tolling RCM Proceedings
Applicants as a representative of the Sponsor Clients and, or in the
alternative, as the representative and nominee of ABN AMRO in the
course of Coleman's ABN AMRO Employment as follows:
(A) each of RCM Services, RCM Finance, RCM Construction, and
RCM Asset between 15 November 2005 until 16 May 2006;
(B) RCM Operations 2 between 24 November 2005 until 16 May
2006;
(C) RCM Asset 2 between 2 December 2005 until 16 May 2006; and
(D) RCM Operations between 14 October 2005 until 16 May 2006;
Particulars
1. As to sub-paragraphs (d)(i) - (iii) above:
(e) Project Overview North-South Bypass Tunnel, A
Presentation to LBJV dated 18 August 2005
[RCG.001.006.0494].
(f) North-South Bypass Tunnel Project, Leighton Holdings
Limited Board Sub Committee (LCPL) Briefing Update no
2 dated 6 September 2005 [RCG.001.006.0722].
(g) RiverCity Motorway Probity and Confidentiality Procedure
document No: RCM-1 Revision No: 5A Date 10 September
2005 [ACM.001.053.0828].
(h) Volume 7 Financial and Commercial Issues, RCM
Response to Request for Proposals dated 7 December
2005 [RCG.003.001.0087].
2. As to Malcolm Coleman being a representative of the Sponsor
Clients and, or in the alternative, the representative and nominee
of, ABN AMRO in the course of Coleman's ABN AMRO
Employment as alleged in sub-paragraph (d)(iv) above, RiverCity
Motorway Business Plan 6 December 2005 [RCG.010.004.3217]:
(a) variously identifies "RCM" as a consortium comprising the
Sponsor Clients and an entity structure which included:
(i) RCM Operations, RCM Construction, RCM
Finance, RCM Services and RCM Operations 2;
and
(ii) the RCM Trusts, amongst other trusts;
(b) refers to Bilfinger and Baulderstone together as a
"Sponsor";
Part B. North-South Bypass Tunnel
45
(c) states that the "RCM Board" of directors will comprise
"representatives" from Leighton, ABN AMRO and Bilfinger
and independent directors; and
(d) also identifies Malcolm Coleman as ABN AMRO's
"nominee" in the course of a description of Malcolm
Coleman's employment by, and roles with, ABN AMRO.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(e) further and in the alternative to sub-paragraph (d) above, was, and acted, at all
material times, from no later than mid-August 2005 until on or about 16 May
2006, as the agent of the RCM Consortium, or in the alternative, each member of
the RCM Consortium individually, in connection with the NSBT Project Bid and
the NSBT Project and in the execution and fulfilment of the Joint RCM Plan;
Particulars
1. Malcolm Coleman was appointed as agent by express agreement
between the RCM Consortium and Malcolm Coleman and
AECOM Australia refers to sub-paragraph (d)(i) - (iii) above and
the particulars thereto.
2. Further and in the alternative to 1 above, Malcolm Coleman's
appointment as agent is to be implied, or inferred, from:
(a) his appointments as alleged in sub-paragraph (d)(i) - (iii)
above; and, or in the alternative
(b) the conduct of Malcolm Coleman and the RCM Consortium
in, and in connection with, the NSBT Project as further
alleged below at paragraph 40 herein.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(f) by reason of the matters alleged in sub-paragraph (d)(i) - (iii) above and, or in the
alternative, the matters alleged in sub-paragraph (e) above, had, at all material
times, the authority of the RCM Consortium and Flow Tolling or, in the alternative,
each member of the RCM Consortium and Flow Tolling individually, and the
responsibility, to co-ordinate and supervise, obtain and provide instructions,
directions and other inputs, feedback and assistance to, receive, review, approve
and accept reports, advice and other work product from, and communicate with:
(i) other members of the RCM Project Team and other employees of any
member of the RCM Consortium in connection with the NSBT Project; and
(ii) AECOM Australia in connection with AECOM Australia's NSBT
Commission and the NSBT Project,
Part B. North-South Bypass Tunnel
46
(Coleman's Authority and Responsibilities).
Particulars
1. AECOM Australia refers to and repeats the particulars to sub-
paragraphs (d)(i) - (iii) and (e) above.
2. Further and in the alternative to 1 above, Coleman's Authority and
Responsibilities arises and, or in the alternative, is to be inferred
from:
(a) Malcolm Coleman's appointments alleged in sub-
paragraphs (d)(i) - (iii) and (e) above; and, or in the
alternative
(b) Malcolm Coleman's actual role, as alleged further below at
paragraph 40 herein, in co-ordinating and supervising,
obtaining and providing instructions, directions and other
inputs, feedback and, or in the alternative, assistance to,
and, or in the alternative, in receiving, reviewing and
approving reports, advice and, or in the alternative, other
work product from, and, or in the alternative,
communicating with, other members of the RCM Project
Team, the RCM Consortium, other employees of a
member of the RCM Consortium and AECOM Australia in
connection with the NSBT Project at the request, and, or in
the alternative, with the knowledge and approval or
acquiescence, of Peter Hicks in the exercise of Hicks'
Authority and Responsibilities and, or in the alternative, the
RCM Consortium through at least Peter Hicks.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
Duncan Olde
33. At all material times until 17 August 2005, Duncan Olde:
(a) was a senior manager employed by ABN AMRO in a role designated "Executive
Director Infrastructure Capital";
(b) had, or in the alternative, shared, responsibility for managing, for and on behalf of
ABN AMRO, toll road infrastructure projects in which ABN AMRO had an interest,
of which the NSBT Project was an example;
(c) had led, or otherwise occupied and discharged senior management roles in
respect of at least some of the Prior ABN AMRO Toll Road Projects, being the
CCT, LCT and M7, in the course of which he developed, and had, both Toll Road
Expertise and Traffic Forecasting Expertise;
Part B. North-South Bypass Tunnel
47
Particulars
1. Schedule D.4 Commitment to Procurement Process. North-South
Tunnell [sic]. Response to Invitation for Expressions of Interest for
NSBT Concession dated May 2005 [RCG.001.001.3365].
2. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(d) acted for the RCM Consortium and Flow Tolling as:
(i) a member of the RCM Steering Committee;
(ii) one of the three key representatives of the RCM Consortium in relation to
the NSBT Project, together with Peter Hicks and Charles Mott; and
(iii) a member of the RCM Project Team;
Particulars
1. Schedule D.4 Commitment to Procurement Process. North-South
Bypass Tunnell [sic]. Response to Invitation for Expressions of
Interest for NSBT Concession dated May 2005
[RCG.001.001.3365].
2. Schedule A. Details of Respondent/Participants. North-South
Bypass Tunnell [sic]. Response to Invitation for Expressions of
Interest dated May 2005 [RCG.001.001.3541].
3. Project Overview and Initial Technical Briefing North-South
Bypass Tunnel: A Presentation to Project Financiers dated August
2005 [RCG.001.006.0385].
4. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(e) further and in the alternative to sub-paragraph (d) above, was, and acted as, the
agent of the Sponsor Clients in connection with the NSBT Project Bid and the
NSBT Project and in the execution and fulfilment of the Joint RCM Plan;
Particulars
1. Duncan Olde was appointed as agent by express agreement
between the Sponsor Clients and Duncan Olde and AECOM
Australia refers to sub-paragraph (d) above and the particulars
thereto.
2. Further and in the alternative to 1 above, Duncan Olde's
appointment as agent is to be implied, or inferred, from:
Part B. North-South Bypass Tunnel
48
(a) his appointments as alleged in sub-paragraph (d) herein;
and, or in the alternative
(b) the conduct of Duncan Olde and the Sponsor Clients in,
and in connection with, the NSBT Project as further
alleged below at paragraph 41 herein.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
(f) by reason of the matters alleged in sub-paragraph (d) and (e) above, had the
authority of the Sponsor Clients, and the responsibility, to co-ordinate and
supervise and obtain and provide instructions, directions and other inputs,
feedback and assistance to, receive, review, approve and accept reports, advice
and other work product from, and communicate with:
(i) other members of the RCM Project Team and other employees of the
Sponsor Clients in connection with the NSBT Project; and
(ii) AECOM Australia in connection with AECOM Australia's NSBT
Commission and the NSBT Project;
(Olde's Authority and Responsibilities).
Particulars
1. AECOM Australia refers to and repeats the particulars to sub-
paragraphs (d) and (e) above.
2. Further and in the alternative to 1 above, Olde's Authority and
Responsibilities arises and, or in the alternative, is to be inferred
from:
(a) Duncan Olde's appointments alleged in sub-paragraphs (d)
and (e) above; and, or in the alternative
(b) Duncan Olde's actual role, as alleged further below at
paragraph 41 herein, in co-ordinating and supervising and
obtaining and providing instructions, directions and other
inputs, feedback and, or in the alternative, assistance to,
and, or in the alternative, in receiving, reviewing and
approving reports, advice and, or in the alternative, other
work product from, and, or in the alternative, communicate
with, other members of the RCM Project Team, AECOM
Australia and the Sponsor Clients in connection with the
NSBT Project at the request, and, or in the alternative, with
the knowledge and approval or acquiescence, of Peter
Hicks in the exercise of Hicks' Authority and
Responsibilities and, or in the alternative, the Sponsor
Clients through at least Peter Hicks.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
Part B. North-South Bypass Tunnel
49
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
AECOM Australia's NSBT Work
34. On or about 4 April 2005, AECOM Australia commenced AECOM Australia's NSBT
Work.
35. Between on or about 4 April 2005 and on or about 20 June 2006, AECOM Australia, in
the course of AECOM Australia's NSBT Work prepared, and delivered to the RCM
Consortium:
(a) forecasts of future NSBT traffic volumes for each of the Two Traffic Forecast
Scenarios as at 1 December 2005 (the December 2005 Traffic Forecast), which
were contained in both a written report dated 1 December 2005 and a written
report dated 7 December 2005 (together, the December 2005 Traffic Reports);
(b) forecasts of future NSBT traffic volumes for each of the Two Traffic Forecast
Scenarios as at 10 April 2006 (the April 2006 Traffic Forecast) which were
contained in a written supplementary report dated 10 April 2006 (the April 2006
NSBT Traffic Supplement); and
(c) forecasts of future NSBT traffic volumes for each of the Two Traffic Forecast
Scenarios as at 22 May 2006 (the May 2006 Traffic Forecast) which were
contained in a written report dated 22 May 2006 (the May 2006 Traffic Report),
(hereafter, the December 2005 Traffic Forecast, the April 2006 Traffic Forecast
and the May 2006 Traffic Forecast are, together, referred to as AECOM
Australia's Traffic Forecasts and the December 2005 Traffic Reports, the April
2006 NSBT Traffic Supplement and the May 2006 Traffic Report are, together,
referred to as AECOM Australia's Traffic Reports);
(d) the Summary Letter, which included the Forecasts; and
(e) a letter giving its consent (AECOM Australia's PDS Consent) to:
(i) being named in the PDS in the form and context in which it was named in
a draft of the PDS dated on or about 20 June 2006; and
(ii) the inclusion in the PDS of:
(A) the Summary Letter in the form and context in which it was
included in the PDS;
(B) AECOM Australia's Base Case forecasts (referred to in the
Summary Letter as forecasts under the "base" scenario" and
elsewhere in the PDS as "base scenario projections") in the form
and context in which they were included in the PDS;
(C) references to the Summary Letter and those forecasts in the form
and context in which they appeared in a draft of the PDS dated on
or about 20 June 2006,
(together, AECOM Australia's Consented Material).
Part B. North-South Bypass Tunnel
50
Particulars
1. The December 2005 Traffic Reports [ACM.002.001.4568] and
[RCG.003.001.0245].
2. The April 2006 NSBT Traffic Supplement [ACM.001.038.4984].
3. The May 2006 Traffic Report [RCG.001.008.6302].
4. AECOM Australia's PDS Consent [ACM.001.015.4451].
5. PDS, page 137 [ACM.001.015.2211].
36. Each of AECOM Australia's Traffic Forecasts, each of AECOM Australia's Traffic
Reports, the Summary Letter and the AECOM Australia's PDS Consent were:
(a) a "Brisbane North South Bypass Tunnel Traffic and Transport Analyses Project
Output " within the meaning of AECOM Australia's Contract; and
(b) provided by AECOM Australia to the RCM Consortium pursuant, and subject, to,
the terms of AECOM Australia's Contract and:
(i) in the case of RCM Asset and RCM Operations, as the proposed
"Concessionaire" within the meaning of AECOM Australia's Contract; and
(ii) in the case of the other members of the RCM Group, as related body
corporates or affiliates of RCM Asset and RCM Operations within the
meaning of AECOM Australia's Contract.
RCM Project Team AECOM Australia actions
Hicks' AECOM Australia Actions
37. From in or about April 2005, Peter Hicks:
(a) engaged AECOM Australia;
(b) co-ordinated and supervised, provided instructions, directions and other inputs,
technical and other advice, feedback and assistance to, and received, reviewed
and accepted feedback, advice, reports and other work product from, AECOM
Australia regarding, or in connection with matters concerning, or arising from,
AECOM Australia's NSBT Commission and AECOM Australia's NSBT Work;
(c) further to sub-paragraph (b) above, participated in the preparation, review and, or
in the alternative, acceptance of what became AECOM Australia's Traffic
Forecasts, AECOM Australia's Traffic Reports and the Summary Letter; and
(d) communicated with AECOM Australia, with the RCM Consortium and with other
members of the RCM Project Team, regarding, or in connection with, AECOM
Australia's NSBT Work,
(together, Hicks' AECOM Australia Actions).
Particulars
Hicks' AECOM Australia Actions as alleged above are illustrated in, and by, the
following documents:
1. Email from Peter Hicks to Robert Morris and others dated 14 June 2005 at
14.53 entitled "Traffic Meeting Wednesday 15th at 3pm postponed" and
Part B. North-South Bypass Tunnel
51
attachment NSBT Traffic Progress 14 June 2005, [ACM.001.019.2710]
and attachment [ACM.001.019.2712].
2. Email from David Plowman to Robert Morris copied to Peter Hicks and
others, sent at 9.41am on 23 June 2005 entitled "NSBT-Traffic -X
Factors", [RCG.001.001.4679].
3. Email from Peter Hicks to David Plowman and Robert Morris, sent at
10.25am on 23 June 2005 entitled "NSBT-Traffic -X Factors",
[RCG.001.001.4683].
4. Email from Phillip Brogan to Robert Morris, copied to Peter Hicks and
others sent at 5.28pm on 8 July 2005 entitled "NSBT T&T-SPRP",
[ACM.007.002.0463].
5. Email from Phillip Brogan to Peter Hicks, Robert Morris and others, at
10:14am on 16 July 2005, entitled “NSBT T&T – Summary”, attaching
Memorandum dated 16 July 2005, from Philip Brogan to Peter Hicks,
Robert Morris and others, entitled, “NSBT T&T – Progress Update",
[ACM.001.019.1444] and attachment [ACM.001.019.1445].
6. Email from David Plowman to Peter Hicks and Robert Morris, copied to
others sent at 3.14pm on 21 July 2005, entitled "NSBT-Expansion
Factors" with attachment entitled "NSBT-Expansion Factors Approach",
[RCG.001.001.5472] and attachments [RCG.001.001.5473],
[RCG.001.001.5474].
7. Email from Robert Morris to Peter Hicks and another, copied to Keith
Long, sent at 6.23pm on 21 July 2005 entitled "RE: NSBT - Expansion
Factors" with attached spreadsheet "Expansion1.xls", [RCG.001.001.5628]
and attachment [RCG.001.001.5630].
8. Email from Alan Broadbent to Peter Hicks and Robert Morris, sent at
5.36pm on 27 July 2005 entitled "Calibration Audit- PB Requirements"
with attachment entitled "Traffic Modelling Audit by PB.doc",
[ACM.001.062.8886] and attachment [ACM.001.062.8887].
9. Email from Deborah Hutchison to David Plowman, copied to Peter Hicks,
Robert Morris and others, sent at 7.44am on 28 July 2005 entitled "RE:
NSBT traffic modelling road network assumptions maps, "final" versions
as at 28 July" with attachment entitled "Network Assumptions V4.xls",
[ACM.001.112.3545] and attachment [ACM.001.112.3548].
10. Email from Robert Morris to Peter Hicks, Keith Long and others, sent at
9.41am on 2 August 2005 entitled "RE: Updated: RCM Traffic Meeting",
[RCG.001.001.6164].
11. Email from Robert Morris to Peter Hicks and Keith Long sent at 5.10pm
on 8 August 2005 entitled "RE: Expansion Factors" with attachment
entitled "NSBT ATC Count Analysis.xls", [RCG.001.001.6853] and
attachment [RCG.001.001.6854].
12. Email from Keith Long to Peter Hicks and Robert Morris, sent at 5.59pm
on 8 August 2005 entitled "RE: Expansion factors", [RCG.001.001.6855].
13. Email from Robert Morris to Peter Hicks and another, copied to Keith
Long, sent at 9.43pm on 11 August 2005, entitled "RE: Journey Time
Part B. North-South Bypass Tunnel
52
Data" with attachment entitled "JTS Analysis BobMorris RFM.xls",
[ACM.001.034.8161] and attachment [ACM.001.034.8163].
14. Email from Robert Morris to David Tucker, copied to Peter Hicks, Keith
Long and others, sent at 1.58pm on 15 August 2005 entitled "RE: Journey
Time Data" with attachments, [ACM.001.034.8154] and attachments
[ACM.001.034.8159] and [ACM.001.034.8160].
15. Email from Peter Hicks to Matthew McCarthy copied to Philip Brogan,
sent at 10:48am on 19 August 2005, entitled “Fwd: Couple of Issues”,
[ACM.007.002.1410].
16. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 17:32 on 22 August 2005, entitled “River City
Expansion Factors”, with attachment entitled “DRAFT River City Motorway
Expansion factors.doc”, [ACM.001.032.5142] and attachment
[ACM.001.032.5143].
17. Email from Keith Long to Matthew McCarthy and Robert Morris, copied to
Peter Hicks and others, sent at 1.47pm on 24 August 2005, entitled "RE:
River City Expansion Factors", [ACM.001.034.8105].
18. Email from Keith Long to Robert Morris and another, copied to Peter
Hicks and others, sent at 6.34am on 25 August 2005 entitled "RE: River
City Expansion Factors", [ACM.001.034.8109].
19. Email from Keith Long to Peter Hicks and Robert Morris, sent at 9.17am
on 29 August 2005 entitled "RE: Model Results- revised Journey Time
Reporting- 12:30 27/08/05", [ACM.001.062.7591].
20. Email from Philip Brogan, to Peter Hicks, sent at 8:33am on 30 August
2005, entitled “Sandy’s inputs”, with attachment entitled “Traffic Report
missing inputs 23Aug05.doc”, [ACM.001.034.3246] and attachment
[ACM.001.034.3248].
21. Email from Keith Long to Matthew McCarthy and copied to Peter Hicks
and others, sent at 16:33 on 31 August 2005, entitled “RE” NSBT –
Expansion Factors”, [ACM.001.034.0827].
22. Email from Keith Long to Matthew McCarthy, Peter Hicks and others, sent
at 13:13pm on 1 September 2005, entitled “RE: RCM Model Runs
01Sep05”, [ACM.001.062.7499].
23. Email from Keith Long to Matthew McCarthy, Peter Hicks, Robert Morris
and others, sent at 1.46pm on 1 September 2005, entitled “RE: RCM
Model Results 31Aug05", [ACM.001.062.7496] and attachment
[ACM.001.062.7498].
24. Email from Robert Morris to Peter Hicks and David Plowman, copied to
Keith Long, sent at 3.36pm on 4 September 2005, entitled "Expansion
Factors" with attachments, [RCG.001.001.7793] with attachments
[RCG.001.001.7794], [RCG.001.001.7795] and [RCG.001.001.7796].
25. Email from David Plowman to Peter Hicks, copied to Keith Long and
Robert Morris sent at 6.26am on 5 September 2005 entitled "Expansion
Factors Combined Approach" with attachments, [RCG.001.001.7811] with
attachments [RCG.001.001.7812], [RCG.001.001.7825],
[RCG.001.001.7826] and [RCG.001.001.7827].
Part B. North-South Bypass Tunnel
53
26. Email from Robert Morris to Peter Hicks and David Plowman, copied to
Keith Long, sent at 8.43am on 5 September 2005, entitled "RE: Expansion
Factors Combined Approach" with attachments, [RCG.001.001.7848] with
attachments [RCG.001.001.7851] and [RCG.001.001.7852].
27. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 9.30am on 9 September 2005 entitled "RCM AM Peak
Volumes", with attachments, [ACM.001.034.3412] with attachments
[ACM.001.034.3414], [ACM.001.034.3415] and [ACM.001.034.3416].
28. Email from Peter Hicks to Robert Morris, Keith Long and others, sent at
8.27am on 15 September 2005 entitled "RE:RCM Traffic Model Results
14Aug05", [ACM.001.034.0963].
29. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 4.05pm on 15 September 2005, entitled "RE: RCM
Traffic Model Result 14Aug05", [ACM.001.034.3298] and attachments
[ACM.001.034.3302], [ACM.001.034.3303] and [ACM.001.034.3304].
30. Email from Matthew McCarthy to Peter Hicks, Keith Long, Robert Morris
and others, sent at 5.15pm on 15 September 2005, entitled "RE: RCM
Traffic Model Result 14Aug05", [ACM.001.035.5370].
31. Email from Tracey Pershouse to Sandy Thomas, copied to Peter Hicks
and others, sent at 12:13pm on 19 September 2005, entitled “RE:
Presentation Comments, additions”, [ACM.001.038.3289] and attachment
[ACM.001.038.3290].
32. Email from Tracey Pershouse to Sandy Thomas, copied to Peter Hicks
and others, sent at 12:18pm on 20 September 2005, entitled “Expanded
EIS comparison with am peak volumes”, [ACM.001.038.3285],
[ACM.001.038.3287] and [ACM.001.038.3288].
33. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 12.38pm on 20 September 2005, entitled "RCM Toll
Price Sensitivity Results", [ACM.001.034.3317] with attachment
[ACM.001.034.3318].
34. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 2.20pm on 20 September 2005, entitled "Re: RCM Toll
Price Sensitivity Results", [ACM.001.034.3333] with attachment
[ACM.001.034.3335].
35. Email from Peter Hicks to Amanda Copping, Charles Mott and others,
copied to Robert Morris and others, sent at 9:09 on 23 September 2005,
entitled "Traffic Report - Draft One", [ACM.001.035.4680].
36. Email from Keith Long to Peter Hicks and Robert Morris sent at 12.25pm
on 27 September 2005 entitled "RE: RCM Toll Price Sensitivity Results",
[ACM.001.038.2417] with attachment [ACM.001.038.2421].
37. Email from Peter Hicks to Alan Broadbent, sent at 7:01am on 12 October
2005, entitled “Re: NSBT Story”, attaching a document entitled “Analysis
of CBD Trips” containing Peter Hicks' mark-up on an AECOM Australia
draft, [ACM.007.002.2416] with attachments [ACM.007.002.2418],
[ACM.007.002.2419], [ACM.007.002.2420], [ACM.007.002.2421], and
[ACM.007.002.2426].
Part B. North-South Bypass Tunnel
54
38. Email from Alan Broadbent to Peter Hicks, sent at 12:19pm on 12 October
2005, entitled “RE: NSBT Story”, with attachment entitled “The NSBT
Story”, [ACM.001.112.6768] with attachment [ACM.001.112.6772].
39. Email from Thao Oakey to Peter Hicks and others, sent at 9.20am on 20
October 2005, entitled "Sponsor meeting", [RCG.001.001.9352].
40. Email from Peter Hicks to Alan Broadbent and others, sent at 6:36am on
27 October 2005, entitled “RE: Traffic Report Changes”,
[ACM.001.033.7030] with attachments [ACM.001.033.7032] and
[ACM.001.033.7033].
41. Email from Peter Hicks to Sandy Thomas, sent at 15:36 on 29 October
2005, entitled "Comments on Traffic Report", [ACM.001.111.5985] and
attachments [ACM.001.111.5987], [ACM.001.111.5988] and
[ACM.001.111.5989].
42. Email from Sandy Thomas to Alan Broadbent sent at 12.50pm on 31
October 2005 entitled “ConnectEast Product Disclosure Statement of
October 2004”, [ACM.001.038.3602] and attachment
[ACM.001.038.3603].
43. Email from Sandy Thomas to Peter Hicks and, copied to Alan Broadbent,
sent at 11:30 on 2 November 2005 entitled "Traffic report: revised section
2.10 with updated drawings of alignments", [ACM.001.038.3761] and
attachment [ACM.001.038.3762].
44. Email from Keith Long to Peter Hicks, sent at 8:36am on 7 November
2005, entitled “RE: RCM”, [ACM.001.037.8897].
45. Email from Keith Long to Alan Broadbent and Peter Hicks, sent at 12:10
on 12 November 2005, entitled “RE: Expansion factors for non CBD trips”,
[ACM.001.037.9011] with attachment [ACM.001.037.9014].
46. Email from Alan Broadbent to Peter Hicks, sent at 12:44 on 14 November
2005, entitled “Expansion factor note – (Non Cbd Uplift)”,
[ACM.001.033.6811] with attachment [ACM.001.033.6812].
47. Email from Peter Hicks to Robert Morris and others, sent at 5.53pm on 15
November 2005, entitled "RE: Materials from this morning's EWG",
[ACM.001.033.6624] with attachment [ACM.001.033.6627].
48. Email from Peter Hicks to Stuart Marks sent at 4.38pm on 22 November
2005 entitled “RE: PDS page turn at 3pm”, [ACM.001.038.2839] and
attachment [ACM.001.038.2841].
49. Email from Peter Hicks to Sandy Thomas sent at 3.54pm on 26 November
2005 entitled “FW: PDS Traffic Report – Disclaimer”, [ACM.001.038.2579]
and attachment [ACM.001.038.2582].
50. Email from Ashley Yelds to Peter Hicks sent at 12.13pm on 30 November
2005 entitled “RE: Traffic Forecast PDS”, [ACM.001.033.9117] and
attachment [ACM.001.033.9121].
51. Email from Alan Broadbent to Peter Hicks, copied to others, sent at 12:47
on 30 November 2005, entitled “PDS Traffic Report – Maunsell
Comments”, [ACM.001.021.7960] with attachment [ACM.001.021.7963].
Part B. North-South Bypass Tunnel
55
52. Email from Peter Hicks to Ashley Yelds sent at 5.04pm on 30 November
2005 entitled “RE: Traffic Forecast PDS”, [ACM.001.033.8752] with
attachment [ACM.001.033.8755].
53. Email from Peter Hicks to Denis Johnston and Ashley Yelds and copied to
others, sent at 10:55am on 1 December 2005, entitled “RE: Traffic
Forecast PDS”, [ACM.001.033.8747].
54. Email from Alan Broadbent to Stuart Marks cc Peter Hicks sent at
12.26pm on 1 December 2005 entitled “Revised text for the Maunsell PDS
report”, [ACM.001.038.3235] with attachment [ACM.001.038.3236].
55. Email from Jabe Jerram to Peter Hicks and copied to others, sent at
6:01pm on 1 December 2005, entitled “RE: Revised text for the Maunsell
PDS report”, [ACM.001.038.3244].
56. The December 2005 Traffic Reports, [ACM.002.001.4568] and
[RCG.003.001.0245].
57. Email from Peter Hicks to Richard Jagger, copied to others, sent at
5:51am on 16 March 2006, entitled “RE: Unconstrained traffic”,
[ACM.001.038.4987].
58. Email from Alan Broadbent to Peter Hicks, sent at 12:45pm on 31 March
2006, entitled “$3.50 Expansion Factor Note”, [ACM.001.033.7187] with
attachment [ACM.001.033.7188].
59. North South Bypass Tunnel Project Minutes of Due Diligence Committee
Meeting No 1, dated 5 April 2006 [RCG.012.005.0072].
60. The April 2006 NSBT Traffic Supplement [ACM.001.038.4984].
61. North South Bypass Tunnel Project Minutes of Due Diligence Committee
Meeting No 2, dated 1 May 2006 [RCG.012.001.0045].
62. Email from Sandy Thomas to Alan Broadbent, sent at 3.53pm on 2 May
2006 entitled “ABN comments on Maunsell letter on section 9 of PDS”,
attaching email from Peter Hicks to Jabe Jerram cc others sent at 1.05am
on 2 May 2006 entitled “RE: NSBT PDS”, [ACM.001.038.5682] with
attachments [ACM.001.038.5683] and [ACM.001.038.5685].
63. Email from Richard Jagger to Robert Morris, Peter Hicks and others, sent
at 2:31pm on 5 May 2006, entitled "Traffic DDSC" attaching document
entitled "Traffic Due Diligence Subcommittee: Key Issues Report", dated 5
May 2006, [ACM.001.111.6657] and attachment [ACM.001.111.6658].
64. Email from Robert Morris to Richard Jagger and Scott Markwick, copied to
Peter Hicks and others, sent at 10.39am on 9 May 2006, entitled "RE:
DDC Traffic - further comment on exec summary", [ACM.001.033.7434].
65. Email from Michael Neal to Peter Hicks, Alan Broadbent and others sent
at 11.07pm on 7 May 2006 entitled “Re: Investor presentation”,
[ACM.001.049.4465].
66. Email from Peter Hicks to Scott Markwick and Richard Jagger cc Robert
Morris and others dated 11 May 2006 sent at 05.35, entitled "RE: Traffic
DDSC", [ACM.001.033.7420].
Part B. North-South Bypass Tunnel
56
67. Email from Richard Jagger to Peter Hicks and others, sent at 15:51 on 11
May 2006, entitled "Traffic DDSC 11 May Agenda" attaching the agenda
for the Traffic Due Diligence Subcommittee meeting held on 11 May 2006
and the Traffic Due Diligence Subcommittee: Key Issues Report,
[ACM.001.091.9645] with attachments [ACM.001.091.9646] and
[ACM.001.091.9647].
68. North South Bypass Tunnel Project Minutes of Due Diligence Committee
Meeting No 3, dated 12 May 2006 [RCG.005.005.0080].
69. Email from Peter Hicks to Malcolm Haack and Thao Oakey sent at
8.28am on 19 May 2006, entitled “RE: PDS clause re availability of
Maunsell report”, [ACM.001.015.3159].
70. The May 2006 Traffic Report [RCG.001.008.6302].
71. Email from Thao Oakey to Malcolm Haack sent at 11.52am on 23 May
2006 entitled “RE: Indemnity”, [ACM.001.015.3468] and attachment
[ACM.001.015.3473].
72. Email from Malcolm Haack to Peter Hicks and copied to others, sent at
5:00pm on 26 May 2006, entitled “NSBT update”, [ACM.001.015.3050].
73. Email from Peter Hicks to Alan Broadbent sent at 10.16am on 29 May
2006 entitled “RE: NSBT – PDS Verification”, [ACM.001.015.3228].
74. Email from Peter Hicks to Malcolm Haack sent at 6.01am on 1 June 2006
entitled “RE: Copy of Final Draft of Investigating Accountants Report”,
[ACM.001.017.3280] and attachment [ACM.001.017.3284].
75. Email from Peter Hicks to Malcolm Haack sent at 10.59am on 1 June
2006 entitled “RE: PDS Summary Letter”, [ACM.001.015.3143]
76. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Morris' AECOM Australia Actions
38. From in or about April 2005, Robert Morris:
(a) supervised, provided instructions, directions and other inputs, technical and other
advice, feedback and assistance to, and received, reviewed and accepted
feedback, advice, reports and other work product from, AECOM Australia
regarding, or in connection with matters concerning, or arising from, AECOM
Australia's NSBT Commission and AECOM Australia's NSBT Work;
(b) further to sub-paragraph (a) above, participated in the preparation, review, and, or
in the alternative, acceptance of what became AECOM Australia's Traffic
Forecasts and AECOM Australia's Traffic Reports; and
(c) communicated with AECOM Australia, with the RCM Consortium and with other
members of the RCM Project Team, regarding, or in connection with, AECOM
Australia's NSBT Work,
(together, Morris' AECOM Australia Actions).
Part B. North-South Bypass Tunnel
57
Particulars
Morris' AECOM Australia Actions as alleged above are illustrated in, and by, the
following documents:
1. Email from Peter Hicks to Robert Morris and others, sent at 14.53 on14
June 2005 entitled "re Traffic Meeting Wednesday 15th at 3pm
postponed" and attachment entitled "NSBT Traffic Progress 14 June
2005", [ACM.001.019.2710] and attachment [ACM.001.019.2712].
2. Email from David Plowman to Robert Morris, copied to Peter Hicks and
others, sent at 9.41am on 23 June 2005 entitled "NSBT-Traffic-X Factors",
[RCG.001.001.4679].
3. Email from Peter Hicks to David Plowman and Robert Morris, sent at
10.25am on 23 June 2005 entitled "NSBT-Traffic-X Factors",
[RCG.001.001.4683].
4. Email from Phillip Brogan to Robert Morris, copied to Peter Hicks and
others sent at 5.28pm on 8 July 2005 entitled "NSBT T&T-SPRP",
[ACM.007.002.0463].
5. Email from Robert Morris to Philip Brogan, sent at 20.05 on 8 July 20.05
entitled "RE: NSBT T&T - SPRP", [ACM.001.019.2873].
6. Email from Philip Brogan to Robert Morris and others, copied to Peter
Hicks and others, sent at 11.51am on 13 July 2005, entitled "RE: NSBT
T&T", [ACM.001.063.1281].
7. Email from Philip Brogan to Adam Chittendon and others including
Duncan Olde sent at 10:30am on 16 July 2005, entitled "NSBT T&T
Progress - Week 15" with attachments entitled "NSBT T&T Progress
Week 15.doc" and "NSBT T&T Fee Status Week 15.xls",
[ACM.001.004.3003] with attachments [ACM.001.004.3004],
[ACM.001.004.3007] and [ACM.001.004.3008].
8. Email from Phillip Brogan to Peter Hicks, Robert Morris and others, at
10:14am on 16 July 2005, entitled “NSBT T&T – Summary”, attaching a
memorandum dated 16 July 2005, from Philip Brogan to Peter Hicks,
Robert Morris and others, entitled, “NSBT T&T – Progress Update",
[ACM.001.019.1444] and attachment [ACM.001.019.1445].
9. Email from David Plowman to Peter Hicks and Robert Morris, copied to
others sent at 3.14pm on 21 July 2005, entitled "NSBT-Expansion
Factors" with attachment entitled "NSBT- Expansion Factors Approach",
[RCG.001.001.5472] and attachment [RCG.001.001.5473].
10. Email from Robert Morris to Peter Hicks and another, copied to Keith
Long, sent at 6.23pm on 21 July 2005 entitled "RE: NSBT - Expansion
Factors" with attached spreadsheet "Expansion1.xls", [RCG.001.001.5628]
and attachment [RCG.001.001.5630].
11. Email from Alan Broadbent to Peter Hicks and Robert Morris, sent at
5.36pm on 27 July 2005 entitled "Calibration Audit-PB Requirements" with
attachment entitled "Traffic Modelling Audit by PB.doc",
[ACM.001.062.8886] and attachment [ACM.001.062.8887].
Part B. North-South Bypass Tunnel
58
12. Email from Deborah Hutchison to David Plowman, copied to Peter Hicks,
Robert Morris and others, sent at 7.44am on 28 July 2005 entitled "RE:
NSBT traffic modelling road network assumptions maps, "final" versions
as at 28 July" with attachment entitled "Network Assumptions V4.xls",
[ACM.001.112.3545] and attachment [ACM.001.112.3548].
13. Email from Robert Morris to Peter Hicks, Keith Long and others, sent at
9.41am on 2 August 2005 entitled "Re: Updated: RCM Traffic Meeting",
[RCG.001.001.6164].
14. Email from Robert Morris to Peter Hicks and Keith Long sent at 5.10pm
on 8 August 2005 entitled "RE: Expansion Factors" with attachment
entitled "NSBT ATC Count Analysis.xls", [RCG.001.001.6853] and
attachment [RCG.001.001.6854].
15. Email from Keith Long to Peter Hicks and Robert Morris, sent at 5.59pm
on 8 August 2005 entitled "RE: Expansion factors", [RCG.001.001.6855].
16. Email from Robert Morris to Peter Hicks and another, copied to Keith
Long, sent at 9.43pm on 11 August 2005, entitled "RE: Journey Time
Data" with attachment entitled "JTS Analysis BobMorris RFM.xls",
[ACM.001.034.8161] and attachment [ACM.001.034.8163].
17. Email from Robert Morris to David Tucker, copied to Peter Hicks, Keith
Long and others, sent at 1.58pm on 15 August 2005 entitled "RE: Journey
Time Data" [ACM.001.034.8154] and attachments [ACM.001.034.8159]
and [ACM.001.034.8160].
18. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 17:32 on 22 August 2005, entitled “River City
Expansion Factors”, with attachment entitled “DRAFT River City Motorway
Expansion factors.doc”, [ACM.001.032.5142] and attachment
[ACM.001.032.5143].
19. Email from Keith Long to Matthew McCarthy and Robert Morris, copied to
Peter Hicks and others, sent at 1.47pm on 24 August 2005, entitled "RE:
River City Expansion Factors", [ACM.001.034.8105].
20. Email from Keith Long to Robert Morris and another, copied to Peter
Hicks and others, sent at 6.34am on 25 August 2005 entitled "Re: River
City Expansion Factors", [ACM.001.034.8109].
21. Email from Keith Long to Peter Hicks and Robert Morris, sent at 9.17am
on 29 August 2005 entitled "RE: Model Results- revised Journey Time
Reporting- 12:30 27/08/05", [ACM.001.062.7591].
22. Email from Keith Long to Matthew McCarthy, Peter Hicks, Robert Morris
and others, sent at 1.46pm on 1 September 2005, entitled “RE: RCM
Model Results 31Aug05", [ACM.001.062.7496] and attachment
[ACM.001.062.7498].
23. Email from Robert Morris to Peter Hicks and David Plowman, copied to
Keith Long, sent at 3.36pm on 4 September 2005, entitled "Expansion
Factors", [RCG.001.001.7793] with attachments [RCG.001.001.7794],
[RCG.001.001.7795] and [RCG.001.001.7796].
24. Email from David Plowman to Peter Hicks, copied to Keith Long and
Robert Morris sent at 6.26am on 5 September 2005 entitled "Expansion
Part B. North-South Bypass Tunnel
59
Factors Combined Approach", [RCG.001.001.7811] with attachments
[RCG.001.001.7812], [RCG.001.001.7825], [RCG.001.001.7826] and
[RCG.001.001.7827].
25. Email from Robert Morris to Peter Hicks and David Plowman, copied to
Keith Long, sent at 8.43am on 5 September 2005, entitled "RE: Expansion
Factors Combined Approach",[RCG.001.001.7848] with attachments
[RCG.001.001.7851] and [RCG.001.001.7852].
26. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 9.30am on 9 September 2005 entitled "RCM AM Peak
Volumes", [ACM.001.034.3412] with attachments [ACM.001.034.3414],
[ACM.001.034.3415] and [ACM.001.034.3416].
27. Email from Peter Hicks to Robert Morris, Keith Long and others, sent at
8.27am on 15 September 2005 entitled "RE: RCM Traffic Model Results
14Aug05", [ACM.001.034.0963].
28. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 4.05pm on 15 September 2005, entitled "RE: RCM
Traffic Model Result 14Aug05" [ACM.001.034.3298] and attachments
[ACM.001.034.3302], [ACM.001.034.3303] and [ACM.001.034.3304].
29. Email from Matthew McCarthy to Peter Hicks, Keith Long, Robert Morris
and others, sent at 5.15pm on 15 September 2005, entitled "RE: RCM
Traffic Model Result 14Aug05", [ACM.001.035.5370].
30. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 12.38pm on 20 September 2005, entitled "RCM Toll
Price Sensitivity Results", [ACM.001.034.3317] with attachment
[ACM.001.034.3318].
31. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 2.20pm on 20 September 2005, entitled "Re: RCM Toll
Price Sensitivity Results", [ACM.001.034.3333] with attachment
[ACM.001.034.3335].
32. Email from Peter Hicks to Amanda Copping, Charles Mott and others,
copied to Oleg Vornik and others, sent at 09:09 on 23 September 2005,
entitled "Traffic Report - Draft One", [ACM.001.035.4680].
33. Email from Keith Long to Peter Hicks and Robert Morris sent at 12:25pm
on 27 September 2005 entitled "RE: RCM Toll Price Sensitivity Results",
[ACM.001.038.2417] with attachment [ACM.001.038.2421].
34. Email from Peter Hicks to Robert Morris and others, sent at 5:53pm on 15
November 2005, entitled "RE: Materials from this morning's EWG",
[ACM.001.033.6624] with attachment [ACM.001.033.6627].
35. Email from Richard Jagger to Robert Morris, Peter Hicks and others, sent
at 2:31pm, on 5 May 2006, entitled "Traffic DDSC" attaching document
entitled "Traffic Due Diligence Subcommittee: Key Issues Report", dated 5
May 2006 [ACM.001.111.6657] with attachment [ACM.001.111.6658].
36. Email from Robert Morris to Richard Jagger and Scott Markwick, copied to
Peter Hicks and others, sent at 10:39am on 9 May 2006, entitled "RE:
DDC Traffic - further comment on exec summary", [ACM.001.033.7434].
Part B. North-South Bypass Tunnel
60
37. Email from Peter Hicks to Scott Markwick and Richard Jagger cc Robert
Morris and others sent at 05:35 on 11 May 2006, entitled "RE: Traffic
DDSC", [ACM.001.033.7420].
38. North South Bypass Tunnel Project Minutes of Due Diligence Committee
Meeting No 1, dated 5 April 2006, [RCG.012.005.0072].
39. North South Bypass Tunnel Project Minutes of Due Diligence Committee
Meeting No 2, dated 1 May 2006, [RCG.012.001.0045].
40. Email from Richard Jagger to Peter Hicks and others, sent at 15:51 on 11
May 2006, entitled "Traffic DDSC 11 May Agenda" attaching the agenda
for the Traffic Due Diligence Subcommittee meeting held on 11 May 2006
and the Traffic Due Diligence Subcommittee: Key Issues Report,
[ACM.001.091.9645] with attachments, [ACM.001.091.9646] and
[ACM.001.091.9647].
41. North South Bypass Tunnel Project Minutes of Due Diligence Committee
Meeting No 3, dated 12 May 2006, [RCG.005.005.0080].
42. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Mott's AECOM Australia Actions
39. From in or about April 2005, Charles Mott:
(a) supervised, provided instructions, directions and other inputs, technical and other
advice, feedback and, or in the alternative, assistance to, and received, reviewed
and accepted feedback, advice, reports and other work product from, AECOM
Australia regarding, or in connection with matters concerning, or arising from,
AECOM Australia's NSBT Commission and AECOM Australia's NSBT Work;
(b) further to sub-paragraph (a) above, participated in the preparation, review, and, or
in the alternative, acceptance of what became AECOM Australia's Traffic
Forecasts and AECOM Australia's Traffic Reports; and
(c) communicated with AECOM Australia, with the RCM Consortium and with other
members of the RCM Project Team, regarding, or in connection with AECOM
Australia's NSBT Work,
(together, Mott's AECOM Australia Actions).
Particulars
Mott's AECOM Australia Actions as alleged above are illustrated in, and by, the
following documents:
1. Email from Peter Hicks to Robert Morris and others sent at 2:54pm on 14
June 2005 entitled "Traffic Meeting Wednesday 15th at 3pm postponed"
attaching "NSBT Traffic Progress 14 June 2005", [ACM.001.019.2710]
and attachment [ACM.001.019.2712].
2. Email from Ben Cooper to Shaun Tabone, Philip Brogan and others,
copied to Peter Hicks, Charles Mott and others, sent at 12:11 on 7 April
Part B. North-South Bypass Tunnel
61
2005, entitled "NSBT - Minutes to 7 April PAX Workshop", attaching a
document entitled "NSBT Traffic Workshop Output", [ACM.001.019.1213]
and attachment [ACM.001.019.1215].
3. Email from Alan Broadbent to Philip Brogan and others, copied to Stuart
Dalziel and others, sent at 09:05 on 27 May 2005, entitled "Technical
Modelling Meeting with the Banks", [ACM.001.012.9841].
4. Email from Peter Hicks to Charles Mott and others, sent at 14:53 on 14
June 2005, entitled "Traffic Meeting Wednesday 15th at 3pm postponed",
with attachment entitled "NSBT Traffic Progress 14 June 2005",
[ACM.001.019.2710] and attachment [ACM.001.019.2712].
5. Email from Alan Broadbent to Charles Mott, copied to Ian Sinclair, sent at
08:12 on 11 July 2005, entitled "Sydney Focus Groups",
[ACM.001.038.2136].
6. Email from Duncan Olde to David Plowman, copied to Charles Mott and
others, sent at 14:30 on 11 July 2005, entitled "Re: NSBT - Financiers
initial Roadshow", and attachment entitled "Roadshow agenda",
[RCG.001.001.5070] and attachment [RCG.001.001.5073].
7. Email from Thao Oakey to David Plowman and Duncan Olde, copied to
Charles Mott and others, sent at 15:02 on 11 July 2005, entitled "RE:
NSBT - Financiers initial "Roadshow", [RCG.001.001.5077].
8. Email from Charles Mott to Alan Broadbent and others, sent at 14:35 on
17 July 2005, entitled "RE: River City Motorway Focus Groups",
[ACM.001.034.4687].
9. Email from Peter Hicks to Amanda Copping, Charles Mott and others,
copied to Nicholas Entsch and others, sent at 07:18 on 5 September
2005, entitled "Almost Final Traffic Runs", and attachment entitled "Equity
2011 (0290)", [ACM.007.002.1666] with attachment [ACM.007.002.1668].
10. Email from Peter Hicks to Amanda Copping, Charles Mott and others,
copied to Oleg Vornik and others, sent at 09:09 on 23 September 2005,
entitled "Traffic Report - Draft One", [ACM.001.035.4680].
11. Email from Peter Hicks to Charles Mott, sent at 09:28 on 10 October
2005, entitled "RE: The Hard Questions", attaching a document entitled
"051004_RCM_Traffic Model Issues 10Oct05", [NIR.001.001.0028] with
attachment [NIR.001.001.0030].
12. Email from Adam Chittendon to Peter Hicks, copied to Charles Mott,
Duncan Olde and Richard Jagger, sent at 4.22pm on 11 October 2005,
entitled "NSBT-Traffic Review Queries", [ACM.001.033.6652] with
attachment [ACM.001.033.6656].
13. Email from Peter Hicks to Amanda Copping, Charles Mott and others,
sent at 13:30 on 18 October 2005, entitled "Meeting with Calum
Hutcheson", and attachment entitled "CHutch Question 18Oct05",
[ACM.001.037.9035] with attachment [ACM.001.037.9037].
14. Email from Nicholas Entsch to Peter Hicks, copied to Charles Mott and
others, sent at 09:13 on 26 October 2005, entitled "NSBT Q&A", and
attachments entitled "051025_RCM_NSBT growth" and
Part B. North-South Bypass Tunnel
62
"051025_RCM_Q&A.doc", [ACM.001.111.6254] and attachments
[ACM.001.111.6255] and [ACM.001.111.6256].
15. Email from Thao Oakey to Peter Hicks, Charles Mott and others, sent at
9:20am on 19 October 2005 entitled "Sponsor meeting"
[RCG.001.001.9352].
16. Email from Duncan Olde to Thao Oakey, Peter Hicks, Charles Mott and
others, sent at 13:56 on 20 October 2005, entitled "RE: Sponsor meeting",
[RCG.001.001.9366].
17. Email from Peter Hicks to Nicholas Entsch and others, copied to Frank
Schramm and Charles Mott, sent 05:43 on 26 October 2005, entitled
"Babcock and Brown", and attachment entitled "B&B Question 26Oct05",
[ACM.001.033.6661] with attachment [ACM.001.033.6663].
18. Email from Nicholas Entsch to Peter Hicks, copied to Charles Mott and
Alan Broadbent, sent at 08:32 on 7 November 2005, entitled "Q&A", and
attachments entitled "051106_RCM_BBC questions waiting" and
"051025_RCM_NSBT growth", [ACM.001.033.7000] and attachments
[ACM.001.033.7001] and [ACM.001.033.7003].
19. Email from Peter Hicks to Stuart Marks, Charles Mott and others, copied
to Richard Jagger and others, sent at 17:53 on 15 November 2005,
entitled "RE: Materials from this morning's EWG", and attachment entitled
"AMP 15Nov05", [ACM.001.111.5874] and attachment
[ACM.001.111.5877].
20. Email from Peter Hicks to Denis Johnston, copied to Charles Mott and
Alan Broadbent, sent at 18:00 on 17 November 2005, entitled "Papers in
advance of phone call", and attachment entitled "Bilfinger Berger
17Nov05", [ACM.001.033.7005] and attachment [ACM.001.033.7006].
21. North South Bypass Tunnel Project Minutes of Due Diligence Committee
Meeting No 3, dated 12 May 2006, [RCG.005.005.0080].
22. North South Bypass Tunnel Project Minutes of Due Diligence Committee
Meeting No 1, dated 5 April 2006, [RCG.012.005.0072].
23. North South Bypass Tunnel Project Minutes of Due Diligence Committee
Meeting No 2, dated 1 May 2006, [RCG.012.001.0045].
24. North South Bypass Tunnel Project Minutes of Due Diligence Committee
Meeting No 4, dated 13 June 2006, [RCG.005.007.0001].
25. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Coleman's AECOM Australia Actions
40. From no later than mid-August 2005 until on or about 16 May 2006, Malcolm Coleman:
(a) received, reviewed and accepted feedback, advice, reports and other work
product from AECOM Australia regarding, or in connection with matters
Part B. North-South Bypass Tunnel
63
concerning, or arising from, AECOM Australia's NSBT Commission and AECOM
Australia's NSBT Work;
(b) further to sub-paragraph (a) above, participated in the review and, or in the
alternative, acceptance of what became AECOM Australia's Traffic Forecasts and
AECOM Australia's Traffic Reports; and
(c) communicated with AECOM Australia, with the RCM Consortium and with other
members of the RCM Project Team, regarding, or in connection with, AECOM
Australia's NSBT Work,
(together, Coleman's AECOM Australia Actions).
Particulars
Coleman's AECOM Australia Actions as alleged above are illustrated in, and by,
the following documents:
1. Email from Peter Hicks to Charles Mott and others sent at 15:20 on 16
August 2005, entitled "Welcome to additional ABN AMRO resources",
[ACM.001.019.2717].
2. Email from Stuart Dalziel to Peter Hicks and others including Malcolm
Coleman sent at 15:55 on 19 August 2005, entitled "NSBT T&T Progress -
Week 20" with attachments entitled "NSBT T&T Progress Week 20.doc"
and NSBT T&T Fee Status Week 20.xls", [ACM.001.027.1113] and
attachments [ACM.001.027.1115] and [ACM.001.027.1118].
3. Email from Peter Hicks to Amanda Copping and others including Malcolm
Coleman sent at 07:18 on 5 September 2005, entitled "Almost Final
Traffic Runs" with attachment entitled "Equity 2011 (0290).xls",
[ACM.007.002.1666] and attachment [ACM.007.002.1668].
4. Email from Peter Hicks to Peter Hicks and others and copying Richard
Jagger and others including Malcolm Coleman sent at 15:50 on 13
September 2005, entitled "Traffic Presentation - Next Monday/Tuesday"
with attachment entitled "NSBT Traffic Presentatrions.zip",
[ACM.001.035.5314] and attachment [ACM.001.035.5316].
5. Email from Peter Hicks to Amanda Copping and others including Malcolm
Coleman sent at 09:09 on 23 September 2005, entitled "Traffic Report -
Draft One", [ACM.001.035.4680].
6. Email from Peter Hicks to Richard Jagger copying in Malcolm Coleman
and others sent at 04:37 on 3 October 2005, entitled "RE: Questions
raised", [ACM.001.111.5983].
7. Email from Michael Hermans to Malcolm Coleman, Amanda Copping and
Richard Jagger sent at 04:43 on 5 October 2005, entitled "Re: NSBT
Traffic etc" with attachment entitled "Traffic Excertps.xls",
[ACM.001.033.6718] and attachment [ACM.001.033.6722].
8. Email from Peter Hicks to Amanda Copping and others including Malcolm
Coleman sent at 14:30 on 18 October 2005, entitled "FW: Meeting with
Calum Hutcheson" with attachment entitled "CHutch Question
18Oct05.doc", [ACM.001.037.9035] and attachment [ACM.001.037.9037].
Part B. North-South Bypass Tunnel
64
9. Email from Thao Oakey to Peter Hicks and others including Malcolm
Coleman sent at 09:20 on 20 October 2005, entitled "Sponsor meeting",
[RCG.001.001.9352].
10. Email from Peter Hicks to Stuart Marks and others including Malcolm
Coleman sent at 17:53 on 15 November 2005, entitled "RE: Materials
from this morning's EWG" with attachment entitled "AMP 15nov05.doc",
[ACM.001.033.6624] and attachment [ACM.001.033.6627].
11. Email from Malcolm Coleman to Peter Hicks and others sent at 09:26 on
23 November 2005, entitled "QTC Review of TransApex Projects" with
attachment entitled "QTC_Review.doc", [RCG.001.002.2675] and
attachment [RCG.001.002.2676].
12. Email from Peter Hicks to David Plowman and others including Malcolm
Coleman sent at 08:20 on 4 December 2005, entitled "RE: NSBT - Final
Draft of ECR", [RCG.001.002.3537].
13. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Olde's AECOM Australia Actions
41. From no later than in or about April 2005 to on or about 17 August 2005, Duncan Olde:
(a) provided inputs and feedback and assistance to, and received, reviewed and
accepted feedback, advice, reports and other work product from, AECOM
Australia regarding, or in connection with matters concerning, or arising from,
AECOM Australia's NSBT Commission and AECOM Australia's NSBT Work; and
(b) communicated with AECOM Australia, with the Sponsor Clients and with other
members of the RCM Project Team, regarding, or in connection with, AECOM
Australia's NSBT Work,
(together, Olde's AECOM Australia Actions).
Particulars
Olde's AECOM Australia Actions as alleged above are illustrated in, and by, the
following documents:
1. Email from Peter Hicks to Adam Chittendon and others including Duncan
Olde, sent at 8:43am on 6 May 2005, entitled "FW: From NSBT Integrated
Project Team on NSBT - Data Room Update", [ACM.001.020.7744].
2. Email from Philip Brogan to Alan Broadbent and others including Duncan
Olde, sent at 6:57am on 12 May 2005, entitled "NSBT T&T Progress
Meeting Week 6 -Actions", [ACM.001.027.1162].
3. Email from Peter Hicks to Bob Hunter and others including Duncan Olde,
sent at 1:32pm on 13 May 2005, entitled "RE: Respondents External
Tender Costs", [RCG.001.001.3608].
Part B. North-South Bypass Tunnel
65
4. Email from Philip Brogan to Adam Chittendon and others including
Duncan Olde, sent at 15:49 on 15 May 2005, entitled "NSBT T&T - Week
6", [ACM.001.019.1372].
5. Email from Peter Hicks to Michael Batchelor and others including Duncan
Olde, sent at 4:26pm on 17 May 2005, entitled "Meeting to finalise
Maunsell arrangement re traffic modelling on NSBT",
[ACM.001.016.2287].
6. Email from Peter Hicks to Adam Chittendon and others including Duncan
Olde, sent at 12:09 on 20 May 2005, entitled "FW: Letter from
Queensland Motorway re Involvement NSBT" and attachment entitled "Let
QM Involvement NSBT.pdf", [RCG.001.001.3924] and attachment
[RCG.001.001.3925].
7. Email from Peter Hicks to Peter Hicks, Duncan Olde and others, sent at
12:21pm on 20 May 2005, entitled "Meeting with Tracey Purshouse re
explanation of Maunsell approach", [ACM.001.063.2940].
8. Email from Duncan Olde to Ian Sinclair and others, sent at 15:02 on 22
May 2005, entitled "Re: NSBT - Key Messages" and attachment entitled
"NSBT key messages 050519 (ABN Comment).doc", [RCG.001.001.3961]
and attachment [RCG.001.001.3964].
9. Email from Peter Hicks to Adam Chittendon and others including Duncan
Olde, sent at 5.27pm on 24 May 2005, entitled "Thursday Traffic Meeting
3-5pm", [ACM.001.063.2907].
10. Email from Peter Hicks to Philip Brogan and others including Duncan
Olde, sent at 08:53 on 26 May 2005, entitled "Re: Thursday Traffic
Meeting 3-5pm", [ACM.001.063.2907].
11. Email from Thao Oakey to Charles Mott, Duncan Olde and others, sent at
12:47 on 27 May 2005, entitled "NSBT Sponsor meeting outcomes" with
attachment entitled "Outcomes May 25.doc", [RCG.001.001.4126] and
attachment [RCG.001.001.4127].
12. Email from Philip Brogan to Adam Chittendon and others including
Duncan Olde, sent at 14:27 on 29 May 2005, entitled "NSBT T&T
Progress - Week 8" with attachments entitled "NSBT T&T Progress -
Week 8.doc", "NSBT T&T Fee Status Week 8.xls", "2005_2305
Demographic and Socio-Economic Forecasts.doc", [ACM.001.012.9844]
and attachments [ACM.001.012.9845], [ACM.001.012.9847] and
[ACM.001.012.9848].
13. Email from Duncan Olde to Philip Brogan, sent at 2:41pm on 29 May
2005, entitled "Re: NSBT T&T Progress - Week 8", [ACM.001.019.1962].
14. Email from Philip Brogan to Adam Chittendon and others, Including
Duncan Olde sent at 12:19 on 7 June 2005, entitled "NSBT T&T Progress
- Week 9" with attachments entitled "NSBT T_T Progress Week 9.doc",
"NSBT T&T Fee Status Week 9.xls", [ACM.001.013.2803] and
attachments [ACM.001.013.2804] and [ACM.001.013.2806].
15. Email from Thao Oakey to Duncan Olde and others, sent at 1:49pm on 7
June 2005, entitled "Agenda - Sponsors meeting tomorrow 1:30pm at Bid
office", [RCG.001.001.4382].
Part B. North-South Bypass Tunnel
66
16. Email from Peter Hicks to Thao Oakey, Duncan Olde and others, sent at
12:10 on 8 June 2005, entitled "Re: Agenda - Sponsors meeting tomorrow
1:30pm at Bid office" and attachment entitled "NSBT key messages
8June2005.doc", [RCG.001.001.4382] and attachment
[RCG.001.001.4383].
17. Email from Peter Hicks to Adam Chittendon and others including Duncan
Olde, sent at 5:07pm on 8 June 2005, entitled "Todays presentation" [sic].
with attachment entitled "Internal Traffic Presentation 050609.ppt",
[ACM.001.012.9860] and attachment [ACM.001.012.9862].
18. Email from Philip Brogan to Adam Chittendon and others including
Duncan Olde, sent at 13:10 on 10 June 2005, entitled "NSBT T&T
Progress - Week 10" with attachments entitled "NSBT T&T Progress
Week 10.doc", "NSBT T&T Fee Status Week 10.xls", [ACM.001.013.2595]
and attachments [ACM.001.013.2596] and [ACM.001.013.2598].
19. Email from Peter Hicks to Adam Chittendon and others including Duncan
Olde sent at 2:54pm on 14 June 2005, entitled "Traffic Meeting
Wednesday 15th at 3pm postponed" with attachment entitled "NSBT
Traffic Progress 14 June 2005.doc", [ACM.001.019.2710] and attachment
[ACM.001.019.2712].
20. Email from Thao Oakey to Charles Mott, Duncan Olde and others, sent at
16:46 on 24 June 2005, entitled "Outcomes from Sponsor meeting" with
attachment entitled "Outcomes June 22.doc", [RCG.001.001.4746] and
attachment [RCG.001.001.4747].
21. Email from Philip Brogan to Adam Chittendon and others, including
Duncan Olde sent at 14:18 on 27 June 2005, entitled "NSBT T&T
Progress - Week 12" with attachments entitled "NSBT T&T Progress
Week 12.doc", "NSBT T&T Fee Status Week 12.xls", [ACM.001.004.2869]
and attachments [ACM.001.004.2870] and [ACM.001.004.2872].
22. Email from Bob Hunter to Ian Sinclair and others including Duncan Olde,
sent at 12:00 on 30 June 2005, entitled "Traffic Modelling Briefing/Q&A",
[ACM.001.056.4664].
23. Email from Adam Chittendon to Peter Hicks and others including Ben
Cooper and Duncan Olde, sent at 16:57 on 1 July 2005, entitled "NSBT-
BCC RDP Briefing" with attachment entitled "0506_29 NSBT RFP Briefing
Notes.doc", [RCG.001.001.4910] and attachment [RCG.001.001.4912].
24. Email from Robert Morris to Adam Chittendon and others including
Duncan Olde, sent at 12:21pm on 4 July 2005, entitled "Re: NSBT-ABN
RFP traffic/Toll Review", [ACM.001.019.2023].
25. Email from Philip Brogan to Adam Chittendon and others including
Duncan Olde, sent at 19:26 on 4 July 2005, entitled "NSBT T&T Progress
- Week 13" with attachments entitled "NSBT TT Progress Week 13.doc",
"NSBT T&T Fee Status Week 13.xls", [ACM.001.004.2571] and
attachments [ACM.001.004.2572] and [ACM.001.004.2574].
26. Email from Alan Broadbent to Duncan Olde and others, sent at 11:45 on 8
July 2005, entitled "RiverCity Motorway Focus Groups",
[ACM.001.019.1146].
Part B. North-South Bypass Tunnel
67
27. Email from Duncan Olde to David Plowman sent at 14:30 on 11 July
2005, entitled "Re: NSBT-Financiers initial "Roadshow" with attachment
entitled "Roadshow agenda.doc", [RCG.001.001.5070] and attachment
[RCG.001.001.5073].
28. Email from Duncan Olde to Thao Oakey sent at 15:27 on 11 July 2005,
entitled "Re: NSBT - Financiers initial 'Roadshow'" with attachment
entitled "0507_11 NSBT Financiers Roadshow.doc", [RCG.001.001.5097]
and attachment [RCG.001.001.5101].
29. Email from Philip Brogan to Adam Chittendon and others including
Duncan Olde, sent at 10:30 on 16 July 2005, entitled "NSBT T&T
Progress - Week 15" with attachments entitled "NSBT T&T Progress
Week 15.doc", "NSBT T&T Fee Status Week 15.xls", [ACM.001.004.3003]
with attachments [ACM.001.004.3004], [ACM.001.004.3007] and
[ACM.001.004.3008].
30. Email from Philip Brogan to Adam Chittendon and others including
Duncan Olde, sent at 15:45 on 29 July 2005, entitled "NSBT T&T
Progress - Week 17" with attachments entitled "NSBT T&T Progress
Week 17.doc" and "NSBT T&T Fee Status Week 17.xls",
[ACM.001.027.1107] with attachments [ACM.001.027.1109] and
[ACM.001.027.1112].
31. Email from Philip Brogan to Adam Chittendon and others including
Duncan Olde, sent at 12:26 on 5 August 2005, entitled "NSBT T&T
Progress - Week 18" with attachments entitled "NSBT T&T Progress
Week 18.doc" and "NSBT T&T Fee Status Week 1/.xls",
[ACM.001.019.2041] with attachments [ACM.001.019.2042] and
[ACM.001.019.2044].
32. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
NIEIR's Work, NIEIR's Additional Statements, AECOM Australia's reliance and Hicks' NIEIR
Actions
NIEIR's Work
42. From in or about May 2005 and pursuant to NIEIR's Engagement, NIEIR:
(a) undertook demand scenario building for the Two Traffic Forecast Scenarios;
(b) used its models and databases to produce, and provide, economic, population,
employment, trip tables and freight growth projections;
(c) developed models to produce future year trip tables;
(d) developed forecasts and factors included in the models;
(e) developed future year trip tables;
(f) undertook analyses and provided information, advice and inputs relating to:
Part B. North-South Bypass Tunnel
68
(i) population growth by local area to the end of the NSBT Concession
period;
(ii) industry output by industry and local area;
(iii) employment by industry and employment of residents;
(iv) the current and likely future patterns of freight and travel movements
between local areas and diverse destinations; and
(v) the value of travel time savings (VTTS) and estimations of toll diversion;
(g) analysed historical population, population growth, socio-demographic,
employment and economic data, relevant national and state demographic and
economic forecasts and NIEIR's own projections for Brisbane and South East
Queensland;
(h) analysed relevant industry output, regional factors, economic, planning and
development trends and issues, and international economic conditions;
(i) modelled future economic growth, population and employment;
(j) determined what it considered to be reasonably likely future relevant economic
conditions, economic growth, population, population growth and employment
under each of the Two Traffic Forecast Scenarios;
(k) modelled what it considered to be likely relevant future land uses under each of
the Two Traffic Forecast Scenarios, after taking into account analysis previously
undertaken by NIEIR for the BCC in connection with the BCC's "Long Run
Infrastructure Plan";
(l) determined what it considered to be relevant, reasonably likely future land uses
under each of the Two Traffic Forecast Scenarios;
(m) forecast overall population growth, economic growth and its employment
implications, land use changes and future regional distributions of population and
employment under each of the Two Traffic Forecast Scenarios;
(n) analysed what it regarded as relevant travel drivers and patterns;
(o) further to sub-paragraph (n) above, analysed what it considered to be current and
likely future patterns of freight and travel movements between local areas and
diverse destinations;
(p) modelled and estimated, what it considered to be reasonably likely relevant trip
generation rates under each of the Two Traffic Forecast Scenarios for various
types of trips, for each relevant travel zone, using NIEIR's land use and
demographic data for each such zone;
(q) undertook such other activities as it determined were necessary for the
production of the patronage and revenue forecasts required for the NSBT Project;
(r) prepared, and delivered to the RCM Consortium, and to AECOM Australia,
information containing and, or in the alternative, regarding its work; and
(s) prepared, and participated in, presentations regarding its work and NSBT traffic
matters,
(collectively, NIEIR's Work).
Part B. North-South Bypass Tunnel
69
Particulars
NIEIR's Work as alleged above is identified in the following documents:
1. Email dated 17 May 2005 from Peter Hicks to Alan Broadbent and others
for and on behalf of AECOM Australia, Dr Craig Shepherd for and on
behalf of NIEIR, Ben Cooper and others [ACM.001.038.6102] with an
attachment being a proposal from NIEIR in relation to the NSBT Project
created on or about 17 May 2005 [ACM.001.038.6105].
2. Letter dated 30 June 2005, from Dr Craig Shepherd, for and on behalf of
NIEIR, to the Sponsor Clients; [NIR.001.001.0001].
3. Email from Thao Oakey to Dr Craig Shepherd sent at 2.45pm on 30 June
2005 entitled “NIEIR mandate letter”, [NIR.001.002.0001] and attachment
[NIR.001.002.0002].
4. Email from Bob Hunter to Ian Sinclair, Adam Chittendon, Duncan Olde,
Ben Cooper and others sent at 12:00 on 30 June 2005, entitled "Traffic
Modelling Briefing/Q&A", [ACM.001.056.4664].
5. Email from Dr Craig Shepherd to Adam Chittendon sent at 17:36 on 25
July 2005, entitled "Re: Roadshow 'Dry Run' Details for 27th July, 2005"
with attachment entitled "Financiers Roadshow NIEIR Draft 25thJuly.ppt",
[NIR.001.001.0359] and attachment [NIR.001.001.0361].
6. Email from Peter Hicks to Adam Chittendon and David Plowman, copied
to Dr Craig Shepherd sent at 10:33 on 2 August 2005, entitled "Financiers
Roadshow NIEIR Draft 29thJuly NP 2000Version.ppt",
[RCG.001.001.6166] and attachment [RCG.001.001.6167]
7. Project Overview and Initial Technical Briefing North-South Bypass
Tunnel: A Presentation to Project Financiers dated August 2005
[RCG.001.006.0385] slides 53-77.
8. NIEIR Technical Note on 2004v2.doc [ACM.001.015.3398].
9. 2011 NIEIR BSTM Run3.xls [ACM.001.015.3395].
10. Debt and Equity 2011 2021 23rd Aug CS Deliver. xls
[ACM.001.015.3397].
11. AM Peak City and RiverCrossings.xls [ACM.001.112.4687].
12. Revision Debt 2011 CS 5 Sept.xls [ACM.001.015.3394].
13. 2016 and 2026 CS 9 Sept.xls [ACM.001.015.3396].
14. 2011NIEIRBSTMRun2.xls [ACM.001.038.1768].
15. 2011_te.xls [ACM.003.062.0126].
16. Revision TE LU 2011 CS 5th Sept.xls [ACM.001.034.4702].
17. NIEIR Technical Note 2005.doc [ACM.001.062.8575].
18. Letter dated 10 May 2006, from Dr Peter Brain, for and on behalf of NIEIR
to Peter Hicks [ACM.001.033.7430].
Part B. North-South Bypass Tunnel
70
19. The December 2005 Traffic Reports [ACM.002.001.4568] and
[RCG.003.001.0245].
20. The May 2006 Traffic Report [RCG.001.008.6302] pages 57-82.
21. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
NIEIR's delivery of NIEIR's Growth Forecasts and NIEIR's Additional Statements
43. Further to paragraph 42 herein, between August 2005 and May 2006, NIEIR:
(a) delivered NIEIR's Growth Forecasts to the RCM Consortium and AECOM
Australia; and
(b) stated, and represented, to the RCM Consortium, to AECOM Australia and to
RCM Financiers and Investors:
(i) that Queensland was a high economic growth state;
(ii) that Queensland was a large and growing economy, outpacing all other
Australian states;
(iii) that Queensland was a high population growth state;
(iv) that Queensland's population growth was balanced as between retirement
and other growth, which created employment, generated families and
produced traffic;
(v) that Queensland was youth oriented and increasingly skilful;
(vi) that Queensland had successfully developed a strong share of Australia's
international migrant destinations;
(vii) that the population of south-east Queensland would grow from 2.4 million
people in 2001 to 3.6 million by 2026;
(viii) that the population of south-east Queensland in 2026 would equal the
entire population of Queensland in 2001;
(ix) that south-east Queensland represented 64% of the Queensland
economy in 2001 and its share was growing;
(x) that economic growth within the high economic growth state of
Queensland centered on Brisbane;
(xi) that each of the following were features of the Brisbane economy which
provided a strong base for future economic growth:
(A) population growth;
(B) skills intensification;
(C) transport and logistics options for the entire south-east
Queensland region;
Part B. North-South Bypass Tunnel
71
(D) "Trade Coast" development and growth in airport and seaport
activity;
(E) lifestyle choices supporting construction and service sectors; and
(F) Brisbane had the majority of Queensland's strong share of
Australia's international migrant destinations;
(xii) that Brisbane would have 800,000 or 41% more residents in 2026 than in
2004;
(xiii) that the Brisbane and Moreton Bay statistical divisions would include the
majority of Queensland's growth, accounting for 74% of Queensland's
population increase to 2026;
(xiv) that both Brisbane, and zones within Brisbane of particular relevance to
the NSBT, relied heavily on private transport;
(xv) that relevant governments were committed to growth and economic
fundamentals, including transport;
(xvi) that the NSBT had high strategic and economic value because:
(A) Brisbane CBD remained the major employment zone in Brisbane;
(B) that role would not change significantly in the future;
(C) the NSBT would offer airport and port linkages;
(D) growth in the Brisbane region means that growth relevant to the
NSBT was expected;
(E) the NSBT would be connected to important sites and activities;
(F) the NSBT would provide a river crossing for "vast populations to
the north and south";
(G) there were gentrifying inner city (fringe) areas at either end of what
would be the NSBT with increasing employment and housing
opportunities, including in respect of Newstead, Fortitude Valley,
"Gabba" and "major health precincts";
(xvii) innovation was directly centered on the NSBT catchment;
(xviii) critical sites for education, health provision and suburbs likely to generate
"new economy business" were all located in the vicinity of the NSBT;
(xix) the NSBT, both to its north and south, would have homogenous
catchments across a range of measures (including population, population
growth, income, employment, industry profile, recent housing growth)
which exhibited high car dependency cemented by land use planning and
social norms;
(xx) the NSBT catchment area could expect growth in population, population
and housing;
(xxi) the NSBT would also benefit from significant non-catchment population
growth; and
Part B. North-South Bypass Tunnel
72
(xxii) that NIEIR's analysis of more recent trends in participation rates
warranted higher, and increasingly higher, employment forecasts than
used in the Brisbane Strategic Traffic Model as it existed in or about 2004
and prior to April 2005 (the BSTM) and upon which AECOM Australia had
relied to prepare traffic forecasts for the BCC in late 2004 and early 2005
(AECOM Australia's Earlier EIS Forecasts) in respect of a possible
tunnel across the Brisbane River at or about where the NSBT is now
located (the Possible NSBT),
(these statements and representations are, collectively, NIEIR's Additional
Statements).
Particulars
1. As to sub-paragraph (a) above, NIEIR's Growth Forecasts are identified in
the following documents:
(a) NIEIR Technical Note on 2004v2.doc [ACM.001.015.3398];
(b) 2011 NIEIR BSTM Run3.xls [ACM.001.015.3395];
(c) Debt and Equity 2011 2021 23rd Aug CS Deliver. xls
[ACM.001.015.3397];
(d) AM Peak City and RiverCrossings.xls [ACM.001.112.4687];
(e) Revision Debt 2011 CS 5 Sept.xls [ACM.001.015.3394];
(f) 2016 and 2026 CS 9 Sept.xls [ACM.001.015.3396];
(g) 2011NIEIRBSTMRun2.xls [ACM.001.038.1768];
(h) 2011_te.xls [ACM.003.062.0126];
(i) Revision TE LU 2011 CS 5th Sept.xls [ACM.001.034.4702];
(j) NIEIR Technical Note 2005.doc [ACM.001.062.8575];
(k) the December 2005 Traffic Reports [ACM.002.001.4568] and
[RCG.003.001.0245];
(l) the April 2006 NSBT Traffic Supplement [ACM.001.038.4984]; and
(m) the May 2006 Traffic Report [RCG.001.008.6302].
2. As to sub-paragraph (b) above, NIEIR's Additional Statements are
identified within the following documents:
(a) email from Dr Craig Shepherd to Adam Chittendon sent at 17:36
on 25 July 2005, entitled "Re: Roadshow 'Dry Run' Details for 27th
July, 2005" with attachment entitled "Financiers Roadshow NIEIR
Draft 25thJuly.ppt", [NIR.001.001.0359] and attachment
[NIR.001.001.0361];
(b) email from Peter Hicks to Adam Chittendon and David Plowman,
copied to Dr Craig Shepherd sent at 10:33 on 2 August 2005,
entitled "Financiers Roadshow NIEIR Draft 29thJuly NP
2000Version.ppt", [RCG.001.001.6166] and attachment
[RCG.001.001.6167];
Part B. North-South Bypass Tunnel
73
(c) email from Dr Craig Shepherd to David Plowman, Peter Hicks and
Adam Chittendon sent at 08:31 on 4 August 2005, entitled
"Roadshow 8th August", [NIR.001.001.0164];
(d) Project Overview and Initial Technical Briefing North-South
Bypass Tunnel: A Presentation to Project Financiers dated August
2005 [RCG.001.006.0385] slides 53-77;
(e) the December 2005 Traffic Reports [ACM.002.001.4568] and
[RCG.003.001.0245]; and
(f) the May 2006 Traffic Report [RCG.001.008.6302].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
AECOM Australia's reliance upon NIEIR
44. AECOM Australia relied upon NIEIR's Work, NIEIR's Growth Forecasts and NIEIR's
Additional Statements:
(a) in performing AECOM Australia's NSBT Work; and
(b) further to sub-paragraph (a) above, in preparing and delivering AECOM
Australia's Traffic Forecasts, AECOM Australia's Traffic Reports and AECOM
Australia's Consented Material.
Particulars
AECOM Australia's reliance as alleged above is illustrated or indicated in, and by,
the following documents:
1. Project Overview and Initial Technical Briefing North-South Bypass
Tunnel: A Presentation to Project Financiers dated August 2005
[RCG.001.006.0385] slides 53-77.
2. NIEIR Technical Note on 2004v2.doc, [ACM.001.015.3398].
3. 2011 NIEIR BSTM Run3.xls, [ACM.001.015.3395].
4. Debt and Equity 2011 2021 23rd Aug CS Deliver. xls,
[ACM.001.015.3397].
5. AM Peak City and RiverCrossings.xls, [ACM.001.112.4687].
6. Revision Debt 2011 CS 5 Sept.xls, [ACM.001.015.3394].
7. 2016 and 2026 CS 9 Sept.xls, [ACM.001.015.3396].
8. 2011NIEIRBSTMRun2.xls, [ACM.001.038.1768].
9. 2011_te.xls, [ACM.003.062.0126].
10. Revision TE LU 2011 CS 5th Sept.xls, [ACM.001.034.4702].
11. NIEIR Technical Note 2005.doc, [ACM.001.062.8575].
Part B. North-South Bypass Tunnel
74
12. The December 2005 Traffic Reports, [ACM.002.001.4568] and
[RCG.003.001.0245].
13. The April 2006 NSBT Traffic Supplement, [ACM.001.038.4984].
14. The May 2006 Traffic Report [RCG.001.008.6302].
14A. Summary Letter.
15. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Hicks' NIEIR Actions
45. From no later than in or about June 2005, Peter Hicks:
(a) discussed and agreed the scope of NIEIR's Engagement;
(b) discussed, agreed, facilitated and supervised the interaction between NIEIR and
AECOM Australia;
(c) met with NIEIR regarding NIEIR's Engagement, NIEIR's Work, NIEIR's Growth
Forecasts and, or in the alternative, NIEIR's Additional Statements;
(d) met with AECOM Australia regarding NIEIR's Engagement, NIEIR's Work,
NIEIR's Growth Forecasts and, or in the alternative, NIEIR's Additional
Statements;
(e) considered comparisons between NIEIR and government population and
employment projections;
(f) corresponded with NIEIR; and
(g) otherwise co-ordinated and supervised, met and communicated with, provided
instructions and other inputs, feedback and assistance to, and received, approved
and accepted reports, advice, feedback and other work product, from, NIEIR, in
connection with NIEIR's Work, NIEIR's Growth Forecasts and NIEIR's Additional
Statements,
(together, Hicks' NIEIR Actions).
Particulars
Hicks' NIEIR Actions as alleged above are illustrated in, and by, the following
documents:
1. Meeting with NIEIR held on 23 May 2005, between 3pm and 5pm at the
NSBT Project office [ACM.001.012.9728].
2. Email from Peter Hicks to Alan Broadbent and others, sent at 10:21 on 17
May 2005, entitled "NIEIR working session" with attachment entitled
"NIEIR NSBT.doc", [ACM.001.038.6102] and attachment
[ACM.001.038.6105].
3. Email from Alan Broadbent to Peter Hicks and others sent at 12:59 on 25
May 2005, entitled "Minutes of Meeting with NIEIR" with attachment
Part B. North-South Bypass Tunnel
75
entitled "2005_2305 Demographic and Socio-Economic Forecasts.doc",
[ACM.001.012.9727] and attachment [ACM.001.012.9728].
4. Letter dated 30 June 2005, from Dr Craig Shepherd, for and on behalf of
NIEIR, to the Sponsor Clients, [NIR.001.001.0001].
5. Email from Peter Hicks to Adam Chittendon and David Plowman, copied
to Dr Craig Shepherd, sent at 10:33 on 2 August 2005, entitled
"Financiers Roadshow NIEIR Draft 29thJuly NP 2000Version.ppt",
[RCG.001.001.6166] and attachment [RCG.001.001.6167].
6. Email from Dr Craig Shepherd to Peter Hicks sent at 19:31 on 7
September 2005, entitled "Demand Changes", [NIR.001.001.0160] and
attachment [NIR.001.001.0161].
7. Email from Dr Craig Shepherd, for and on behalf of NIEIR, to Peter Hicks
and others, sent at 8.54am on 29 September 2005 entitled "Re: FW:
NSBT Model Review", with attachment entitled "PB comments CS
NIEIR.doc", [ACM.001.038.1217] with attachment [ACM.001.038.1220].
8. Email from Peter Hicks to Alan Broadbent, and copied to Dr Craig
Shepherd (NIEIR) and others, sent at 7:15am on 9 October 2005, entitled
“RE: FW NSBT Traffic etc”, attaching documents entitled “Bond
Questions”, “Bank Question 8Oct05” and “CKI Question 8Oct05”
[ACM.001.033.6692] with attachments [ACM.001.033.6698],
[ACM.001.033.6699] and [ACM.001.033.6700].
9. Email from Dr Craig Shepherd, for and on behalf of NIEIR, to Tracey
Pershouse, copied to Peter Hicks, sent at 21:42 on 17 August 2005,
entitled "2005 Base year rationale" and attachment "NIEIR Technical Note
2005.doc", [ACM.001.062.8574] and attachment [ACM.001.062.8575].
10. Email from Alan Broadbent to Peter Hicks and copied to others, sent at
18:52 on 4 November 2005, entitled “PIFU Comparisons with RCM Land
Use”, attaching a comparison of the BCC adopted (PIFU) populations and
employment projections against NIEIR’s projections, [ACM.001.027.1325]
with attachments [ACM.001.027.1327] and [ACM.001.027.1328].
11. Letter dated 10 May 2006, from Dr Peter Brain, for and on behalf of NIEIR
to Peter Hicks, [ACM.001.033.7430].
12. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Additional traffic forecasters' work, conclusions and related RCM Project Team actions
Keith Long's Work and Keith Long's Conclusions
46. From no later than in or about late April 2005, Keith Long undertook research,
investigations, and analysis into, gave assistance, advice and feedback on and in relation
to, and produced work product involving or relating to:
(a) understanding the NSBT Project;
Part B. North-South Bypass Tunnel
76
(b) the development and appropriateness of the modelling approach used to produce AECOM Australia's Traffic Forecasts;
(c) key patronage risks of the NSBT Project;
(d) relevant traffic demand for the NSBT Project;
(e) forecast traffic flows on the NSBT;
(f) land use and demographic forecasts and trip ends;
(g) trip generation, trip origins and destinations and trip distribution;
(h) NIEIR's Growth Forecasts;
(i) AECOM Australia's base year model, inputs into the base year model and the calibration and validation of the base year demand model by reference to observed and modelled traffic flows;
(j) stated and revealed preference surveys;
(k) the NSBT toll choice model, the structure of the toll choice model, toll choice modelling and methodology and material assumptions and inputs in, and to, that model and trip assignment;
(l) feeder and alternative routes to the NSBT;
(m) positive and negative travel time savings;
(n) NSBT capacity and broader network capacity assumptions;
(o) network assumptions;
(p) time period modelling and the decision to use AM Peak, rather than all-hour, modelling;
(q) the calculation and use of Expansion Factors and Annualisation Factors;
(r) identifying sensitivity testing to be undertaken; and
(s) the work and reports of PB and HTS,
(together, Keith Long's Work).
Particulars
Keith Long's Work as alleged above is identified in the following documents:
1. Email from David Plowman to Bob Hunter sent at 17:36 on 26 April 2005,
entitled "Interim Draft" with attachments entitled "Draft 3 - Section 3-
Schedule A - Details of the Respondent_Participants.doc" and "Draft 3 -
Section 8 - Schedule D3 - Commercial Issues.doc" and others,
[RCG.001.001.2939] and attachments [RCG.001.001.2946] and
[RCG.001.001.2950].
2. Email from Ben Cooper to Shaun Tabone and others, sent at 12:11 on 7
April 2005, entitled "NSBT - Minutes to 7 April PAX Workshop", with
Part B. North-South Bypass Tunnel
77
attachment entitled "NSBT Traffic Workshop Output.doc",
[ACM.001.019.1213] and attachment [ACM.001.019.1215].
3. Email from Keith Long to Tracey Pershouse sent at 11:27 on 29 April
2005, entitled "NSBT - RP/SP", [ACM.001.004.5327].
4. Minutes of meeting at 5:30pm on 3 May 2005 concerning "Additional
SP/RP Work", attended by Alan Broadbent and others from AECOM
Australia, Peter Hicks and Keith Long, [ACM.002.001.5646].
5. Email from Keith Long to Peter Hicks and Robert Morris, sent at 2.12pm
on 26 June 2005 entitled "RE: preliminary Toll Model Graphs",
[ACM.001.038.6496] and attachment [ACM.001.038.6499].
6. Email from Peter Hicks to David Plowman and Robert Morris, copied to
Keith Long, sent at 17:29 on 21 July 2005, entitled "RE: NSBT Expansion
Factors" with attachment entitled "Expansion Factor Analysis v2.doc",
[RCG.001.001.5621] and attachment [RCG.001.001.5623].
7. Email from Robert Morris to Peter Hicks and another, copied to Keith
Long, sent at 6.23pm on 21 July 2005 entitled "RE: NSBT - Expansion
Factors" with attached spreadsheet "Expansion1.xls", [RCG.001.001.5628]
with attachment [RCG.001.001.5630].
8. Email from Keith Long to Peter Hicks, copied to Robert Morris and David
Plowman sent at 18:01 on 28 July 2005, entitled "Back of the envelope"
NSBT demand" with attachment entitled "Note_28Jul05.doc",
[RCG.001.001.5962] and attachment [RCG.001.001.5963].
9. Email from Keith Long to Peter Hicks, sent at 13:23 on 2 August 2005,
entitled "Interesting comparison!" with attachment entitled
"Note_02Aug05.doc", [RCG.001.001.6477] and attachment
[RCG.001.001.6479].
10. Email from Robert Morris to Peter Hicks, Keith Long and others, sent at
9.41am on 2 August 2005 entitled "RE: Updated: RCM Traffic Meeting",
[RCG.001.001.6164].
11. Email from Keith Long to Peter Hicks, copying in Robert Morris and David
Plowman sent at 10:30 on 8 August 2005, entitled "Expansion factors"
with attachment entitled "Note8Aug05.doc", [RCG.001.001.6846] and
[RCG.001.001.6847].
12. Email from Robert Morris to Peter Hicks and Keith Long sent at 5.10pm
on 8 August 2005 entitled "RE: Expansion Factors" with attachment
entitled "NSBT ATC Count Analysis.xls", [RCG.001.001.6853] and
attachment [RCG.001.001.6854].
13. Email from Keith Long to Robert Morris and Peter Hicks, copied to David
Plowman, sent at 17:59 on 8 August 2005, entitled "RE: Expansion
Factors", [RCG.001.001.6855].
14. Email from Robert Morris to Peter Hicks and another, copied to Keith
Long, sent at 9.43pm on 11 August 2005, entitled "RE: Journey Time
Data" with attachment entitled "JTS Analysis BobMorris RFM.xls",
[ACM.001.034.8161] and attachment [ACM.001.034.8163].
Part B. North-South Bypass Tunnel
78
15. Email from Robert Morris to David Tucker, copied to Peter Hicks, Keith
Long and others, sent at 1.58pm on 15 August 2005, entitled "RE:
Journey Time Data", [ACM.001.034.8154] and attachments
[ACM.001.034.8159] and [ACM.001.034.8160].
16. Email from Keith Long to Tracey Pershouse sent at 14:52 on 22 August
2005, entitled "Re: Updated jtimes" with attachment entitled
"Speedflow.zip", [ACM.001.062.8553] and attachment
[ACM.001.062.8554].
17. Email from Keith Long to Matthew McCarthy and Robert Morris, sent at
13:47 on 24 August 2005, entitled "RE: River City Expansion Factors",
[ACM.001.034.8105].
18. Email from Keith Long to Matthew McCarthy and Robert Morris, sent at
06:34 on 25 August 2005, entitled "RE: River City Expansion Factors",
[ACM.001.034.8109].
19. Email from Keith Long to Peter Hicks and Robert Morris, sent at 9.17am
on 29 August 2005 entitled "RE: Model Results- revised Journey Time
Reporting- 12:30 27/08/05", [ACM.001.062.7591].
20. Email from Keith Long to Matthew McCarthy and copied to Peter Hicks
and others, sent at 16:33 on 31 August 2005, entitled “RE” NSBT –
Expansion Factors”, [ACM.001.034.0827].
21. Email from Keith Long to Matthew McCarthy, Peter Hicks, Ian Sinclair,
Robert Morris, Nick Entsch and Richard Jagger sent at 13:13 on 1
September 2005, entitled "RE: RCM Model Runs 01Sep05",
[ACM.001.062.7499].
22. Email from Keith Long to Matthew McCarthy, Peter Hicks, Robert Morris
and others, sent at 1.46pm on 1 September 2005, entitled “RE: RCM
Model Results 31Aug05", [ACM.001.062.7496] and attachment
[ACM.001.062.7498].
23. Email from Robert Morris to Peter Hicks and David Plowman, copied to
Keith Long, sent at 3.36pm on 4 September 2005, entitled "Expansion
Factors", [RCG.001.001.7793] with attachments [RCG.001.001.7794],
[RCG.001.001.7795] and [RCG.001.001.7796].
24. Email from Keith Long to David Plowman copying in Robert Morris sent at
17:55 on 4 September 2005, entitled "NSBT expansions" with attachment
entitled "Note4Sep05.doc", [RCG.001.001.7797] and attachment
[RCG.001.001.7798].
25. Email from David Plowman to Peter Hicks, copied to Keith Long and
Robert Morris sent at 06:26 on 5 September 2005, entitled "Expansion
Factors Combined Approach" with attachments entitled "Combined
Position on Expansion.doc", "RFM Draft River City Motorway Expansion
Factors.doc", "ExpansionV2Debt.xls", "ExpansionV2Equity.xls",
[RCG.001.001.7811] with attachments [RCG.001.001.7812],
[RCG.001.001.7825], [RCG.001.001.7826] and [RCH.001.001.7827].
26. Email from Robert Morris to Peter Hicks and David Plowman, copied to
Keith Long, sent at 8.43am on 5 September 2005, entitled "RE: Expansion
Part B. North-South Bypass Tunnel
79
Factors Combined Approach", [RCG.001.001.7848] with attachments
[RCG.001.001.7851] and [RCG.001.001.7852].
27. Email from Robert Morris to Peter Hicks, copied to Keith Long and David
Plowman, sent at 16:41 on 5 September 2005, entitled "Annualisation"
with attachments entitled "AnnualisationV1Debt.xls" and
"AnnualisationV1Equity.xls", [RCG.001.001.8017] and attachment
[RCG.001.001.8018] and [RCG.001.001.8019].
28. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 9.30am on 9 September 2005 entitled "RCM AM Peak
Volumes", [ACM.001.034.3412] with attachments [ACM.001.034.3414],
[ACM.001.034.3415] and [ACM.001.034.3416].
29. Email from Peter Hicks to Robert Morris, Keith Long and others, sent at
8.27am on 15 September 2005 entitled "RE: RCM Traffic Model Results
14Aug05", [ACM.001.034.0963].
30. Email from Peter Hicks to Alan Broadbent sent at 12:25 on 27 September
2005, entitled "Fw: RCM Toll Price Sensitivity Results" with an attachment
entitled "20 sept Sensitivity_RFM.xls" and email from Keith Long to Robert
Morris and Peter Hicks entitled "RE: RCM Toll Price Sensitivity Results",
[ACM.001.038.2417] and attachment [ACM.001.038.2421].
31. Email from Keith Long to Alan Broadbent sent at 15:51 on 4 November
2005, entitled "Re: NSBT", [ACM.001.037.8866].
32. Email from Keith Long to Alan Broadbent sent at 14:18 on 6 November
2005, entitled "RCM", [ACM.001.037.8881].
33. Email from Peter Hicks to Alan Broadbent sent at 09:17 on 7 November
2005, entitled "FW: RCM", email exchange between Keith Long and Peter
Hicks sent between 2.07pm on 6 November 2005 and 8:36am on 7
November 2005, [ACM.001.037.8897].
34. Email from Tracey Pershouse to Alan Broadbent sent at 12:36 on 7
November 2005, entitled "RE: RCM", [ACM.001.034.6823].
35. Email from Keith Long to Alan Broadbent and Peter Hicks sent at 14:19
on 10 November 2005, entitled "RE: Demand & Land Use Checks",
[ACM.001.034.4725].
36. Email from Keith Long to Alan Broadbent sent at 17:14 on 11 November
2005, entitled "RE: Expansion factors for non CBD trips",
[ACM.001.037.9006].
37. Email from Peter Hicks to Calum Hutcheson sent at 13:04 on 11
November 2005, entitled "RE: Comments on your written report" attaching
a copy of a report by HTS with comments from Keith Long entitled
"HTS03017R01 (V01).doc", [ACM.001.033.6962] and attachment
[ACM.001.033.6965].
38. Email from Keith Long to Alan Broadbent copying in Peter Hicks sent at
12:10 on 12 November 2005, entitled "RE: Expansion factors for non CBD
trips" with attachment entitled "Review_Exp.doc", [ACM.001.037.9011]
and attachment [ACM.001.037.9014].
Part B. North-South Bypass Tunnel
80
39. Email from Keith Long to Alan Broadbent sent at 10:26 on 14 November
2005, entitled "RE: Expansion factors for non CBD trips" with attachment
entitled "Alan_Exp.xls", [ACM.001.037.9019] and attachment
[ACM.001.037.9024].
40. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
47. Keith Long advised or, otherwise represented, to the RCM Consortium and AECOM
Australia:
(a) that AECOM Australia's NSBT traffic model was "fine";
(b) following his review of a 26 October 2005 draft report prepared by HTS (the Draft
October 2005 HTS Report), that:
(i) he had comments on the Draft October 2005 HTS Report as set out in
annotations which he made to the Draft October 2005 HTS Report and
which included that:
(A) employment growth would underpin significant population growth
in Brisbane in the foreseeable future, and well in excess of NIEIR's
population forecasts; and
(B) a comparison between observed and modelled cross-river
demand showed that the modelled river crossings were within 1%
of the observed counts; and
(ii) subject to those annotations, he agreed with, and endorsed, the contents
of the Draft October 2005 HTS Report; and
(c) that the non-Brisbane CBD cross-river Expansion Factor was 18% higher than
the Expansion Factor for combined Brisbane CBD and Non-CBD trips and that a
combined non-CBD cross-river Expansion Factor uplift of 18% should be applied
to what would otherwise be the "all traffic" Expansion Factor,
(together, Keith Long's Conclusions).
Particulars
Keith Long's Conclusions as alleged above are identified in the following
documents:
1. Email from Keith Long to Alan Broadbent and Peter Hicks sent at 14:19
on 10 November 2005, entitled "RE: Demand & Land Use Checks",
[ACM.001.034.4725].
2. Email from Peter Hicks to Calum Hutcheson sent at 13:04 on 11
November 2005, entitled "RE: Comments on your written report" attaching
a copy of the Draft October 2005 HTS Report with annotations by Keith
Long entitled "HTS03017R01 (V01).doc", [ACM.001.033.6962] and
attachment [ACM.001.033.6965].
3. Email from Keith Long to Alan Broadbent copied to Peter Hicks, sent at
12:10 on 12 November 2005, entitled "RE: Expansion factors for non CBD
Part B. North-South Bypass Tunnel
81
trips" with attachment entitled "Review_Exp.doc", [ACM.001.037.9011]
and attachment [ACM.001.037.9014].
4. Further as to sub-paragraph (b)(ii) above, it is to be inferred from Keith
Long's review of the Draft October 2005 HTS Report and his limited
annotations.
5. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
48. Keith Long's Conclusions did not include any recommendation or advice that, nor did
Keith Long otherwise recommend or advise either the RCM Consortium or AECOM
Australia that, AECOM Australia's Traffic Forecasts were inappropriate or unreasonable
or not based upon reasonable grounds and, or in the alternative, that a warning to that
effect was reasonably necessary or required.
Hicks' Keith Long Actions
49. From no later than in or about April 2005, Peter Hicks:
(a) engaged Keith Long;
(b) agreed the scope of Keith Long's Engagement;
(c) engaged in correspondence, discussions and meetings with Keith Long, AECOM
Australia, the RCM Consortium and other members of the RCM Project Team
concerning Keith Long's Work; and
(d) received reports, advice, feedback and other work product from Keith Long
concerning Keith Long's Conclusions,
(together, Hicks' Keith Long Actions).
Particulars
Hicks' Keith Long Actions as alleged above are illustrated in, and, by, the
following documents:
1. Email from Ben Cooper to Shaun Tabone and others sent at 12:11 on 7
April 2005, entitled "NSBT - Minutes to 7 April PAX Workshop", with
attachment entitled "NSBT Traffic Workshop Output.doc",
[ACM.001.019.1213] and attachment [ACM.001.019.1215].
2. Email from Keith Long to Peter Hicks and Robert Morris, sent at 2.12pm
on 26 June 2005 entitled "RE: preliminary Toll Model Graphs",
[ACM.001.038.6496] and attachment [ACM.001.038.6499].
3. Email from Phillip Brogan to Robert Morris, copied to Peter Hicks and
others, sent at 5.28pm on 8 July 2005 entitled "NSBT T&T - SPRP",
[ACM.007.002.0463].
4. Email from Robert Morris to Phillip Brogan, copied to Peter Hicks and
others sent at 5.34pm on 13 July 2005 entitled "RE: NSBT T&T - SPRP",
[ACM.001.019.2873].
Part B. North-South Bypass Tunnel
82
5. Email from Robert Morris to Peter Hicks and another, copied to Keith
Long, sent at 6.23pm on 21 July 2005 entitled "RE: NSBT - Expansion
Factors" with attached spreadsheet "Expansion1.xls", [RCG.001.001.5628]
with attachment [RCG.001.001.5630].
6. Email from Robert Morris to Peter Hicks, Keith Long and others, sent at
9.41am on 2 August 2005 entitled "RE: Updated: RCM Traffic Meeting",
[RCG.001.001.6164].
7. Email from Robert Morris to Peter Hicks and Keith Long sent at 5.10pm
on 8 August 2005 entitled "RE: Expansion Factors" with attachment
entitled "NSBT ATC Count Analysis.xls", [RCG.001.001.6853] and
attachment [RCG.001.001.6854].
8. Email from Keith Long to Peter Hicks and Robert Morris, sent at 5.59pm
on 8 August 2005 entitled "RE: Expansion factors", [RCG.001.001.6855].
9. Email from Robert Morris to Peter Hicks and another, copied to Keith
Long, sent at 9.43pm on 11 August 2005, entitled "RE: Journey Time
Data" with attachment entitled "JTS Analysis BobMorris RFM.xls",
[ACM.001.034.8161] and attachment [ACM.001.034.8163].
10. Email from Robert Morris to David Tucker, copied to Peter Hicks, Keith
Long and others, sent at 1.58pm on 15 August 2005, entitled "RE:
Journey Time Data", [ACM.001.034.8154] and attachments
[ACM.001.034.8159] and [ACM.001.034.8160].
11. Email from Keith Long to Matthew McCarthy and copied to Peter Hicks,
Robert Morris and others, sent at 13:47 on 24 August 2005, entitled “RE:
River City Expansion Factors”, [ACM.001.034.8105].
12. Email from Keith Long to Matthew McCarthy and Robert Morris, copied to
Peter Hicks and others, sent at 6:34am on 25 August 2005, entitled “RE;
River City Expansion Factors”, [ACM.001.034.8109].
13. Email from Keith Long to Peter Hicks and Robert Morris, sent at 9.17am
on 29 August 2005 entitled "RE: Model Results- revised Journey Time
Reporting- 12:30 27/08/05", [ACM.001.062.7591].
14. Email from Keith Long to Matthew McCarthy and copied to Peter Hicks
and others, sent at 16:33 on 31 August 2005, entitled “RE” NSBT –
Expansion Factors”, [ACM.001.034.0827].
15. Email from Keith Long to Matthew McCarthy, Peter Hicks and others, sent
at 13:13pm on 1 September 2005, entitled “RE: RCM Model Runs
01Sep05”, [ACM.001.062.7499].
16. Email from Keith Long to Matthew McCarthy, Peter Hicks, Robert Morris
and others, sent at 1.46pm on 1 September 2005, entitled “RE: RCM
Model Results 31Aug05", [ACM.001.062.7496] and attachment
[ACM.001.062.7498].
17. Email from Robert Morris to Peter Hicks and David Plowman, copied to
Keith Long, sent at 3.36pm on 4 September 2005, entitled "Expansion
Factors", [RCG.001.001.7793] with attachments [RCG.001.001.7794],
[RCG.001.001.7795] and [RCG.001.001.7796].
Part B. North-South Bypass Tunnel
83
18. Email from David Plowman to Peter Hicks, copied to Keith Long and
Robert Morris, sent at 6.26am on 5 September 2005 entitled "Expansion
Factors Combined Approach", [RCG.001.001.7811] with attachments
[RCG.001.001.7812], [RCG.001.001.7825], [RCG.001.001.7826] and
[RCG.001.001.7827].
19. Email from Robert Morris to Peter Hicks and David Plowman, copied to
Keith Long, sent at 8.43am on 5 September 2005, entitled "RE: Expansion
Factors Combined Approach", [RCG.001.001.7848] with attachments
[RCG.001.001.7851] and [RCG.001.001.7852].
20. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 9.30am on 9 September 2005 entitled "RCM AM Peak
Volumes", [ACM.001.034.3412] with attachments [ACM.001.034.3414],
[ACM.001.034.3415] and [ACM.001.034.3416].
21. Email from Peter Hicks to Robert Morris, Keith Long and others, sent at
8.27am on 15 September 2005 entitled "RE: RCM Traffic Model Results
14Aug05", [ACM.001.034.0963].
22. Email from Keith Long to Peter Hicks and Robert Morris, sent at 12.25pm
on 27 September 2005 entitled "RE: RCM Toll Price Sensitivity Results",
[ACM.001.038.2417] with attachment [ACM.001.038.2421].
23. Email from Keith Long to Peter Hicks, sent at 8:36am on 7 November
2005, entitled “RE: RCM”, [ACM.001.037.8897].
24. Email from Keith Long to Alan Broadbent and Peter Hicks, sent at 12:10
on 12 November 2005, entitled “RE: Expansion factors for non CBD trips”,
[ACM.001.037.9011] with attachment [ACM.001.037.9014].
25. Email from Alan Broadbent to Peter Hicks, sent at 12:44 on 14 November
2005, entitled “Expansion factor note – (Non Cbd Uplift)”,
[ACM.001.033.6811] with attachment [ACM.001.033.6812].
26. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Morris' Keith Long Actions
50. From no later than in or about April 2005, Robert Morris:
(a) engaged in correspondence and discussions with Keith Long, AECOM Australia,
the RCM Consortium and other members of the RCM Project Team concerning
Keith Long's Work; and
(b) received reports, advice, feedback and other work product from Keith Long
concerning Keith Long's Conclusions,
(together, Morris' Keith Long Actions).
Particulars
Morris' Keith Long Actions as alleged above are illustrated in, and, by, the
following documents:
Part B. North-South Bypass Tunnel
84
1. Email from Ben Cooper to Shaun Tabone and others sent at 12:11 on 7
April 2005, entitled "NSBT - Minutes to 7 April PAX Workshop", with
attachment entitled "NSBT Traffic Workshop Output.doc",
[ACM.001.019.1213] and attachment [ACM.001.019.1215].
2. Email from Keith Long to Peter Hicks and Robert Morris, sent at 2.12pm
on 26 June 2005 entitled "RE: preliminary Toll Model Graphs",
[ACM.001.038.6496] and attachment [ACM.001.038.6499].
3. Email from Robert Morris to Alan Broadbent, sent at 07.42 on 27 June
2005 entitled "FW: Preliminary Toll Model Graphs", [ACM.001.038.6496].
4. Email from Phillip Brogan to Robert Morris, copied to Peter Hicks and
others, sent at 5.28pm on 8 July 2005 entitled "NSBT T&T - SPRP",
[ACM.007.002.0463].
5. Email from Alan Broadbent to Keith Long, copied to Robert Morris and
others, sent at 4.59pm on 11 July 2005 entitled "Re: Parameter estimates
from RPSP surveys", [ACM.001.038.3989].
6. Email from Robert Morris to Phillip Brogan, copied to Peter Hicks and
others sent at 5.34pm on 13 July 2005 entitled "RE: NSBT T&T - SPRP",
[ACM.001.019.2873].
7. Email from Robert Morris to Peter Hicks and another, copied to Keith
Long, sent at 6.23pm on 21 July 2005 entitled "RE: NSBT - Expansion
Factors" with attached spreadsheet "Expansion1.xls",
[RCG.001.001.5628] with attachment [RCG.001.001.5630].
8. Email from Robert Morris to Peter Hicks, Keith Long and others, sent at
9.41am on 2 August 2005 entitled "RE: Updated: RCM Traffic Meeting",
[RCG.001.001.6164].
9. Email from Robert Morris to Peter Hicks and Keith Long sent at 5.10pm
on 8 August 2005 entitled "RE: Expansion Factors" with attachment
entitled "NSBT ATC Count Analysis.xls", [RCG.001.001.6853] and
attachment [RCG.001.001.6854].
10. Email from Keith Long to Peter Hicks and Robert Morris, sent at 5.59pm
on 8 August 2005 entitled "RE: Expansion factors", [RCG.001.001.6855].
11. Email from Robert Morris to Peter Hicks and another, copied to Keith
Long, sent at 9.43pm on 11 August 2005, entitled "RE: Journey Time
Data" with attachment entitled "JTS Analysis BobMorris RFM.xls",
[ACM.001.034.8161] and attachment [ACM.001.034.8163].
12. Email from Robert Morris to David Tucker, copied to Peter Hicks, Keith
Long and others, sent at 1.58pm on 15 August 2005, entitled "RE:
Journey Time Data", [ACM.001.034.8154] and attachments
[ACM.001.034.8159] and [ACM.001.034.8160].
13. Email from Keith Long to Matthew McCarthy and copied to Peter Hicks,
Robert Morris and others, sent at 13:47 on 24 August 2005, entitled “RE:
River City Expansion Factors”, [ACM.001.034.8105].
14. Email from Keith Long to Matthew McCarthy and Robert Morris, copied to
Peter Hicks and others, sent at 6:34am on 25 August 2005, entitled “RE;
River City Expansion Factors”, [ACM.001.034.8109].
Part B. North-South Bypass Tunnel
85
15. Email from Keith Long to Peter Hicks and Robert Morris, sent at 9.17am
on 29 August 2005 entitled "RE: Model Results- revised Journey Time
Reporting- 12:30 27/08/05", [ACM.001.062.7591].
16. Email from Keith Long to Matthew McCarthy, Peter Hicks and others, sent
at 13:13pm on 1 September 2005, entitled “RE: RCM Model Runs
01Sep05”, [ACM.001.062.7499].
17. Email from Keith Long to Matthew McCarthy and others, sent 12.13pm on
1 September 2005 entitled "RE: RCM Model Runs 01Sep05",
[ACM.001.034.2975].
18. Email from Keith Long to Matthew McCarthy, Peter Hicks, Robert Morris
and others, sent at 1.46pm on 1 September 2005, entitled “RE: RCM
Model Results 31Aug05", [ACM.001.062.7496] and attachment
[ACM.001.062.7498].
19. Email from Robert Morris to Peter Hicks and David Plowman, copied to
Keith Long, sent at 3.36pm on 4 September 2005, entitled "Expansion
Factors", [RCG.001.001.7793] with attachments [RCG.001.001.7794],
[RCG.001.001.7795] and [RCG.001.001.7796].
20. Email from David Plowman to Peter Hicks, copied to Keith Long and
Robert Morris, sent at 6.26am on 5 September 2005 entitled "Expansion
Factors Combined Approach", [RCG.001.001.7811] with attachments
[RCG.001.001.7812], [RCG.001.001.7825], [RCG.001.001.7826] and
[RCG.001.001.7827].
21. Email from Robert Morris to Peter Hicks and David Plowman, copied to
Keith Long, sent at 8.43am on 5 September 2005, entitled "RE: Expansion
Factors Combined Approach", [RCG.001.001.7848] with attachments
[RCG.001.001.7851] and [RCG.001.001.7852].
22. Email from Matthew McCarthy to Peter Hicks, Robert Morris, Keith Long
and others, sent at 9.30am on 9 September 2005 entitled "RCM AM Peak
Volumes", [ACM.001.034.3412] with attachments [ACM.001.034.3414],
[ACM.001.034.3415] and [ACM.001.034.3416].
23. Email from Peter Hicks to Robert Morris, Keith Long and others, sent at
8.27am on 15 September 2005 entitled "RE: RCM Traffic Model Results
14Aug05", [ACM.001.034.0963].
24. Email from Keith Long to Peter Hicks and Robert Morris, sent at 12.25pm
on 27 September 2005 entitled "RE: RCM Toll Price Sensitivity Results",
[ACM.001.038.2417] with attachment [ACM.001.038.2421].
25. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
PB's Work and PB's Conclusions
51. From no later than in or about July 2005, PB:
(a) undertook research, investigations and analysis into, or relating to:
Part B. North-South Bypass Tunnel
86
(i) the NSBT Project, insofar as PB considered it necessary to ensure that
AECOM Australia's NSBT traffic model addressed all NSBT Project
needs;
(ii) the key risks of the NSBT Project, where PB considered that external
factors may need sensitivity testing to ensure AECOM Australia's NSBT
traffic model structure accommodated the analysis;
(iii) the appropriateness of AECOM Australia's NSBT traffic forecasting
methodology used to produce an NSBT base year model and its
calibration and amenability to being used to produce NSBT patronage
forecasts;
(iv) AECOM Australia's NSBT modelling philosophy and technique and their
appropriateness;
(v) any errors in assumptions or implementation by AECOM Australia;
(vi) model coverage (both spatial and temporal), times of day modelled and
weekly and seasonal Expansion Factors and Annualisation Factors and
the calculation of variable toll diversion rates;
(vii) the overall form of AECOM Australia's NSBT traffic model;
(viii) model scope and coverage, networks and zoning, model time periods and
model base year;
(ix) the suitability of AECOM Australia's NSBT traffic model for producing toll
road forecasts;
(x) the model's network overview (its source and reliability, project-specific
changes, its compatibility with original model estimation, the adequacy of
the model's ability to reflect alternative and feeder routes, assignment
techniques and convergence);
(xi) data sources;
(xii) network inventory;
(xiii) network link parameters (road hierarchy, traffic impedance, posted speed
and free flow speed and lane numbers and capacity);
(xiv) traffic counts;
(xv) journey times;
(xvi) demand data;
(xvii) further to sub-paragraph (xvi) above, NIEIR's Growth Forecasts;
(xviii) the "goodness" of data used;
(xix) the adequacy of calibration/validation data;
(xx) further to sub-paragraph (xix) above, the availability of independent data
for model verification;
(xxi) the procedures used to adjust model parameters;
Part B. North-South Bypass Tunnel
87
(xxii) any material adjustments made to model parameters used by AECOM
Australia to produce AECOM Australia's Earlier EIS Forecasts;
(xxiii) any material changes in modelling technique compared to the modelling
techniques used to produce AECOM Australia's Earlier EIS Forecasts;
(xxiv) calibration criteria;
(xxv) actual calibration against calibration criteria (screenline matching,
individual route volumes, travel times, trip table adjustments and speed
flow curves and any other techniques used to calibrate the model and how
those adjustments would be accounted for in forecasts);
(xxvi) toll modelling in AECOM Australia's NSBT base year model against both
the Gateway and Logan Motorways to measure the extent to which the
combination of toll modelling technique and VTTS reflected current tolling
behaviour;
(xxvii) the NSBT demand model;
(xxviii) trip tables and their source, number of user classes and adjustments
required to reach calibration;
(xxix) the NSBT assignment model;
(xxx) the proposed approach to forecasting, both in terms of future demand and
in applying the tolling model;
(xxxi) whether AECOM Australia's NSBT base year model could be used in
forecasting mode; and
(xxxii) the assumed 2010 network;
(b) produced and provided to the RCM Consortium and AECOM Australia, advice,
feedback, reports and other work product into or relating to the matters alleged in
sub-paragraph (a) above or, in the alternative, to such of those matters as PB, in
the exercise of its professional judgement, considered necessary;
(c) further to sub-paragraph (b) above, prepared and distributed a final report on the
outcomes of its work to the RCM Consortium and AECOM Australia for
consideration by the RCM Consortium and AECOM Australia (PB's Report); and
(d) gave presentations on the outcome of its work to the RCM Consortium, AECOM
Australia, RCM Financiers and Investors in connection with the NSBT Project,
(together, PB's Work).
Particulars
PB's Work as alleged above is identified in the following documents:
1. Appendix B. to the May 2006 Traffic Report: "Summary of Parsons
Brinckerhoff's roles in reviewing Maunsell's 2005 model and its calibration
and validation", [RCG.001.008.6302] at RCG.001.008.6488.
2. Appendix G. to the May 2006 Traffic Report: "Parsons Brinckerhoff peer
review report. River City Motorway Traffic Forecasts Base Model Review",
[RCG.001.008.6302] at RCG.001.008.6568.
Part B. North-South Bypass Tunnel
88
3. Presentation by Gillian Akers, for and on behalf of PB, on 5 October 2005
entitled "Traffic Forecasts - Base Model Review, A Presentation to Project
Financiers, Sponsors Advisor - Parsons Brinckerhoff",
[WLB.001.008.0134].
4. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
52. PB's ultimate conclusions and opinions (PB's Conclusions):
(a) expressed to the RCM Consortium; and
(b) expressed to AECOM Australia or in respect of AECOM Australia's NSBT Work,
were that:
(c) AECOM Australia's NSBT 2005 base year traffic model had appropriate coverage
and was sufficient to model future traffic volumes for the NSBT Project;
(d) the modelled period was AM Peak (0700-0900) and it was adequate to reflect
travel throughout the network;
(e) while ideally the modelling period would extend to an all day traffic model, the AM
Peak was the most robust modelling period in Brisbane, as existing empirical data
was more readily available for this period and sound data for validation of the
base year AM Peak trip table was also available in the form of the Australian
Bureau of Statistics' (ABS) journey to work data;
(f) AM Peak was the most consistent period for estimating network travel in
Brisbane;
(g) while it needed to be approached with caution, modelling AM Peak only was
adequate for the purposes of traffic forecasting for the NSBT Project;
(h) there had been an independent check of AECOM Australia's NSBT 2005 base
year traffic model's trip generation rates;
(i) AECOM Australia's NSBT 2005 base year traffic model's road hierarchy and road
type were generally, and sufficiently, representative;
(j) AECOM Australia's NSBT 2005 base year traffic model's posted speeds along
major roads were representative;
(k) the number of lanes across the review area appeared representative;
(l) lane capacity assumptions were generally and sufficiently representative;
(m) "j-factors" (a measure of sensitivity to increasing congestion) were generally and
sufficiently representative on the major links;
(n) AECOM Australia's NSBT 2005 base year traffic model was suitable as a base
year model;
(o) AECOM Australia's NSBT 2005 base year traffic base year model compared
favourably with traffic count data with only minor exceptions;
Part B. North-South Bypass Tunnel
89
(p) modelled journey times were generally very good when compared with observed
times;
(q) a potential underestimation of longer trips would produce conservatively lower toll
road forecasts;
(r) AECOM Australia had exercised sufficient caution in determining the Expansion
Factors to be used to expand modelled AM Peak traffic flows to forecast traffic for
the entire day; and
(s) those Expansion Factors were appropriate for the circumstances.
Particulars
1. As to sub-paragraphs (c) - (e) and (h) - (q) above: PB's River City
Motorway Traffic Forecasts Base Model Review dated November 2005
which comprised Appendix G to the May 2006 Traffic Report
[RCG.001.008.6302] at RCG.001.008.6568.
2. As to sub-paragraphs (f) and (g) above: Presentation by Gillian Akers, for
and on behalf of PB, on 5 October 2005 entitled "Traffic Forecasts - Base
Model Review, A Presentation to Project Financiers, Sponsors Advisor -
Parsons Brinckerhoff", [WLB.001.008.0134].
3. As to sub-paragraphs (r) and (s) above: They are to be inferred from oral
advice provided by Peter Hicks to Alan Broadbent, for and on behalf of
AECOM Australia, in or about late October 2005 and, in any event, by no
later than 28 October 2005, to the effect that Gillian Akers, who led the PB
team undertaking PB's Work, had informed Peter Hicks that she
"endorsed" the Expansion Factors being used by AECOM Australia.
4. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
53. Neither PB's Conclusions nor PB's Report included any recommendation or advice that,
nor did PB otherwise recommend or advise either the RCM Consortium or AECOM
Australia that, AECOM Australia's NSBT 2005 base year traffic model or AECOM
Australia's Traffic Forecasts were inappropriate or unreasonable or not based upon
reasonable grounds and, or in the alternative, that a warning to that effect was
reasonably necessary or required.
Hicks' PB Actions
54. From no later than July 2005, Peter Hicks:
(a) engaged PB;
(b) agreed the scope of PB's Engagement;
(c) provided instructions and gave feedback to PB;
(d) engaged in correspondence, discussions and meetings with PB, AECOM
Australia, the RCM Consortium and other members of the RCM Project Team
concerning PB's Work; and
Part B. North-South Bypass Tunnel
90
(e) received PB's Report and other advice, feedback and other work product from PB
concerning PB's Conclusions.
(together, Hicks' PB Actions).
Particulars
Hicks' PB Actions as alleged above are illustrated in, and by, the following
documents:
1. Email from Alan Broadbent to Philip Brogan and copied to others, sent at
12:30pm on 24 July 2005, entitled “Model Audit Meeting with PB”, with
attachment entitled “Traffic Modelling Audit by PB.doc”,
[ACM.001.027.1016] with attachment [ACM.001.027.1017].
2. Email from Alan Broadbent to Peter Hicks and Robert Morris sent at
5.36pm on 27 July 2005 entitled "Calibration Audit- PB Requirements"
with attachment entitled "Traffic Modelling Audit by PB.doc",
[ACM.001.062.8886] and attachment [ACM.001.062.8887].
3. Email from Matthew McCarthy to Tracey Pershouse and Deborah
Hutchinson sent at 15:17 on 28 July 2005, entitled “Notes from sponsors
meeting 28/07/05”, [ACM.001.062.8850].
4. Email from David Trainer, PB, to Peter Hicks, copied to others, sent at
2:10pm on 26 September 2005, entitled “NSBT Model Review”, attaching
a document entitled “Riverlink Expressway Traffic Forecasts Base Model
Review”, [ACM.001.038.1273] with attachments [ACM.001.038.1275] and
[ACM.001.038.1315].
5. Email from Alan Broadbent to Peter Hicks, copied to Tracey Pershouse,
sent at 21:14 on 28 September 2005, entitled “Response to PB Report”
with attachment entitled “Response to PB Base Model Review”,
[ACM.001.062.7329] with attachment [ACM.001.062.7331].
6. Email from Peter Hicks to Gillian Akers, PB, sent at 7:34am on 29
September 2005, entitled “NSBT Model Review”, attaching a marked-up
version of the NSBT Model Review, with comments from Peter Hicks,
[ACM.001.038.1228] with attachments [ACM.001.038.1230] and
[ACM.001.038.1272].
7. Email from Dr Craig Shepherd, NIEIR, to Peter Hicks and others, sent at
8.54am on 29 September 2005 entitled "Re: FW: NSBT Model Review",
with attachment entitled "PB comments CS NIEIR.doc",
[ACM.001.038.1217] with attachment [ACM.001.038.1220].
8. Email from Gisela La Point to Peter Hicks, sent at 11:44am on 30
September 2005, entitled “Traffic Forecast”, attaching a document entitled
“Response to PB Base Model Review”, [RCG.001.001.8557] with
attachments [RCG.001.001.8559] and [RCG.001.001.8560].
9. Email from Peter Hicks to Alan Broadbent, copied to others, sent at
12.28pm on 30 September 2005 entitled "FW:Traffic Forecasts", attaching
a document entitled “Response to PB 280905, incl PB comments",
[RCG.001.001.8557] with attachments [RCG.001.001.8559] and
[RCG.001.001.8560].
Part B. North-South Bypass Tunnel
91
10. Email from Peter Hicks to Gillian Akers, PB, copied to Alan Broadbent and
others, sent at 15:52 on 4 October 2005, entitled “Draft presentation”
attaching a document entitled “River City Expressway Traffic Forecasts
Base Model Review, September 2005” and also enclosing a copy of
attachment entitled "PB comments CS NIEIR.doc" received from NIEIR,
[ACM.001.038.1354] with attachments [ACM.001.038.1356],
[ACM.001.038.1357] and [ACM.001.038.1358].
11. Presentation by PB dated 5 October 2005 entitled "Traffic Forecasts-
Base Model Review A Presentation to Project Financiers Sponsor Clients
Advisor- Parsons Brinckerhoff", [WLB.001.008.0134].
12. Email from Alan Broadbent to Gillian Akers, copied to Peter Hicks and
others, sent at 16:50 on 5 December 2005, entitled “2010 Network
Review”, [ACM.001.033.7596] and attachment [ACM.001.033.7598].
13. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Morris' PB Actions
55. From no later than July 2005, Robert Morris:
(a) engaged in correspondence with AECOM Australia, the RCM Consortium and
other members of the RCM Project Team concerning PB's Work; and
(b) received PB's Report and other advice, feedback and other work product from PB
concerning PB's Conclusions,
(together, Morris' PB Actions).
Particulars
Morris’ PB Actions as alleged above are illustrated in, and by, the following
documents:
1. Email from Philip Brogan to Sandy Thomas and copied to others,
forwarding correspondence from Alan Broadbent to Peter Hicks and
Robert Morris, sent at 11:15am on 20 July 2005, entitled “NSBT T&T”,
[ACM.001.019.2048].
2. Email from Alan Broadbent to Peter Hicks and Robert Morris sent at
5.36pm on 27 July 2005 entitled "Calibration Audit - PB Requirements"
with attachment entitled "Traffic Modelling Audit by PB.doc",
[ACM.001.062.8886] and attachment [ACM.001.062.8887].
3. Email from Peter Hicks to Adam Chittendon, Robert Morris and others,
sent at 10:44am on 2 August 2005, entitled “Fwd: Updated: RCM Traffic
Meeting” with attachment entitled “NSBT Base Year Traffic Model
Calibration Criteria”, [ACM.001.032.5445] with attachment
[ACM.001.032.5447].
4. Email from Robert Morris to David Tucker and copied to others, sent at
2:08pm on 15 August 2005, entitled “RE: Journey Time Data”,
[ACM.001.034.8154].
Part B. North-South Bypass Tunnel
92
5. Email from Richard Jagger to Alan Broadbent, Robert Morris and others,
sent at 6:55pm on 10 May 2006, entitled “Traffic DDSC – latest key issues
report” with attachment entitled “100506 Traffic Key Issues List”,
[ACM.001.033.7423] with attachment [ACM.001.033.7424].
6. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
HTS' Work and HTS' Conclusions
56. From no later than in or about July 2005 or, in the alternative, September or October
2005, HTS:
(a) undertook research, investigations and analysis into, or relating to:
(i) the strategic benefits and context of the NSBT Project;
(ii) the 31 October 2005 draft of what became the December 2005 Traffic
Reports and the forecasts contained therein;
(iii) updated information and updated forecasts prepared by AECOM Australia
between the 31 October 2005 draft of what became the December 2005
Traffic Reports and on or about 5 April 2006;
(iv) the Two Traffic Forecast Scenarios;
(v) which of the Two Traffic Forecast Scenarios was the appropriate basis
upon which to assess the equity case for the NSBT Project;
(vi) NIEIR's Growth Forecasts;
(vii) further to sub-paragraph (vi) above, NIEIR's population, employment and
growth forecasts, the impact of a possible lack of growth on AECOM
Australia's Traffic Forecasts and associated risks;
(viii) demand for the NSBT;
(ix) further to sub-paragraph (viii) above, the causes and drivers of current
and future demand both generally and cross-river, and the impact on
AECOM Australia's Traffic Forecasts if growth forecasts were not realised;
(x) trip generation;
(xi) trip origins and destinations and trip distribution patterns;
(xii) AECOM Australia's NSBT base year model, inputs into that base year
model, observed and modelled traffic flows and trip lengths and the
calibration and validation of that base year model by reference thereto;
(xiii) NSBT trip assignment, the toll choice modelling software, the structure of
the toll choice model, toll choice methodology and the modelling
approach, material assumptions and inputs to and in that model, time and
cost and VTTS and any risks associated with trip assignment;
(xiv) travel time savings, the impact of tolling changes, and capture by the
NSBT;
Part B. North-South Bypass Tunnel
93
(xv) NSBT capacity;
(xvi) NSBT Project configuration, the impact of configuration on the market for
the NSBT and the impact of adding west facing connections between the
NSBT and the Inner City Bypass;
(xvii) existing and future network assumptions;
(xviii) further to sub-paragraph (xvii) above, existing and future network
assumptions in relation to competing routes;
(xix) Expansion Factors and Annualisation Factors and their effect on revenue
estimates, how they compared to such factors on other Australian toll
roads, risks associated with Expansion Factors and Annualisation Factors
and sensitivity testing on Expansion Factors and Annualisation Factors;
(xx) the key factors affecting, and the risks associated with, AECOM
Australia's Traffic Forecasts;
(xxi) sensitivity testing;
(xxii) further to sub-paragraph (xxi) above, sensitivity testing required to
produce a robust estimate from which an equity analysis can be
completed;
(xxiii) the "soundness" of AECOM Australia's NSBT traffic forecasting
methodology;
(xxiv) AECOM Australia's Traffic Forecasts, taking into account all relevant
information;
(xxv) AECOM Australia's Traffic Forecasts as compared with traffic flows on
other Australia toll roads;
(xxvi) the complexities of traffic forecasting, possible discrepancies, issues or
errors in AECOM Australia's Traffic Forecasts;
(xxvii) PB's Work;
(xxviii) the differences between AECOM Australia's Traffic Forecasts and
AECOM Australia's Earlier EIS Forecasts;
(b) produced, and provided to the RCM Consortium, advice, feedback, reports and
other work product into or relating to the matters alleged in sub-paragraph (a)
above (HTS' Report); and
(c) gave presentations to the RCM Consortium as to the outcomes of its work,
(together, HTS' Work).
Particulars
1. Email from Adam Chittendon to Sarah Chate and David Plowman sent at
14:50 on 15 July 2005, entitled "Re: Roadshow Agenda and
Accompanying Notes" with attachments entitled "0507_14 Roadshow
Agenda_AC mk-up.doc" and "0507_13 Roadshow Agenda NOTE_AC mk-
up.doc", [RCG.001.001.5244] and attachments [RCG.001.001.5247] and
[RCG.001.001.5251].
Part B. North-South Bypass Tunnel
94
2. Email from Alen Lau to Calum Hutcheson and copied to Peter Hicks and
Alan Broadbent sent at 15:21 on 10 October 2005, entitled "re: RiverCity
Motorway Base Year Model Report" with attachment entitled "Base Year
Model_AL101005.pdf", [ACM.001.033.6881] and attachment
[ACM.001.033.6882].
3. Email from Calum Hutcheson to Richard Jagger sent at 02:09PM on 10
October 2005, entitled "Re:", email from Richard Jagger to Peter Hicks
sent at 2:11pm on 12 October 2005, entitled "Fw: Re:" and email from
Peter Hicks to Alan Broadbent at 13:53 on 12 October 2005 entitled "FW:
Re:" with attachment entitled "HTS03017M01 - NSBT Questions.pdf",
[ACM.001.033.6875] and attachment [ACM.001.033.6878].
4. Email from Alan Broadbent to Calum Hutcheson and copied to Peter
Hicks sent at 17:54 on 12 October 2005, entitled "River City Motorway
Calibration Spreadsheet" with attachment entitled
"Calibration_CHutch_12Oct.zip", [ACM.001.033.6873] and attachment
[ACM.001.033.6874].
5. Email from Calum Hutcheson to Richard Jagger and copied to Peter Hicks
sent at 7:52am on 12 October 2005, entitled "HTS03017 - NSBT - Late
Question", [ACM.001.033.6865].
6. Email from Peter Hicks to Amanda Copping and others, sent at 13:30 on
18 October 2005, entitled “Meeting with Calum Hutcheson”, with
attachment entitled "CHutch Question 18Oct05.doc", [ACM.001.037.9035]
with attachment [ACM.001.037.9037].
7. Email from Peter Hicks to Richard Jagger sent at 10:31 on 20 October
2005, entitled "Final to Calum" with attachments including "CHutch info
19Oct1.zip" and "CHutch Question 20Oct05.doc", [ACM.001.033.6841]
and attachments [ACM.001.033.6843], [ACM.001.033.6844],
[ACM.001.033.6845], [ACM.001.033.6846], [ACM.001.033.6847] and
[ACM.001.033.6848].
8. Email from Peter Hicks to Calum Hutcheson copied to Richard Jagger and
Nick Entsch sent at 4:42pm on 23 October 2005, entitled "Additional
Information", email from Calum Hutcheson to Peter Hicks copied to
Richard Jagger and Nick Entsch sent at 10:19am on 24 October 2005,
entitled "RE: Additional Information" and email from Peter Hicks to Alan
Broadbent sent at 11:02 on 24 October 2005, entitled "FW: Additional
Information" with attachment entitled "HTS03017x01 - AADT
Comparisons.xls", [ACM.001.038.1446] and attachment
[ACM.001.038.1448].
9. Email from Peter Hicks to Alan Broadbent and Nicholas Entsch, sent at
11:23am on 2 November 2005, entitled “HTS03017 – NSBT” with
attachment entitled "Calum brief 01 11 05.doc", [ACM.001.033.6939] with
attachment [ACM.001.033.6942].
10. Email from Peter Hicks to Calum Hutcheson sent at 08:11 on 11
November 2005, entitled "Comments on your written report" with
attachments entitled "Car Ownership Levels.xls", "Car Ownership
Levels.xls", "HCV base year analysis.xls" and "051109_RCM_Traffic
Upside.doc", [ACM.001.033.6967] with attachments [ACM.001.033.6969],
[ACM.001.033.6972], [ACM.001.033.6971] and [ACM.001.033.6970].
Part B. North-South Bypass Tunnel
95
11. Email from Calum Hutcheson to Peter Hicks, Richard Jagger, Nicholas
Entsch and Alan Broadbent sent at 10:10am on 15 November 2005
entitled "RE: HTS03017 - NSBT" with attachments entitled
"HTS03017R01 (V03).pdf" and "HTS03017R01 (V03).doc",
[ACM.001.033.6976] and attachments [ACM.001.033.6979] and
[ACM.001.033.6980].
12. Email from Calum Hutcheson to Richard Jagger sent at 10:40am on 21
November 2005, entitled "HTS03017 - NSBT" and email from Richard
Jagger to Alan Broadbent at 13:04 on 22 November 2005 with attachment
entitled "HTS03017R01 (V03) - Addendum 1.pdf", [ACM.001.033.6987]
and attachment [ACM.001.033.6989].
13. Email from Richard Jagger to Peter Hicks, sent at 3:48pm on 20 March
2006, entitled “Fw: HTS03017 – NSBT”, attaching a document entitled
“Brisbane North South Bypass Tunnel, Review of Patronage Assessment
Addendum 2 – Alternative Tolling Strategy (1.5 times for LCV and 2.65
times for HCV) 17 March 2006, Hutcheson Transport Solutions Pty Ltd”,
[ACM.001.033.7123] with attachments [ACM.001.033.7126] and
[ACM.001.033.7127].
14. Email from Richard Jagger to Peter Hicks and others, copied to Amanda
Copping, sent at 12:22pm on 5 April 2006, entitled, “Calum’s report”
attaching a document entitled, “Brisbane North South Bypass Tunnel,
Review of Patronage Assessment, Addendum 3, 5 April 2006, Hutcheson
Transport Solutions Pty Ltd”, [ACM.001.033.7177] with attachment
[ACM.001.033.7179].
15. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
57. HTS' ultimate conclusions and opinions expressed to the RCM Consortium (HTS'
Conclusions) were that:
(a) the NSBT would provide a through traffic route bypassing congestion points
within the Brisbane CBD and on feeder routes to nearby river crossings;
(b) relevant Brisbane river crossings were running at capacity in peak periods at that
time;
(c) AECOM Australia's NSBT traffic forecasting methodology was sound and used
the latest techniques and software applied by the patronage forecasting industry
for toll road assessments;
(d) AECOM Australia's NSBT traffic model was enhanced compared to the BSTM
which AECOM Australia had used to prepare AECOM Australia's Earlier EIS
Forecasts;
(e) further to sub-paragraph (d) above, AECOM Australia's NSBT traffic model was
enhanced compared to the BSTM which AECOM Australia had used to prepare
AECOM Australia's Earlier EIS Forecasts because it reflected:
Part B. North-South Bypass Tunnel
96
(i) changes in population and employment between 2001 and 2005 that were
not included in the BSTM at the time of AECOM Australia's Earlier EIS
Forecasts;
(ii) travel trends (origin - destination patterns) revealed by the South East
Queensland Household Travel Survey completed in 2003 which were not
reflected in the BSTM at the time of AECOM Australia's Earlier EIS
Forecasts;
(iii) refinement of the model calibration using more detailed and up to date
traffic flow and travel time data;
(iv) refinement of the modelling process to incorporate the effects of stop/start
travel versus continuous travel; and
(v) stop/start travel versus continuous travel conditions and more detailed
surveys of attitudes to tolls in its toll diversion modelling;
(f) the more significant risks associated with NSBT traffic forecasting comprised
assumptions, data, inputs, and outputs related to:
(i) NIEIR's Growth Forecasts;
(ii) origin - destination patterns;
(iii) VTTS;
(iv) Expansion Factors and Annualisation Factors;
(v) vehicle mix; and
(vi) competing road upgrades;
(g) other assumptions, data, inputs, and outputs of, or in, or otherwise relating to,
AECOM Australia's NSBT traffic forecasts did not give rise to significant risk;
(h) AECOM Australia's traffic forecasting methodology to assign traffic to the road
system used a combined equilibrium/logit route choice assignment and that this
was an accepted standard for detailed modelling of toll roads;
(i) AECOM Australia's Earlier EIS Forecasts applied earlier BSTM forecasts which
were now substantially out of date and did not now adequately reflect recent
growth trends in the Brisbane region;
(j) NIEIR's Growth Forecasts constituted a substantial update to earlier BSTM
forecasts used to "drive" AECOM Australia's Earlier EIS Forecasts;
(k) NIEIR's Growth Forecasts were the key driver of expected and forecast future
demand growth;
(l) NIEIR's Growth Forecasts were the key driver of expected and forecast demand
growth across the Brisbane River;
(m) NIEIR's population and employment forecasts were supported by historical trends
and a detailed analysis of future potential growth;
(n) the differences between earlier BSTM forecasts of population and population
growth, and NIEIR's equivalent forecasts, reflected recent trends in population
and were reasonable and appropriate to adopt;
Part B. North-South Bypass Tunnel
97
(o) the differences between earlier BSTM forecasts of employment and employment
growth and NIEIR's equivalent employment forecasts were more significant than
the differences between earlier BSTM forecasts of population and population
growth, and NIEIR's equivalent forecasts, were primarily due to increases in
workforce participation levels and were reasonable and appropriate to adopt;
(p) the differences between earlier BSTM forecasts of employment and employment
growth and NIEIR's equivalent employment forecasts would translate to a higher
level of employment and, hence, travel demands;
(q) significantly based upon NIEIR's Growth Forecasts, there was forecast to be a
97% increase in potential NSBT traffic between 2005 and 2010;
(r) the rate of growth in employment forecast by NIEIR was also a driver for
population growth beyond that forecast by NIEIR and that this would likely result
in even greater travel demands in the region and across the Brisbane River but
there would be significant negative impacts on NSBT patronage if NIEIR's Growth
Forecasts were not achieved;
(s) the reported Bank Case forecasts could be reasonably used as an indicator of
potential impacts arising from potential variations in NIEIR's population and
employment forecasts and, in all of the circumstances, the Bank Case forecasts
represented a sensitivity test for the NSBT Project;
(t) VTTS varied between projects and depended on various factors such as trip
purposes, time of day, road user income and vehicle types, maturity of the market
and the level of toll;
(u) the VTTS estimates and other parameter values determined by AECOM Australia
compared favourably with estimates produced for other toll road projects and
were a reasonable basis from which to produce an equity assessment of the
NSBT;
(v) there was nevertheless the potential for the modelling of VTTS to overestimate, or
underestimate, the potential catchment for the NSBT Project, that sensitivity
testing was required and had been performed and that sensitivity testing
ultimately indicated that, if VTTS were overestimated by 15 per cent, there would
be a negative 6.8 per cent effect on patronage and that this was HTS' worst case
assessment of the potential impacts of VTTS overestimation;
(w) Expansion Factors and Annualisation Factors were a critical part of the patronage
assessment and variation would have a substantial effect on revenue estimates;
(x) the Base Case Expansion Factors and Annualisation Factors were within the
range experienced for other toll roads and were not unreasonable;
(y) the lower Expansion Factors and Annualisation Factors used to derive the Bank
Case forecasts ought be considered in, or as, sensitivity testing of the Base Case
Expansion Factors and Annualisation Factors;
(z) the growth factors assumed for the Expansion Factors and Annualisation Factors
for both the Bank Case forecasts and the Base Case forecasts were conservative
and reasonable for assessment of any equity bid;
(aa) the addition of a west facing connection between the NSBT and the Inner City
Bypass would increase the potential market for the NSBT;
Part B. North-South Bypass Tunnel
98
(bb) the effects and impacts of key projects and other future road network
improvements were appropriately incorporated and no adjustments were required
for an equity assessment beyond what had already been incorporated in AECOM
Australia's NSBT modelling;
(cc) the AECOM Australia's NSBT traffic model conservatively overestimated the
effects of toll changes;
(dd) AECOM Australia's Traffic Forecasts from 2026 to 2051 were based on
conservative growth assumptions and were reasonable for assessment of an
equity bid; and
(ee) in all of the circumstances, AECOM Australia's Base Case forecasts were an
appropriate basis by which to assess the equity position and adjustments to those
forecasts were not required for an equity assessment.
Particulars
HTS' Conclusions are identified in the following documents:
1. Email from Calum Hutcheson to Peter Hicks, Richard Jagger, Nicholas
Entsch and Alan Broadbent sent at 10:10am on 15 November 2005,
entitled "RE: HTS03017 - NSBT" with attachments entitled
"HTS03017R01 (V03).pdf" and "HTS03017R01 (V03).doc",
[ACM.001.033.6976] and attachments [ACM.001.033.6979] and
[ACM.001.033.6980].
2. Email from Calum Hutcheson to Richard Jagger sent at 10:40am on 21
November 2005, entitled "HTS03017 - NSBT" and email from Richard
Jagger to Alan Broadbent at 13:04 on 22 November 2005 with attachment
entitled "HTS03017R01 (V03) - Addendum 1.pdf", [ACM.001.033.6987]
and attachment [ACM.001.033.6989].
3. Email from Richard Jagger to Peter Hicks, sent at 3:48pm on 20 March
2006, entitled “Fw: HTS03017 – NSBT”, attaching a document entitled,
“Brisbane North South Bypass Tunnel, Review of Patronage Assessment
Addendum 2 – Alternative Tolling Strategy (1.5 times for LCV and 2.65
times for HCV) 17 March 2006, Hutcheson Transport Solutions Pty Ltd”,
[ACM.001.033.7123] with attachments [ACM.001.033.7126] and
[ACM.001.033.7127].
4. Email from Richard Jagger to Peter Hicks, copied to others, sent at
12:22pm on 5 April 2006, entitled, “Calum’s report”, attaching a document
entitled “Brisbane North South Bypass Tunnel, Review of Patronage
Assessment, Addendum 3, 5 April 2006, Hutcheson Transport Solutions
Pty Ltd”, [ACM.001.033.7177] with attachment [ACM.001.033.7179].
5. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
58. Neither HTS' Conclusions nor HTS' Report included any recommendation or advice that,
nor did HTS otherwise recommend or advise either the RCM Consortium or AECOM
Australia that, any of AECOM Australia's Traffic Forecasts were inappropriate or
Part B. North-South Bypass Tunnel
99
unreasonable or not based upon reasonable grounds and, or in the alternative, that a
warning to that effect was reasonably necessary or required.
Hicks' HTS Actions
59. From in or about July 2005 or, in the alternative, September or October 2005, Peter
Hicks:
(a) engaged HTS;
(b) agreed the scope of HTS' Engagement;
(c) provided instructions and information to HTS;
(d) engaged in correspondence, discussions and meetings with HTS, AECOM
Australia, the RCM Consortium and other members of the RCM Project Team
concerning HTS and HTS' Work; and
(e) received reports, advice, feedback and other work product from HTS which
stated, contained and, or in the alternative, reflected HTS' Conclusions,
(together, Hicks' HTS Actions).
Particulars
Hicks’ HTS Actions as alleged above are illustrated in, and by, the following
documents:
1. Email from Alen Lau to Calum Hutcheson, copied to Peter Hicks and Alan
Broadbent, sent at 15:21 on 10 October 2005, entitled “re: RiverCity
Motorway Base Year Model report”, attaching a document entitled
“RiverCity Motorway Base year Model Validation report RiverCity
Motorway July 2005”, [ACM.001.033.6881] with attachment
[ACM.001.033.6882].
2. Email from Richard Jagger, ABN AMRO, to Peter Hicks, sent at 2:11pm
on 12 October 2005, attaching a memorandum drafted by Calum
Hutcheson, of HTS, entitled “HTS03017M01 - NSBT Questions.pdf",
[ACM.001.027.1302] with attachment [ACM.001.027.1306].
3. Email from Alan Broadbent to Peter Hicks, copied to others, sent at 18:37
on 13 October 2005, entitled “Responses to Callum’s Questions” [sic].,
[ACM.001.027.1363]. Also see attachments [ACM.001.027.1364],
[ACM.001.027.1365], [ACM.001.027.1366], [ACM.001.027.1367], and
[ACM.001.027.1368].
4. Email from Peter Hicks to Amanda Copping, and others, sent at 13:30 on
18 October 2005, entitled “Meeting with Calum Hutcheson”, attaching
notes from a meeting, [ACM.001.037.9035] with attachment
[ACM.001.037.9037].
5. Email from Peter Hicks to Calum Hutcheson, sent at 15:41 on 23 October
2005, entitled “Additional Information”, attaching average annual daily
traffic information from other toll roads and an Excel spread sheet
containing sector to sector analysis, [ACM.001.111.6095] with
attachments [ACM.001.111.6097] and [ACM.001.111.6098].
6. Email from Peter Hicks to Alan Broadbent and Nicholas Entsch, sent at
11:23am on 2 November 2005, entitled “HTS03017 – NSBT” attaching a
Part B. North-South Bypass Tunnel
100
brief to Calum Hutcheson, [ACM.001.033.6939] with attachment
[ACM.001.033.6942].
7. Email from Alan Broadbent to Peter Hicks, sent at 4:59pm on 3 November
2005, entitled “Callum Model Runs” [sic]., [ACM.001.033.6947].
8. Email from Peter Hicks to Calum Hutcheson, copied to others, sent at
8:11 on 11 November 2005, entitled “Comments on your written report”,
attaching various portions of Calum Hutcheson’s report with comments in
mark-up, [ACM.001.033.6967] with attachments [ACM.001.033.6969],
[ACM.001.033.6970], [ACM.001.033.6971] and [ACM.001.033.6972].
9. Email from Peter Hicks to Calum Hutcheson, copied to others, sent at
13:04 on 11 November 2005, entitled “RE: Comments on your written
report”, [ACM.001.033.6962] with attachment [ACM.001.033.6965].
10. Email from Calum Hutcheson to Peter Hicks and others, sent at 10:10am
on 15 November 2005, entitled “RE: HTS03017 – NSBT”, attaching
version 3 of a document entitled, “Brisbane North South Bypass Tunnel,
Review of Patronage Assessment 15 November 2005, Hutcheson
Transport Solutions Pty Ltd”, [ACM.001.033.6976] with attachments
[ACM.001.033.6979] and [ACM.001.033.6980].
11. Email from Richard Jagger to Peter Hicks, sent at 3:48pm on 20 March
2006, entitled “Fw: HTS03017 – NSBT”, attaching a document entitled,
“Brisbane North South Bypass Tunnel, Review of Patronage Assessment
Addendum 2 – Alternative Tolling Strategy (1.5 times for LCV and 2.65
times for HCV) 17 March 2006, Hutcheson Transport Solutions Pty Ltd”,
[ACM.001.033.7123] with attachments [ACM.001.033.7126] and
[ACM.001.033.7127].
12. Email from Richard Jagger to Peter Hicks, copied to others, sent at
12:22pm on 5 April 2006, entitled, “Calum’s report” attaching a document
entitled, “Brisbane North South Bypass Tunnel, Review of Patronage
Assessment, Addendum 3, 5 April 2006, Hutcheson Transport Solutions
Pty Ltd”, [ACM.001.033.7177] with attachment [ACM.001.033.7179].
13. Email from Peter Hicks to Alan Broadbent, sent at 18:23 on 1 May 2006,
entitled, “RE: Sensitivity Analysis”, [ACM.001.038.5377].
14. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Beca's Work, Beca's NSBT Capacity Findings and Hicks' Beca Actions
Beca's Work
60. From in or about May 2005, and, in any event, from by no later than in or about early
August 2005, Beca:
(a) reviewed the concept design for the NSBT;
(b) reviewed documents which Beca considered to be relevant;
(c) reviewed design issues which Beca considered to be relevant to the NSBT;
Part B. North-South Bypass Tunnel
101
(d) reviewed the technical feasibility of the proposed engineering solutions for road
and traffic matters;
(e) reviewed NSBT micro simulation models and videos for both 2011 and 2021
forecast AM Peak and afternoon peak periods;
(f) reviewed the NSBT lane capacity assumptions used by AECOM Australia in
deriving AECOM Australia's Traffic Forecasts which were developed and made in
circumstances where AECOM Australia had been otherwise instructed to
assume, for the purposes of AECOM Australia's NSBT Commission and AECOM
Australia's Traffic Forecasts, that the NSBT would be designed and built so as to
deliver the capacity required to carry forecast traffic flows (the NSBT Capacity
Assumptions);
(g) reviewed AM Peak northbound traffic flows on the SHT between 1993 and 2004;
(h) prepared its findings as to whether:
(i) the concept design was appropriate for the NSBT; and
(ii) the NSBT Capacity Assumptions were reasonable and appropriate;
(i) prepared and provided the RCM Consortium with a report on the outcome of
Beca's work (Beca's Report); and
(j) prepared and provided the RCM Consortium with a letter summarising the key
factual matters and opinions expressed in Beca's Report for inclusion in the PDS
(Beca's PDS Summary Report),
(together, Beca's Work).
Particulars
1. "Scope of Services" set out in attachment 1 to "North South Bypass
Tunnel - Independent Engineer Exclusivity Agreement" signed on behalf
of Beca, and the Sponsor Clients and dated 9 September 2005,
[WLB.001.017.0793].
2. Email from Richard Jagger to Alan Broadbent and others, sent at 9:10am
on 8 May 2006, entitled "Capacity section from Beca report",
[ACM.001.033.7396] and attachment [ACM.001.033.7397].
3. Beca's PDS Summary Report, PDS at pages 99-113,
[RCG.001.008.6127].
4. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Beca's NSBT Capacity Findings
61. Beca's conclusions and opinions in relation to the NSBT Capacity Assumptions (Beca's
NSBT Capacity Findings) were that:
(a) the NSBT Capacity Assumptions as at the assumed opening of the NSBT in 2010
were:
Part B. North-South Bypass Tunnel
102
(i) "in line" with observed SHT traffic flows; and
(ii) were an appropriate approach;
(b) analysis of SHT traffic flows indicated that, and how, lane capacities can, and do,
grow over time;
(c) it was reasonable to assume future increases in lane capacities due to improved
traffic management and vehicle technology over time; and
(d) it was not, in the circumstances, inappropriate or unreasonable to assume linear
increases in NSBT lane capacity from 2011 to 2021 so as to reflect expectations
of improved vehicle designs and braking and acceleration performance, improved
driver information and better traffic management over that time.; and
Particulars
1. Email from Richard Jagger to Alan Broadbent and others, sent at 9:10am
on 8 May 2006, entitled "Capacity section from Beca report",
[ACM.001.033.7396] and attachment [ACM.001.033.7397].
2. Beca's PDS Summary Report, PDS pages 99-113, [RCG.001.008.6127].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
62. Neither Beca's Report, Beca's PDS Summary Report nor Beca's NSBT Capacity
Findings, contained any recommendation or advice that, nor did Beca otherwise
recommend or advise either the RCM Consortium or AECOM Australia that, AECOM
Australia's Traffic Forecasts were inappropriate or unreasonable or not based upon
reasonable grounds by reason of their having been made upon assumptions which
included the NSBT Capacity Assumptions and, or in the alternative, that a warning to that
effect was reasonably necessary or required.
Hicks' Beca Actions
63. From in or about June 2005, Peter Hicks:
(a) engaged Beca;
(b) agreed the scope of Beca's Engagement;
(c) provided instructions to Beca;
(d) engaged in correspondence, discussions and meetings with or concerning Beca
and Beca's Work;
(e) received reports, advice, feedback and other work product from Beca concerning
Beca’s NSBT Capacity Findings; and
(f) further to sub-paragraph (e) above, received Beca's Report and Beca's PDS
Summary Report,
(together, Hicks' Beca Actions).
Part B. North-South Bypass Tunnel
103
Particulars
Hicks’ Beca Actions as alleged above are illustrated in, and by, the following
documents:
1. Peter Hicks attended a Sponsor Clients' meetings to discuss the retainer
and instructions to Beca, [RCG.001.001.4127] and [RCG.001.001.9352].
2. On or about 26 September 2005 Peter Hicks signed the Beca Exclusivity
Agreement, [WLB.001.017.0793].
3. On or about 8 May 2006 Peter Hicks reviewed a section from Beca's
Report as at in or about early December 2005 concerning NSBT and
surface capacity, [ACM.001.033.7396] and [ACM.001.033.7397].
4. Peter Hicks was a member of, and led, the TDDSC which considered
capacity assumptions and relevant parts of Beca's Report in or about
early to mid-May 2006, [ACM.002.001.7714].
5. Peter Hicks met with Beca on or about 16 May 2006 to discuss ABN
AMRO's comments on a draft of Beca's PDS Summary Report,
[WLB.003.012.4344].
6. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Hicks' Financier and Investors Actions
64. From no later than in or about October 2005, Peter Hicks co-ordinated, supervised and
provided instructions and other inputs and feedback in connection with the preparation,
and distribution, of, and drafted, responses to questions or requests for information
received from, or by and on behalf of, RCM Financiers and Investors in respect of traffic
matters (Hicks' Financier and Investor Actions).
Particulars
Hicks’ Financier and Investor Actions as alleged above are illustrated in, or by,
the following documents:
1. Email from Adam Chittendon to David Plowman and Peter Hicks copying
in Dr Craig Shepherd and others sent at 10:47 on 25 July 2005, entitled
"Re: Roadshow 'Dry Run' Details for 27th July 2005", [NIR.001.001.0359].
2. Email from Peter Hicks to Dr Craig Shepherd sent at 13:42 on 26 July
2005, entitled "Draft Presentation" and email from Dr Craig Shepherd to
Peter Hicks, entitled "Fwd: Draft Presentation" with attachment entitled
"Financiers Roadshow NIEIR Draft 25th July.ppt", [NIR.001.001.0156] and
attachment [NIR.001.001.0157].
3. Email from Peter Hicks to Adam Chittendon and David Plowman copying
in Dr Craig Shepherd sent at 10:33 on 2 August 2005, entitled "Financier
Roadshow NIEIR Draft 29thJuly NP 2000Version.ppt",
[RCG.001.001.6166] and attachment [RCG.001.001.6167].
Part B. North-South Bypass Tunnel
104
4. Email from Peter Hicks to Deborah Hutchison sent at 06:45 on 27 July
2005, entitled "Re: NSBT Presentation" with attachment entitled
"NSBT_Traffic Modelling Overview 270705.ppt", [ACM.001.034.3116] and
attachment [ACM.001.034.3118].
5. Email from Peter Hicks to Matthew McCarthy and others sent at 12:38 on
28 July 2005, entitled "NSBT Maunsell Presentation One" with attachment
entitled "NSBT_Traffic Modelling Overview 270705.ppt",
[ACM.001.034.3135] and attachment [ACM.001.034.3137].
6. Email from Philip Brogan to Peter Hicks and others sent at 18:30 on 2
August 2005, entitled "NSBT T&T - Presentation" with attachment entitled
"2005_0208a NSBT_Traffic Modelling Overview.ppt",
[ACM.001.019.2506] and attachment [ACM.001.019.2507].
7. Email from Amanda Copping to Iain Stewart and others including Robert
Tiley and Dario Musso sent at 11:04 on 5 August 2005, entitled "UPDATE:
NSBT - Financiers Roadshow - 10th August, 2005 with attachment
entitled "0508_02 Roadshow Agenda_DP 10th August.pdf",
[WLB.003.004.9612] and attachment [WLB.003.004.9615].
8. Project Overview and Initial Technical Briefing North-South Bypass
Tunnel: A Presentation to Project Financiers dated August 2005
[RCG.001.006.0385].
9. Email from Peter Hicks to Gillian Akers sent at 16:52 on 4 October 2005,
entitled "Draft Presentation" [RCG.001.001.8686].
10. Email from Marcus Lorentz to Iain Stewart and others including Robert
Tiley and Dario Musso sent at 17:18 on 5 October 2005, entitled "NSBT -
Traffic Report Working Note" with attachment entitled "NSBT - Traffic
Report Working Note - 5Oct05.doc", [WLB.003.004.8456] and attachment
[WLB.003.004.8457].
11. Email from Marcus Lorentz to Amanda Copping and Peter Hicks and
copied to others, sent at 09:09 on 7 October 2005, entitled "NSBT - Bank
Group Traffic Questions (Draft Working List) with attachment entitled
"NSBT - Bank Group Traffic Questions (Draft Working List - 7Oct05.doc",
[WLB.003.004.8434] and attachment [WLB.003.004.8436].
12. Email from Peter Hicks to Alan Broadbent, sent at 5:02 on 7 October
2005, entitled “FW: NSBT Traffic etc”, [ACM.001.033.6718] and
attachment [ACM.001.033.6722].
13. Email from Alan Broadbent to Peter Hicks and copied to others, sent at
20:27 on 7 October 2005, entitled “Bank Questions – Preliminary
Response”, attaching a document entitled, “NSBT – Bank Group Traffic
Questions (Draft working List)”, [ACM.001.033.6701] with attachment
[ACM.001.033.6702].
14. Email from Alan Broadbent to Peter Hicks, sent at 21:27 on 7 October
2005, entitled “Re: FW: NSBT Traffic etc”, attaching a document entitled
“Preliminary response to Michael Hermans email”, [ACM.001.062.7234]
with attachment [ACM.001.062.7240].
15. Email from Richard Jagger to Marcus Lorentz copied to others including
Peter Hicks, sent at 17:59 on 8 October 2005, entitled "Re: NSBT - Bank
Part B. North-South Bypass Tunnel
105
Group Traffic Questions (Draft Working List)", [WLB.003.004.8275] with
attachments [WLB.003.004.8278] and [WLB.003.004.8279].
16. Email from Peter Hicks to Alan Broadbent, and copied to Dr Craig
Shepherd and others, sent at 07:15 on 9 October 2005, entitled “RE: FW
NSBT Traffic”, attaching documents entitled “Bond Questions
8Oct05.doc”, “Bank Question 8Oct05.doc” and “CKI Question 8Oct05.doc”
[ACM.001.033.6692] with attachments [ACM.001.033.6698],
[ACM.001.033.6699] and [ACM.001.033.6700].
17. Email from Alan Broadbent to Peter Hicks, and copied to others, sent at
18:18 on 9 October 2005, entitled “Bank Responses (Additional
comments by AB)” attaching documents entitled “Bond Question AB
additional comments 9Oct05”, “Bank Questions AB additional comments
9Oct05” and “CKI Question AB additional comments 9Oct05”,
[ACM.001.033.6688] with attachments [ACM.001.033.6689],
[ACM.001.033.6690] and [ACM.001.033.6691].
18. Email from Adam Chittendon, Babcock and Brown, to Peter Hicks, sent at
4:22pm on 11 October 2005, entitled “NSBT-Traffic review Queries”,
[ACM.001.111.5915].
19. Email from Peter Hicks to Richard Jagger and copied to others, sent at
5:23 on 13 October 2005, entitled "Consolidated Answers to Bank
Questions" attaching a document entitled “Bank Question 13Oct05.doc”
[ACM.001.033.6686] with attachment [ACM.001.033.6687].
20. Email from Peter Hicks to Richard Jagger, copied to others, sent at 6:23
am on 13 October 2005, entitled “Consolidated Answers to Bank
Questions”, [ACM.001.111.5907] with attachment [ACM.001.111.5909].
21. Email from Richard Jagger to Marcus Lorentz copying in others including
Dario Musso and Robert Tiley sent at 08:54 on 13 October 2005, entitled
"Re: Fw: Traffic Report Update" with attachment entitled "Bank Question
13Oct05.doc", [WLB.003.004.7742] and attachment [WLB.003.004.7743].
22. Email from Peter Hicks to Richard Jagger, copied to Nicholas Entsch and
others, sent at 8:50 on 15 October 2005, entitled “RE: NSBT-Traffic
Review Queries”, [ACM.001.033.6642] with attachment
[ACM.001.033.6648].
23. Email from Peter Hicks to Richard Jagger, copied to Nick Entsch and
others, sent at 13:45 on 21 October 2005, entitled "Bank Answers" with
attachment entitled "Bank Question 21Oct05.doc" and another
attachment, [ACM.001.033.6675] and attachments [ACM.001.033.6676]
and [ACM.001.033.6677].
24. Email from Peter Hicks to Sandy Thomas, copied to Amanda Copping and
others, sent at 15:36 on 29 October 2005, entitled "Comments on Traffic
Report" with attachments including "Bank Question 29Oct05",
[ACM.001.033.6727] and attachment [ACM.001.033.6731].
25. Email from Peter Hicks to Richard Jagger, copied to others, sent at 09:32
on 2 November 2005, entitled “Bank Responses” and attachments
including a Powerpoint presentation entitled “Traffic Forecasts – Base
Model Review – A Presentation to Project Financiers – Sponsors Advisor
- Parsons Brinckerhoff, 5 October 2005” and "Bank 2Nov05.doc",
Part B. North-South Bypass Tunnel
106
[ACM.001.033.6732] and attachments [ACM.001.033.6734],
[ACM.001.033.6761], [ACM.001.033.6762], [ACM.001.033.6763],
[ACM.001.033.6764], [ACM.001.033.6765], [ACM.001.033.6766],
[ACM.001.033.6767], [ACM.001.033.6768], [ACM.001.033.6769],
[ACM.001.033.6770], [ACM.001.033.6771], [ACM.001.033.6772].
26. Email from Iain Stewart to John McNamee, Dario Musso, Robert Tiley and
others, sent at 15:29 on 3 November 2005, entitled "Re: Bank Base
Case", [WLB.003.004.7042]
27. Email from John McNamee to Dario Musso copied to others including
Robert Tiley sent at 12:47 on 3 November 2005, entitled "Re: Bank Base
Case", [WLB.003.004.7054].
28. Email from Peter Hicks to Sandy Thomas, Alan Broadbent. Richard
Jagger and Nick Entsch sent at 21:56 on 7 November 2005, entitled "The
Final! Bank queries" with attachment entitled "Bank Question
7Nov05.doc", [ACM.001.033.6773] and attachment [ACM.001.033.6774].
29. Email from Amanda Copping to Shane Logan of National Australia Bank
and others, sent at 9:12pm on 8 November 2005, entitled "Re: Impact of
Tunnel capacity on traffic breakeven", [WLB.003.004.6705].
30. Email from Marcus Lorentz to Amanda Copping and Peter Hicks and
copied to others, sent at 17:12 on 9 November 2005, entitled "NSBT
Additional traffic questions", [WLB.003.004.6692].
31. Email from Shane Logan to Amanda Waring and others including Dario
Musso and Robert Tiley sent at 10:35 on 11 November 2005, entitled "Re:
Expansion Factor Spreadsheet", [WLB.003.004.6573].
32. Email from Amanda Copping to Iain Stewart and others including Thao
Oakey, sent at 7:02pm on 11 November 2005, entitled "Timetable etc",
[WLB.001.010.0034].
33. Email from Peter Hicks to Robert Tiley, Amanda Copping and Richard
Jagger, copied to others including Dario Musso, sent at 20:45 on 11
November 2005, entitled "RE: Courier Mail article" with attachment
entitled "Extract from QTC report.doc", [WLB.003.004.6542] and
attachment [WLB.003.004.6544].
34. Email from Peter Hicks to Richard Jagger, copied to Amanda Copping
and others, sent at 12:50 on 12 November 2005, entitled "Bank Queries"
with attachments entitled "Bank Question 12 Nov05.doc" and "Appendix
G_RCMopeningyearexpfact.xls", [ACM.001.033.6803] and attachments
[ACM.001.033.6805] and [ACM.001.033.6806].
35. Email from Richard Jagger to Amanda Waring and others, copied to Peter
Hicks and Amanda Copping, sent at 16:34 on 12 November 2005, entitled
"Traffic responses", [WLB.003.004.6531] with attachments
[WLB.003.004.6532] and [WLB.003.004.6533].
36. Email exchange between Shane Logan and Peter Hicks and others
including Dario Musso and Robert Tiley sent at 10:03 on 15 November
2005 with attachment entitled "ALAN_EXP.xls", [WLB.003.004.6396] and
attachment [WLB.003.004.6400].
Part B. North-South Bypass Tunnel
107
37. Email from Peter Hicks to Robert Morris and others, copied to Richard
Jagger and others, sent at 17.53 on 15 November 2005 entitled "RE:
Materials from this morning's EWG", [ACM.001.033.6624].
38. Email from Peter Hicks to Robert Tiley, copied to Richard Jagger, sent at
05:43 on 16 November 2005, entitled "Query re Comparison with MFM"
with attachment entitled "4. compare_Maunsell_models.xls",
[WLB.003.006.7226] and attachment [WLB.003.006.7228].
39. Email from Peter Hicks to Amanda Waring and others including Dario
Musso and Robert Tiley, sent at 5:47am on 16 November 2005, entitled
"FW: Bank Issues", email from Dario Musso to Glen Boniface sent at
09:12 on 16 November 2005, entitled "FW: Bank Issues", with
attachments entitled "1. impact of $4.50 toll.doc", "2. deferred growth
sensitivities.xls" and "3. travel times.xls", [WLB.003.003.8778] and
attachments [WLB.003.003.8781], [WLB.003.003.8782], and
[WLB.003.003.8783].
40. Email exchange between Peter Hicks and Robert Tiley sent at 08:42 on
23 November 2005, entitled "Re: Query re Comparison with MFM",
[WLB.003.007.9968].
41. Email from Amanda Copping to Iain Stewart and others and copied to
Peter Hicks and others, sent 16:45 on 25 November 2005, entitled "NSBT
- Beca Response to Banks", [WLB.003.004.5296] with attachment
[WLB.003.004.5298].
42. Email from Marcus Lorentz to Amanda Copping and copied to others
including Peter Hicks, sent at 09:16 on 16 March 2006, entitled "NSBT -
Traffic Forecasts", [WLB.003.013.7797].
43. Email from Peter Hicks to Richard Jagger, copied to Alan Broadbent, sent
at 13:25 on 31 March 2006, entitled "FW: $3.50 Expansion Factor Note",
with attachment entitled "$3.50 expansion factors.doc",
[ACM.001.033.7173] and attachment [ACM.001.033.7175].
44. Email from Richard Jagger to Richard Cooper, copied to Amanda Waring
and others including Dario Musso and Robert Tiley, sent at 13:58 on 31
March 2006, entitled "Re: $3.50 Traffic", [WLB.003.013.6944].
45. Email from Iain Stewart to John McNamee, copied to Amanda Waring and
others including Dario Musso and Robert Tiley, sent at 10:53 on 10 April
2006, entitled "Re: NSBT - Monday 10.30am Conference Call" with
attachment entitled "Memo BCC Bus Use of NSBT.pdf",
[WLB.003.013.5676] and attachment [WLB.003.013.5678].
46. Email from Marcus Lorentz to Amanda Copping, copied to Robert Tiley,
Dario Musso and others, sent at 16:13 on 18 May 2006, entitled "Re:
traffic comments", [WLB.003.012.3156].
47. Email from Sandy Thomas, to Peter Hicks and others, sent at 15:34 on 19
May 2006, entitled “Amendments to NSBT traffic report in response to the
final bank requests of 18 May” [sic] [ACM.001.038.5440] with attachment
[ACM.001.038.5441].
Part B. North-South Bypass Tunnel
108
48. Email from Peter Hicks to Marcus Lorentz and Amanda Copping, copied
to others, sent at 21:42 on 23 May 2006, entitled "RE: NSBT - Traffic",
[WLB.003.012.1420].
49. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored on
servers maintained by, or for and on behalf of, the Sponsor Clients or, in
the alternative, ABN AMRO, in the course of the NSBT Project.
Registration of Non-Tolling RCM Proceedings Applicants as RCM SPVs by Sponsor
Clients
65. Further to paragraph 7 herein, between in or about October 2005 and December 2005,
the Sponsor Clients promoted the formation and registration of each of the Non-Tolling
RCM Proceedings Applicants, as RCM SPVs, as contemplated by AECOM Australia's
Contract and in furtherance of the Joint RCM Plan.
Particulars
AECOM Australia refers to and repeats the particulars to
paragraph 7 herein.
'Shadow' directors and officers of Non-Tolling RCM Proceedings Applicants
66. At all material times from the time each of the Non-Tolling RCM Proceedings Applicants
was registered:
(a) up to and including 16 May 2006, in the case of Malcolm Coleman; and
(b) up to at least August 2006, in the case of each of Peter Hicks, Robert Morris and
Charles Mott,
each of Peter Hicks, Robert Morris, Charles Mott and Malcolm Coleman, in their
respective capacities as directors and officers of each of the Non-Tolling RCM
Proceedings Applicants (together, the Four Directors), was subject to the direction and
control of, and was accustomed to acting in accordance with the instructions and wishes
of, the Sponsor Clients so as to:
(c) jointly constitute the Sponsor Clients as a single "director" of each of the Non-
Tolling RCM Proceedings Applicants within the meaning of "director" in section 9
of the Corporations Act; or, in the alternative,
(d) constitute each of the Sponsor Clients individually as a "director" of each of the
Non-Tolling RCM Proceedings Applicants within the meaning of "director" in
section 9 of the Corporations Act.
Particulars
1. The requisite control and direction, and action in accordance with
the instructions and wishes of, the Sponsor Clients, is to be
inferred from each of, or, in the alternative, from a combination of
some or all of the following facts, matters and circumstances:
(a) by no later than in or about April 2005 and prior to their
respective promotion and registrations, it was pre-
determined, by the Sponsor Clients, that the RCM SPVs
Part B. North-South Bypass Tunnel
109
which became the Non-Tolling RCM Proceedings
Applicants would, in furtherance of the Joint RCM Plan:
(i) prepare and submit a NSBT Project Bid while
controlled by the Sponsor Clients; and
(ii) if the NSBT Project Bid succeeded:
(A) hold the NSBT Concession between them;
(B) raise debt,
(C) raise equity through the RCM IPO;
(D) reimburse the Sponsor Clients for the costs
and expenses incurred by or on behalf of
the Sponsor Clients in furtherance of the
Joint RCM Plan;
(E) engage, and pay, Leighton and
Baulderstone to undertake the design and
construction of the NSBT; and
(F) pay fees (including advisory and
underwriting fees) to the Sponsor Clients or
companies related to the Sponsor Clients;
(b) under, and in pursuit of, the Joint RCM Plan, at least up
until financial close:
(i) the Sponsor Clients, rather than the formally
appointed directors of the Non-Tolling RCM
Proceedings Applicants acting as such, were to be,
and were, responsible, for the NSBT Project Bid
and final negotiations and AECOM Australia refers
to and repeats sub-paragraphs 1(b) and 1(c) of the
particulars to sub-paragraphs 29(e)(i) - (iv) herein;
(ii) all material decisions in relation to revenue
forecasting and overall business planning, project
structuring, NSBT Project Bid strategy, NSBT
Project Bid approach, establishing the RCM SPVs,
NSBT Project Bid submission, negotiations in
respect of, or arising from, the NSBT Project Bid,
equity underwriting, debt procurement, equity
procurement and setting up organisational
structures were to be made, and were made, by
the Sponsor Clients, rather than by the formally
appointed directors of the Non-Tolling RCM
Proceedings Applicants acting as such, and were
subject to "sign-off" by the Sponsor Clients and
AECOM Australia refers to and repeats the
particulars to sub-paragraphs 29(e)(i) - (iv) herein;
(iii) all administration and strategic direction was to be,
and was, provided by the Sponsor Clients through
the RCM Steering Committee (rather than by the
formally appointed directors of the Non-Tolling
Part B. North-South Bypass Tunnel
110
RCM Proceedings Applicants acting as such) and
AECOM Australia refers to and repeats sub-
paragraph 1(c) of the particulars to sub-paragraphs
29(e)(i) - (iv) herein; and, or in the alternative
(iv) NSBT Project Bids were subject to "sign-off" by the
Sponsor Clients and AECOM Australia refers to
and repeats sub-paragraph 1(b) of the particulars
to sub-paragraph 29(e)(i) - (iv) herein;
(c) the Non-Tolling RCM Proceedings Applicants did not have
financial capacities, or other necessary resources,
independent to that of the Sponsor Clients and AECOM
Australia refers to and repeats sub-paragraph 1(c) of the
particulars to sub-paragraphs 29(e)(i) - (iv) herein;
(d) the Four Directors, who were each either an employee of,
or an employed consultant to, one of the Sponsor Clients,
were appointed as directors of the Non-Tolling RCM
Proceedings Applicants:
(i) by or at the request and direction of the Sponsor
Clients; and
(ii) in, and only in, order to implement the Joint RCM
Plan;
(e) the Sponsor Clients, the Non-Tolling RCM Proceedings
Applicants and the Four Directors made no distinction
between, and accepted, as was the case, that there was
no relevant distinction between, the separate existence,
roles and actions of the Sponsor Clients, on the one hand,
and the separate existence and roles of the Non-Tolling
RCM Proceedings Applicants, on the other hand, in
relation to the NSBT Project as demonstrated by:
(i) the repeated use of identical terminology by
Sponsor Clients, the Non-Tolling RCM
Proceedings Applicants and the Four Directors
(being at least "RiverCity Motorway", "RiverCity
Motorway consortium" and "RCM") to variously
refer to the Sponsor Clients, to the Sponsor Clients
and one or more of the Non-Tolling RCM
Proceedings Applicants or to one or more of the
Non-Tolling RCM Proceedings Applicants as in
[ACM.002.001.3550], [RCG.003.001.0019], and
[RCG.009.002.0031];
(ii) the covering letter to the NSBT Project Bid dated 7
December 2005 [RCG.003.001.0001] which is on
the letterhead of RCM Operations and RCM Asset
(as the Non-Tolling RCM Proceedings Applicants
which formally submitted the NSBT Project Bid),
but which:
(A) refers to "RCM" as being a consortium of
the Sponsor Clients and to the Sponsor
Part B. North-South Bypass Tunnel
111
Clients submitting "their" response to the
BCC's request for proposals and to the
Sponsor Clients' track record in respect of
privately funded infrastructure projects; and
(B) is signed by the Sponsor Clients (rather
than by RCM Operations and RCM Asset);
(iii) the letter from the Sponsor Clients to ABN AMRO
Bank N.V. Australian Branch, Calyon Australia
Limited, HSBC Bank Australia Limited, National
Australia Bank Limited and WestLB AG dated 10
April 2006, [WLB.001.027.0518];
(f) each of the decisions, directions and sign-offs set out in
sub-paragraphs (a) and (b) above, was a wish and
instruction of the Sponsor Clients given to, and given effect
to by, the Four Directors in their respective capacities as
directors of the Non-Tolling RCM Proceedings Applicants
without demur and, or in the alternative, without any
substantive, appropriate or adequate consideration by the
Four Directors in their respective capacities as directors of
the Non-Tolling RCM Proceedings Applicants and
independent of the wishes and, or in the alternative, the
decisions, directions, and instructions of the Sponsor
Clients, as to whether that wish and, or in the alternative,
that decision, direction and, or in the alternative,
instruction, was in the best interests of each of the, or that,
Non-Tolling Applicant;
(g) the minutes of meetings of directors of RCM Finance held
on 6 December 2005 [RCG.010.001.0060], which show
that the members of the board of directors of RCM Finance
present at a meeting held on 6 December 2005 (namely,
Peter Hicks, Charles Mott and Malcolm Coleman) met and
resolved, or purported to meet, consider and resolve,
within only five minutes, to accept a commitment letter to
provide Equity Bridge and Construction & Council facilities,
a Mandate Offer to act as joint lead arrangers to "RiverCity
Motorway" and an Offer to Finance Construction & Council
in regards to toll option A from the Sponsor Clients, which
were complex arrangements relating to equity
underwriting, debt procurement and equity procurement
concerning material commitments involving many
hundreds of millions of dollars; and
(h) the apparent absence of minutes of meetings or other
evidence indicating that the directors of any of the Non-
Tolling RCM Proceedings Applicants, which comprised the
Four Directors, met, considered and determined, as
directors of the Non-Tolling RCM Proceedings Applicants
and independently of the Sponsor Clients or at all, that one
or more of the Non-Tolling RCM Proceedings Applicants
should submit an NSBT Project Bid and, or in the
alternative, that the Non-Tolling RCM Proceedings
Part B. North-South Bypass Tunnel
112
Applicants should, between them, proceed with the NSBT
Project if the NSBT Project Bid was successful;
(i) the apparent absence of any evidence of any decision
being made by the Four Directors in their capacity as the
directors of the Non-Tolling RCM Proceedings Applicants
which was inconsistent with the Joint RCM Plan or the
wishes of, or any decision made by, the Sponsor Clients;
and
(j) the fact that it was pre-determined by the Joint RCM Plan
that Leighton and Baulderstone would undertake the
design and construction work for the NSBT if the NSBT
Project Bid succeeded and they were duly awarded that, or
those, valuable contracts without any attempt being made
to put that work out to competitive tender, notwithstanding
the size, complexity and cost of that work.
2. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
67. Further and in the alternative to paragraph 66 herein, at all material times up to and
including at least August 2006, the Sponsor Clients jointly or, in the alternative, each of
the Sponsor Clients individually, were or was:
(a) a "person" (for the purposes of the Corporations Act):
(i) who made or participated in making decisions that affected the whole, or a
substantial part, of the business of each Non-Tolling Applicant and
AECOM Australia refers to and repeats paragraph 66 herein and the
particulars thereto;
(ii) who had the capacity to affect significantly the financial standing of each
Non-Tolling Applicant in circumstances where:
(A) it was pre-determined, by the Sponsor Clients that the Non-Tolling
RCM Proceedings Applicants would, between them, submit an
NSBT Project Bid and hold the NSBT Concession and undertake
and complete the NSBT Project and operate the NSBT if the
NSBT Project Bid succeeded and AECOM Australia refers to and
repeats paragraph 5 and sub-paragraph 1(a) of the particulars to
paragraph 66 herein;
(B) submitting an NSBT Project Bid, holding the NSBT Concession
and undertaking and completing the NSBT Project and operating
the NSBT if the NSBT Project Bid succeeded required significant
financial capacity and resources; and
(C) both the Sponsor Clients and the Non-Tolling RCM Proceedings
Applicants knew, as was obvious in any event, that the Non-
Tolling RCM Proceedings Applicants did not have financial
capacities independent of the Sponsor Clients and AECOM
Australia refers to and repeats sub-paragraph 1(c) of the
Part B. North-South Bypass Tunnel
113
particulars to sub-paragraphs 29(e)(i) - (iv) herein; and, or in the
alternative
(iii) in accordance with whose instructions or wishes the directors of each
Non-Tolling Applicant were accustomed to act and AECOM Australia
refers to and repeats paragraph 66 herein and the particulars thereto; and
(b) by reason of the matters alleged in sub-paragraph (a) above or, in the alternative,
a combination of one or more of them:
(i) jointly constituted a single "officer" of each of the Non-Tolling RCM
Proceedings Applicants within the meaning of "officer" in section 9 of the
Corporations Act; or, in the alternative,
(ii) each individually an "officer" of each of the Non-Tolling RCM Proceedings
Applicants within the meaning of section 9 of the Corporations Act.
NSBT Traffic Forecast Facts
Peter Hicks' knowledge of NSBT Traffic Forecast Facts
68. By no later than 7 December 2005, before any NSBT Project Bid was submitted, and at
all material times thereafter, Peter Hicks knew each of the following matters (each of
these matters is hereafter collectively referred to as the NSBT Traffic Forecast Facts):
(a) there was competition for the NSBT Concession;
(b) AECOM Australia's Traffic Forecasts were prepared by AECOM Australia in
connection with a competitive bid to be presented to the BCC for the NSBT
Concession;
(c) the Sponsor Clients and, or in the alternative, related entities thereof would earn
substantial revenues, and were likely to earn or, at least, had the potential to
earn, substantial profits, if, but only if, the NSBT Project Bid was successful;
(d) future traffic volumes on the future road network of a large and rapidly growing
city depended upon many factors, particularly future population and employment
demographics and traffic and congestion levels on the road network, taking
account of various contingent future changes to the city and its road network;
(e) future traffic volumes on the future road network of Brisbane after 2005
particularly depended upon the factors identified in sub-paragraph (d) above;
(f) the types of, and bases for, the forecasts commissioned, the uses to which the
forecasts were to be put and the time and budget allowed for AECOM Australia's
NSBT Commission, and that each of these was relevant to the outcomes of
AECOM Australia's NSBT Work;
(g) AECOM Australia's NSBT Work:
(i) necessarily relied upon a complex set of data inputs and assumptions;
(ii) was otherwise complex; and
(iii) was not a precise science;
(h) the material choices and judgements to be made, and which had been made, as
to data inputs and assumptions or, in the alternative, material data inputs and
assumptions, in AECOM Australia's NSBT Work;
Part B. North-South Bypass Tunnel
114
(i) NSBT traffic volumes may not grow at the rate and, or in the alternative, times
projected;
(j) AECOM Australia could not, and did not, guarantee that NSBT traffic volumes
would grow at the rate and, or in the alternative, times projected or at all, or would
reach, stay at, or not fall from any particular level;
(k) AECOM Australia could not, and did not, guarantee that all, or necessarily any, of
the estimates and assumptions upon which AECOM Australia's NSBT Work was
performed would, in fact, be and, or in the alternative, continue to be, correct,
accurate or appropriate, or that projected future NSBT traffic volumes or other
NSBT Project outcomes would be achieved;
(l) AECOM Australia's projections of future NSBT traffic volumes would only be
illustrative of the outcomes derived from modelling a given set of instructions,
assumptions and inputs and may be materially affected by changes in economic
and other circumstances, may not be achieved and, or in the alternative, may not
prove to be correct;
(m) traffic forecasting and traffic forecasts are subject to obvious risks, inherent risks
and intrinsic uncertainties, especially in respect of what is, or is believed to be, a
large and rapidly growing city;
(n) AECOM Australia's NSBT traffic forecasting was subject to obvious risks, inherent
risks and intrinsic uncertainties, especially in respect of what was, or, in the
alternative, was reasonably believed to be, a large and rapidly growing city such
as Brisbane;
(o) traffic modelling process and methodology, from and by which traffic forecasts are
derived, necessarily involve various steps, assumptions and other inputs, many of
which are interdependent;
(p) further to sub-paragraph (o) above, traffic modelling process and methodology,
from and by which traffic forecasts are derived usually, or may, involve the
following steps, assumptions and other inputs, all or, in the alternative, many, of
which are interdependent:
(i) traffic count and journey time surveys;
(ii) stated and revealed preference or other consumer surveys;
(iii) estimates of road trips taken;
(iv) assumptions as to trip purposes;
(v) estimates and assumptions pertaining to economic conditions, population
growth, employment, land use and regional economic development;
(vi) estimates and forecasts of trip origins and trip destinations and their
distributions;
(vii) data assessment;
(viii) assumptions as to the perceived benefits and drawbacks of different
routes and driver response to tolls under different travel time scenarios
and different traffic and travel cost conditions;
(ix) assumptions as to network speeds and capacity;
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115
(x) toll model development;
(xi) trip assignment;
(xii) model calibration and validation;
(xiii) Expansion Factors;
(xiv) Annualisation Factors;
(xv) base and future year estimates of traffic and travel time; and
(xvi) assumptions in relation to government and council plans for roadwork
development;
(q) consistent with common and reasonable practice, AECOM Australia's NSBT
traffic forecasting methodology involved various steps, assumptions and other
inputs, all or, in the alternative, many of which were interdependent;
(r) further to sub-paragraph (q) above, AECOM Australia's NSBT traffic forecasting
methodology involved the steps, assumptions or other inputs set out in sub-
paragraph (p) above;
(s) the material choices and judgements to be made, and which had been made,
within AECOM Australia's traffic forecasting methodology, as to the steps,
assumptions or other inputs set out in sub-paragraph (p) above;
(t) assumptions and forecasts pertaining to population, population growth or decline,
employment, land use, economic development and trip generation were all
relevant to, and important in, forecasting future NSBT traffic volumes;
(u) population, population growth or decline, employment, land use, economic
development and trip generation were all relevant to, and had a material effect,
upon growth estimates and future NSBT traffic volumes;
(v) actual future NSBT traffic volumes would, or could, be affected, both directly and
indirectly, by numerous factors, many of which were unable to be predicted by
either AECOM Australia or the RCM Consortium;
(w) NSBT revenue, NSBT profitability, the ability of the Non-Tolling RCM Proceedings
Applicants and any other RCM SPV to pay their respective debts, and returns to
investors, were all materially influenced by how many vehicles used the NSBT in
the future;
(x) any of, or any combination of, the following factors could affect actual future
NSBT traffic volumes:
(i) economic developments;
(ii) demographic and economic conditions;
(iii) further to sub-paragraph (ii) above, inflation, upward movements in
relevant consumer price indexes, population growth, interest rates and
taxation;
(iv) the pace, nature and locations of population, employment or economic
growth (or decline) in Brisbane;
(v) industrial and residential shifts in the areas that the NSBT would, or might,
service;
Part B. North-South Bypass Tunnel
116
(vi) general traffic levels in the relevant area and on routes to and from the
NSBT;
(vii) trip distribution;
(viii) future network changes;
(ix) the planned and possible future capacity of the NSBT and the relevant
surrounding network;
(x) the occurrence and timing of other road projects;
(xi) further to sub-paragraph (x) above, the timing of the Gateway Bridge,
Airport Link and Hale Street Bridge projects;
(xii) any failure to make anticipated or assumed network changes;
(xiii) further to sub-paragraph (xii) above, any failure to proceed with the
scheduled introduction of a T3 lane on the Story Bridge;
(xiv) problems which might be experienced in integrating the NSBT into the
road network;
(xv) the fact, or possibility, of additional and, or in the alternative, unexpected
roadway alternatives;
(xvi) the quality and proximity of alternative roads and other transport
infrastructure;
(xvii) changing travel patterns and habits;
(xviii) toll rates;
(xix) the penetration of e-tolls into the marketplace;
(xx) drivers' willingness to pay tolls;
(xxi) whether the benefits offered by the NSBT (including travel time savings)
were considered by drivers to be worth the toll payment;
(xxii) the correlation between speed of travel and traffic volumes at relevant
points of time;
(xxiii) traffic levels and congestion in the relevant areas and on routes to and
from the NSBT;
(xxiv) the capacity of the NSBT and its feeder and competing roads; and, or in
the alternative,
(xxv) traffic demand variability at different times of the day, week and year;
(y) the material choices and judgements to be made, and which had been made,
within AECOM Australia's NSBT traffic forecasting methodology, as to the matters
set out in sub-paragraph (x) above;
(z) unanticipated, materially or significantly lower consumer confidence and, or in the
alternative, disposable incomes and, or in the alternative, a sudden, sharp,
material and enduring decline in consumer spending would have a material and
compounding, adverse effect on actual NSBT traffic compared to forecast traffic;
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117
(aa) an unanticipated recession or material local, national or global economic
downturn(s) or crises would have a material and compounding adverse effect on
actual NSBT traffic compared to forecast traffic;
(bb) an abnormal level of growth and, or in the alternative, abnormal volatility in fuel
prices would, or may, have an adverse effect on actual NSBT traffic compared to
forecast traffic;
(cc) the proximity and quality of alternative roads and competing transport
infrastructure was relevant to, and would impact, actual NSBT traffic volumes;
(dd) the material choices and judgements to be made, and which had been made, as
to alternative roads and competing transport infrastructure and the impact of
those choice and judgements on AECOM Australia's NSBT traffic forecasting;
(ee) existing and future government plans and policies would, or may, have a
potentially adverse effect on actual NSBT traffic compared to forecast traffic;
(ff) materially or significantly increased public transport usage (either, or both, in
absolute terms and relative to private vehicle usage), would have a material and
compounding, adverse effect on actual NSBT traffic compared to forecast traffic;
(gg) material or significant adverse changes in network configuration compared to
forecast network configuration would have a material and compounding adverse
effect on actual NSBT traffic compared to forecast traffic;
(hh) a material and widespread reluctance, or a material decline, in driver willingness
to pay tolls, would have a material adverse effect on actual NSBT traffic
compared to forecast traffic;
(ii) unanticipated material declines in driver capacity to pay tolls would have a
material adverse effect on actual NSBT traffic compared to forecast traffic;
(jj) unanticipated lower network congestion would have an adverse and
compounding effect on actual NSBT traffic compared to forecast traffic;
(kk) the anticipated or possible rate of future improvements in vehicle technology was
a material factor relevant to the assessment of road capacity for the NSBT and its
feeder and competitor roads;
(ll) the material choices and judgements to be made, and which had been made, as
to possible rate of future improvements in vehicle technology insofar as relevant
to capacity;
(mm) the types, and the extent to which, relevant and reliable historical traffic data was
available and the applications and limitations of that data;
(nn) further to sub-paragraph (mm) above, the types, and the extent to which, relevant
and reliable historical traffic data was available to effectively calibrate a base year
traffic model;
(oo) the material choices and judgements to be made, and which had been made, as
to whether, and to what extent, new or additional traffic surveys or traffic counts
could, or should, be undertaken;
(pp) the available choices as between, and the material advantages and
disadvantages of, forecasting NSBT traffic by reference to AM Peak traffic
volumes or, instead, by reference to weekday all-hour or other multi-period traffic
Part B. North-South Bypass Tunnel
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volumes and the judgements to be made, and which had been made, in relation
thereto;
(qq) the material uncertainties, risks and, or in the alternative, consequences of
choosing to base NSBT traffic forecasts upon AM Peak traffic volumes to forecast
future AAWT for the NSBT;
(rr) further to sub-paragraph (qq) above, that using Expansion Factors to forecast
future AAWT for the NSBT was not risk-free;
(ss) the material choices and judgements to be made, and which had been made, as
to the use, and impact of, and the uncertainties and risks involved in using, the
Expansion Factors used in AECOM Australia's NSBT traffic forecasting;
(tt) how and why those Expansion Factors were chosen and used;
(uu) the need for Annualisation Factors to predict future annual NSBT traffic demand
based upon estimated future AAWT;
(vv) further to sub-paragraph (uu) above, that using Annualisation Factors to forecast
future AAWT for the NSBT was not risk-free;
(ww) the material choices and judgements to be made, and which had been made, as
to the use, and impact of, and the uncertainties and risks involved in using, the
Annualisation Factors used in AECOM Australia's NSBT traffic forecasting;
(xx) how and why those Annualisation Factors were chosen and used;
(yy) there were inherent limitations in using data regarding other roads as a point of
comparison and guidance for forecasting future NSBT traffic volumes;
(zz) the material limitations which existed in using data regarding other roads as a
point of comparison and guidance for forecasting future NSBT traffic volumes;
(aaa) the material choices and judgements to be made, and which had been made, in
the use of data regarding other roads as a point of comparison and guidance for
forecasting future NSBT traffic volumes;
(bbb) the material choices and judgements to be made, and which had been made, the
uncertainties involved in, and the inherent limitations of, trip generation
estimation;
(ccc) the material choices and judgements to be made, and which had been made, in
respect of, the uncertainties involved in, and the inherent limitations of,
assumptions and inputs regarding trip purpose;
(ddd) the material choices and judgements to be made, and which had been made, in
respect of, the uncertainties involved in, and the inherent limitations of, toll choice
and route predictions;
(eee) the relevance, correlation and impact of network congestion, speed of travel,
travel time savings, traffic volumes and driver willingness to pay tolls to, and
upon, forecast NSBT traffic volumes;
(fff) the relevance and impact of perceived and actual driver willingness to pay, and
perceived and actual driver understanding of the cost and value of tolls;
Part B. North-South Bypass Tunnel
119
(ggg) further to sub-paragraph (fff) above, the impact of any inherent or other features
of a toll road on the impact of perceived and actual driver willingness to pay, and
perceived and actual driver understanding of the cost and value of tolls;
(hhh) the material choices and judgements to be made, and which had been made,
regarding the matters set out in sub-paragraphs (fff) and (ggg) above and the
material assumptions and inputs used in AECOM Australia's NSBT Work as a
consequence thereof;
(iii) the material choices and judgements to be made, and which had been made, in
respect of, the uncertainties involved in, and the inherent limitations of, using
behavioural surveys to understand possible driver preferences in relation to the
NSBT and alternative routes;
(jjj) the material choices and judgements to be made, and which had been made, in
respect of issues relating to actual, and perceived, travel time savings, including
negative travel time savings;
(kkk) the material choices and judgements to be made, and which had been made, in
respect of, the uncertainties involved in, and the inherent limitations associated
with, forecasting future NSBT traffic;
(lll) the uncertainties and risks in traffic forecasting inevitably increased as the
forecast period lengthened;
(mmm) materially or significantly lower than assumed, or forecast, population, population
growth, employment, land use, economic development and, or in the alternative,
trip generation would have a material and compounding adverse effect on actual
NSBT traffic compared to forecast traffic;
(nnn) material or significant variation in the location of assumed, or forecast, population,
population growth, employment, land use, economic development and, or in the
alternative, trip generation would, or may, have a material compounding adverse
effect on actual NSBT traffic compared to forecast traffic;
(ooo) AECOM Australia's NSBT traffic forecasting necessarily required, and relied
upon, NIEIR's Growth Forecasts;
(ppp) the scope, limitations and effect of NIEIR's Growth Forecasts;
(qqq) there was an obvious and inherent risk that actual future traffic volumes in the
NSBT would be materially below AECOM Australia's NSBT traffic forecasts,
through no fault of AECOM Australia, if NIEIR's Growth Forecasts were to prove
to be materially inaccurate for any reason;
(rrr) further to sub-paragraph (qqq) above, that there was an obvious and inherent risk
that actual future traffic volumes in the NSBT would be materially below AECOM
Australia's NSBT traffic forecasts, through no fault of AECOM Australia, if NIEIR's
Growth Forecasts were to prove to be materially inaccurate because:
(i) actual economic growth was lower and, or in the alternative, slower than
forecast or assumed in NIEIR's Growth Forecasts, generally or in zones of
particular relevance to the NSBT;
(ii) actual population, and, or in the alternative, actual population growth,
were different, than forecast, or assumed, in NIEIR's Growth Forecasts,
generally or in zones of particular relevance to the NSBT;
Part B. North-South Bypass Tunnel
120
(iii) actual employment and, or in the alternative, actual employment growth,
were lower than forecast, or assumed, in NIEIR's Growth Forecasts,
generally or in zones of particular relevance to the NSBT;
(iv) there were unanticipated increases in actual unemployment which NIEIR
had not forecast or taken into account in NIEIR's Growth Forecasts,
generally or in zones of particular relevance to the NSBT;
(v) actual wages and, or in the alternative, actual wages growth, were lower
than was forecast, or assumed, in NIEIR's Growth Forecasts, generally or
in zones of particular relevance to the NSBT;
(vi) unplanned or unexpected changes in public transport policy negatively
impacted the trip matrices produced by NIEIR by making public transport
more attractive; and, or in the alternative,
(vii) trip generation was lower than was forecast, or assumed, in NIEIR's
Growth Forecasts, generally or in zones of particular relevance to the
NSBT;
(sss) actual future NSBT traffic volumes would be significantly lower, and the NSBT
Project would or may prove to be unsuccessful or financially disastrous, through
no fault of AECOM Australia, if one or more of the events set out in sub-
paragraph (rrr) above occurred to a significant extent;
(ttt) debt facilities may not be available if the NSBT Project performed poorly;
(uuu) an investment in the NSBT would be subject to investment risk;
(vvv) further to sub-paragraph (uuu) above, an investment in the NSBT would be
subject to possible loss of capital invested and repayment of capital was not
guaranteed;
(www) if, contrary to NIEIR's Growth Forecasts, there was, for whatever reason(s), no
growth in cross-Brisbane River traffic between 2005 and after the NSBT opened
in 2010, actual NSBT traffic (ignoring ramp-up) would, or was likely to be, or there
was a reasonable prospect that it would or would likely be, more than 35% below
AECOM Australia's Traffic Forecasts;
(xxx) if actual NSBT traffic was more than 35% below AECOM Australia's Traffic
Forecasts on a sustained basis (ignoring ramp-up) then the NSBT Project would
prove to be unsuccessful or financially disastrous;
(yyy) there were obvious and inherent risks that the NSBT Project may prove to be
unsuccessful or financially disastrous if there were adverse external
developments;
(zzz) further to sub-paragraph (yyy) above, there were obvious and inherent risks that
the NSBT Project may prove to be unsuccessful or financially disastrous, if there
were adverse external developments which were:
(i) not reasonably capable of being predicted by AECOM Australia at the
time AECOM Australia's NSBT traffic forecasts were made, within the
context of AECOM Australia's NSBT Commission; or, in the alternative,
(ii) were not required to be assumed or predicted by the RCM Consortium;
Part B. North-South Bypass Tunnel
121
(aaaa) the material inputs, technical and other advice, feedback and assistance available
to AECOM Australia at the time AECOM Australia's NSBT Commission was
carried out;
(bbbb) in undertaking AECOM Australia's NSBT Work, AECOM Australia would be, and
was, dependent upon the availability of relevant and reliable information and
instructions, information and feedback given by or on behalf of the RCM
Consortium to AECOM Australia in connection with, or for the purposes of,
AECOM Australia's NSBT Commission;
(cccc) the material choices, judgements and assumptions to be made, and which had
been made, in respect of, and the source, nature, extent, content, scope, context
and limitations of, material assumptions made, or used, in AECOM Australia's
NSBT Work;
(dddd) the nature, scope and effect of the material risks that would, or might, materially
affect NSBT traffic forecasts;
(eeee) the nature, scope and effect of the material risks that AECOM Australia had taken
into account in arriving at NSBT traffic forecasts within the context of AECOM
Australia's NSBT Commission;
(ffff) the limitations of making comparisons with existing toll or other roads;
(gggg) the explanations, disclosures, qualifications, exclusions, disclaimers and other
limitations contained in drafts of AECOM Australia's Traffic Reports prior to 7
December 2005 and in the December 2005 Traffic Reports;
(hhhh) the extent to which AECOM Australia's NSBT traffic forecasts were, or were
capable of being reasonably regarded as, conservative;
(iiii) the extent to which the assumptions, inputs or other grounds used by AECOM
Australia to derive AECOM Australia's NSBT traffic forecasts were, or were
reasonably capable of being regarded as, reasonable;
(jjjj) the extent to which the use by AECOM Australia of the assumptions, inputs or
other grounds used to derive AECOM Australia's NSBT traffic forecasts was, or
was reasonably capable of being regarded as, reasonable;
(kkkk) the extent to which AECOM Australia's NSBT traffic forecasts were, or were
reasonably capable of being regarded as, reasonable or based upon reasonable
grounds;
(llll) whether or not AECOM Australia had relied on unreasonable predictions of traffic
growth in Brisbane after 2005 in its AECOM Australia's NSBT traffic forecasts
whether by reason of its reliance upon, and use of, NIEIR's Growth Forecasts, or
otherwise; and
(mmmm) up to $1 million of AECOM Australia's total possible $2.5 million retainer
under AECOM Australia's Contract was not payable to AECOM Australia if
financial close was not achieved (the AECOM Australia's Retainer Discount).
Particulars
1. Peter Hicks' knowledge of each of the NSBT Traffic Forecast
Facts arose, or in the alternative, is to be inferred from:
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(a) his extensive expertise in the development, management,
maintenance and operation of major transport and other
infrastructure assets, and strong management skills as
alleged in sub-paragraph 29(b) herein;
(b) his experience gained in the course of Hicks' Leighton
Employment as alleged in sub-paragraph 29(c) herein;
(c) his experience in managing toll road and infrastructure
projects as alleged in sub-paragraph 29(c) herein;
(d) his Toll Road Expertise and Traffic Forecasting Expertise
as alleged, in each case, in sub-paragraph 29(d) herein;
(e) his appointment to the roles alleged in sub-paragraphs
29(e) and (f) herein in furtherance of the Joint RCM Plan in
connection with the NSBT Project;
(f) further to sub-paragraph (e) above:
(i) his appointment as the "RCM Project Director", the
head of the RCM Steering Committee, the leader
of the RCM Project Team, the Chief Executive
Officer of the Non-Tolling RCM Proceedings
Applicants, the head of the TDDSC, and as one of
the three key representatives, as alleged in sub-
paragraph 29(e) herein; and
(ii) his appointment as the person with authority, under
AECOM Australia's Contract, to act for the RCM
Consortium and Flow Tolling for all purposes in
connection with, the NSBT Project and in
accordance with all provisions of AECOM
Australia's Contract as alleged in sub-paragraphs
13(f) and 29(e) herein;
(g) the conferring of Hicks' Authority and Responsibilities as
alleged in sub-paragraph 29(g) herein;
(h) further to sub-paragraph (g) above, his particular
responsibilities:
(i) for making decisions in connection with, or in
respect of, traffic and revenue modelling, traffic
model calibration and traffic report writing as
alleged in sub-paragraph 29(g)(iii) herein;
(ii) to co-ordinate and supervise, obtain and provide
instructions, directions and other inputs, feedback
and assistance to, receive, review, approve and
accept reports, advice and other work product
from, and communicate with, AECOM Australia,
NIEIR, Keith Long, PB, HTS and Beca in
connection with traffic related aspects of the NSBT
Project as alleged in sub-paragraph 29(g)(iv)
herein;
Part B. North-South Bypass Tunnel
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(iii) to co-ordinate, supervise and provide instructions
and other inputs and feedback in connection with
the preparation and distribution of, and to draft
responses to questions or requests for information
received from, or by and on behalf of, RCM
Financiers and Investors in respect of traffic
matters as alleged in sub-paragraph 29(g)(v)
herein;
(i) Hicks' AECOM Australia Actions up to 7 December 2005
as alleged in paragraph 37 herein and as illustrated in, and
by, the documents listed in paragraphs 1 - 56 of the
particulars thereto; and
(j) further to sub-paragraph (i) above:
(i) his giving instructions or directions to AECOM
Australia in relation to at least the following traffic
and traffic forecasting matters:
(A) the scenarios for which NSBT forecasts
were to be made (that is, the Two Traffic
Forecast Scenarios);
(B) the use of NIEIR's Work;
(C) the assumption that the NSBT would be
designed and built to accommodate
forecast traffic;
(D) the use of AM Peak modelling; and
(E) the quantity and types of traffic survey work
to be paid for and undertaken;
(ii) his receipt and review of, commentary upon and
annotations upon, drafts of AECOM Australia's
Traffic Reports on or before 7 December 2005;
(iii) his receipt of the "Traffic Model Assumptions Book"
[RCG.003.001.0565], which was included with the
NSBT Project Bid signed by Peter Hicks and
Malcolm Coleman, and submitted to the BCC, on 7
December 2005;
(k) Hicks' NIEIR Actions up to 7 December 2005 as alleged in
paragraph 45 herein and as illustrated in, and by, the
documents listed in paragraphs 1 - 10 of the particulars
thereto;
(l) Hicks' Keith Long Actions up to 7 December 2005 as
alleged in paragraph 49 herein and as illustrated in, and
by, the documents listed in paragraphs 1 - 25 of the
particulars thereto;
(m) Hicks' PB Actions up to 7 December 2005 as alleged in
paragraph 54 herein and as illustrated in, and by, the
Part B. North-South Bypass Tunnel
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documents listed in paragraphs 1 - 13 of the particulars
thereto;
(n) Hicks’ HTS Actions up to 7 December 2005 as alleged in
paragraph 59 herein and as illustrated in, and by, the
documents listed in paragraphs 1 - 10 of the particulars
thereto;
(o) Hicks’ Beca Actions up to 7 December 2005 as alleged in
paragraph 63 herein and as illustrated in, and by, the
documents listed in paragraphs 1 and 2 of the particulars
thereto;
(p) Hicks’ Financier and Investor Actions up to 7 December
2005 as alleged in paragraph 64 herein and as illustrated
in, and by, the documents listed in paragraphs 1 - 41 of the
particulars thereto.
2. AECOM Australia's Contract [ACM.002.002.0247].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
69. Further and in the alternative to paragraph 68 herein, by no later than 7 December 2005
before any NSBT Project Bid was submitted on or about 7 December 2005, and at all
material times thereafter, Peter Hicks ought to have known each of the NSBT Traffic
Forecast Facts.
Particulars
AECOM Australia refers to and repeats the particulars to paragraph 68
herein.
Robert Morris' knowledge of NSBT Traffic Forecast Facts
70. By no later than 7 December 2005, before any NSBT Project Bid was submitted, and at
all material times thereafter, Robert Morris knew each of the NSBT Traffic Forecast
Facts.
Particulars
1. Robert Morris' knowledge of each of the NSBT Traffic Forecast Facts
arose, or in the alternative, is to be inferred from:
(a) his experience as alleged in sub-paragraphs 30(b) - (g) herein;
(b) his Toll Road Expertise and Traffic Forecasting Expertise as
alleged, in each case, in sub-paragraph 30(g) herein;
(c) his appointment to the roles alleged in sub-paragraphs 30(h) -
(j) herein in furtherance of the Joint RCM Plan in connection
with the NSBT Project;
(d) the conferring of Morris' Authority and Responsibilities as
alleged in sub-paragraph 30(k) herein;
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125
(e) Morris' AECOM Australia Actions up to 7 December 2005 as
alleged in paragraph 38 herein and as illustrated in, and by,
the documents listed in paragraphs 1 - 34 of the particulars
thereto;
(f) his receipt and review of drafts of AECOM Australia's Traffic
Reports on or before 7 December 2005 [ACM.001.035.4680];
(g) Morris' Keith Long Actions up to 7 December 2005 as alleged
in paragraph 50 herein and as illustrated in, and by, the
documents listed in paragraphs 1 - 24 of the particulars
thereto; and
(h) Morris’ PB Actions up to 7 December 2005 as alleged in
paragraph 55 herein and as illustrated in, and by, the
documents listed in paragraphs 1 - 4 of the particulars thereto.
2. AECOM Australia's Contract [ACM.002.002.0247].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
71. Further and in the alternative to paragraph 70 herein, by no later than 7 December 2005,
before any NSBT Project Bid was submitted and at all material times thereafter, Robert
Morris ought to have known each of the NSBT Traffic Forecast Facts.
Particulars
AECOM Australia refers to and repeats the particulars to paragraph 70
herein.
Charles Mott's knowledge of NSBT Traffic Forecast Facts
72. By no later than 7 December 2005, before any NSBT Project Bid was submitted, and at
all material times thereafter, Charles Mott knew each of the NSBT Traffic Forecast Facts.
Particulars
1. Charles Mott's knowledge of each of the NSBT Traffic Forecast Facts
arose, or in the alternative, is to be inferred from:
(a) his experience as alleged in sub-paragraphs 31(b) - (f) herein;
(b) his Toll Road Expertise and Traffic Forecasting Expertise as
alleged, in each case, in sub-paragraph 31(f) herein;
(c) his appointment to the roles alleged in sub-paragraphs 31(g)
and (h) herein in furtherance of the Joint RCM Plan in
connection with the NSBT Project;
(d) the conferring of Mott's Authority and Responsibilities as
alleged in sub-paragraph 31(i) herein;
(e) Charles Mott's attendance at the "NSBT - Financiers
Roadshow" on 10 August 2005 [WLB.003.004.9615];
Part B. North-South Bypass Tunnel
126
(f) Mott's AECOM Australia Actions up to 7 December 2005 as
alleged in paragraph 39 herein and as illustrated in, and by,
the documents listed in paragraphs 1 - 20 of the particulars
thereto; and
(g) his receipt and review of drafts of AECOM Australia's Traffic
Reports on or before 7 December 2005, [ACM.001.035.4680].
2. AECOM Australia's Contract [ACM.002.002.0247].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
73. Further and in the alternative to paragraph 72 herein, by no later than 7 December 2005,
before any NSBT Project Bid was submitted and at all material times thereafter, Charles
Mott ought to have known each of the NSBT Traffic Forecast Facts.
Particulars
AECOM Australia refers to and repeats the particulars to paragraph 72
herein.
Malcolm Coleman's knowledge of NSBT Traffic Forecast Facts
74. By no later than 7 December 2005, before any NSBT Project Bid, and at all material
times thereafter, Malcolm Coleman knew:
(a) each of the NSBT Traffic Forecast Facts; or, in the alternative,
(b) each of the following NSBT Traffic Forecast Facts (the following NSBT Traffic
Forecast Facts are hereafter referred to as Coleman's NSBT Traffic Forecast
Facts):
(i) there was competition for the NSBT Concession;
(ii) the Sponsor Clients and, or in the alternative, related entities thereof
would earn substantial revenues, and were likely to earn or, at least, had
the potential to earn, substantial profits, if, but only if, the NSBT Project
Bid was successful;
(iii) future traffic volumes on the future road network of a large and rapidly
growing city depended upon many factors, particularly future population
and employment demographics and traffic and congestion levels on the
road network, taking account of various contingent future changes to the
city and its road network;
(iv) future traffic volumes on the future road network of Brisbane after 2005
particularly depended upon the factors identified in sub-paragraph (iii)
above;
(v) the types of, and bases for, the forecasts commissioned, the uses to
which the forecasts were to be put and the time and budget allowed for
AECOM Australia's NSBT Commission, and that each of these was
relevant to the outcomes of AECOM Australia's NSBT Work;
(vi) AECOM Australia's NSBT Work:
Part B. North-South Bypass Tunnel
127
(A) necessarily relied upon a complex set of data inputs and
assumptions;
(B) was otherwise complex; and
(C) was not a precise science;
(vii) the material choices and judgements which had been made as to material
data inputs and assumptions in AECOM Australia's NSBT Work;
(viii) NSBT traffic volumes may not grow at the rate and, or in the alternative,
times projected;
(ix) AECOM Australia could not, and did not, guarantee that NSBT traffic
volumes would grow at the rate and, or in the alternative, times projected
or at all, or would reach, stay at, or not fall from any particular level;
(x) AECOM Australia could not, and did not, guarantee that all, or necessarily
any, of the estimates and assumptions upon which AECOM Australia's
NSBT Work was performed would, in fact, be and, or in the alternative,
continue to be, correct, accurate or appropriate, or that projected future
NSBT traffic volumes or other NSBT Project outcomes would be
achieved;
(xi) AECOM Australia's projections of future NSBT traffic volumes would only
be illustrative of the outcomes derived from modelling a given set of
instructions, assumptions and inputs and may be materially affected by
changes in economic and other circumstances, may not be achieved and,
or in the alternative, may not prove to be correct;
(xii) traffic forecasting and traffic forecasts are subject to obvious risks,
inherent risks and intrinsic uncertainties, especially in respect of what is,
or is believed to be, a large and rapidly growing city;
(xiii) AECOM Australia's NSBT traffic forecasting was subject to obvious risks,
inherent risks and intrinsic uncertainties, especially in respect of what
was, or, in the alternative, was reasonably believed to be, a large and
rapidly growing city such as Brisbane;
(xiv) traffic modelling process and methodology, from and by which traffic
forecasts are derived, necessarily involve various steps, assumptions and
other inputs, many of which are interdependent;
(xv) further to sub-paragraph (xiv) above, traffic modelling process and
methodology, from and by which traffic forecasts are derived may involve
the following steps, assumptions and other inputs, all or, in the alternative,
many, of which are interdependent:
(A) traffic count and journey time surveys;
(B) stated and revealed preference or other consumer surveys;
(C) estimates of road trips taken;
(D) assumptions as to trip purposes;
(E) estimates and assumptions pertaining to economic conditions,
population growth, employment, land use and regional economic
development;
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128
(F) estimates and forecasts of trip origins and trip destinations and
their distributions;
(G) data assessment;
(H) assumptions as to the perceived benefits and drawbacks of
different routes and driver response to tolls under different travel
time scenarios and different traffic and travel cost conditions;
(I) assumptions as to network speeds and capacity;
(J) toll model development;
(K) trip assignment;
(L) model calibration and validation;
(M) Expansion Factors;
(N) Annualisation Factors;
(O) base and future year estimates of traffic and travel time; and
(P) assumptions in relation to government and council plans for
roadwork development;
(xvi) AECOM Australia's NSBT traffic forecasting methodology involved various
steps, assumptions and other inputs, all or, in the alternative, many of
which were interdependent;
(xvii) further to sub-paragraph (xvi) above, AECOM Australia's NSBT traffic
forecasting methodology involved the steps, assumptions or other inputs
set out in sub-paragraph (xv) above;
(xviii) the material choices and judgements which had been made, within
AECOM Australia's traffic forecasting methodology, as to the steps,
assumptions or other inputs set out in sub-paragraph (xv) above;
(xix) assumptions and forecasts pertaining to population, population growth or
decline, employment, land use, economic development and trip
generation were all relevant to, and important in, forecasting future NSBT
traffic volumes;
(xx) population, population growth or decline, employment, land use, economic
development and trip generation were all relevant to, and had a material
effect, upon growth estimates and future NSBT traffic volumes;
(xxi) actual future NSBT traffic volumes would, or could, be affected, both
directly and indirectly, by numerous factors, many of which were unable to
be predicted by either AECOM Australia or the RCM Consortium;
(xxii) NSBT revenue, NSBT profitability, the ability of the Non-Tolling RCM
Proceedings Applicants and any other RCM SPV to pay their respective
debts, and returns to investors, were all materially influenced by how
many vehicles used the NSBT in the future;
(xxiii) any of, or any combination of, the following factors could affect actual
future NSBT traffic volumes:
(A) economic developments;
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129
(B) demographic and economic conditions;
(C) further to sub-paragraph (B) above, inflation, upward movements
in relevant consumer price indexes, population growth, interest
rates and taxation;
(D) the pace, nature and locations of population, employment or
economic growth (or decline) in Brisbane;
(E) industrial and residential shifts in the areas that the NSBT would,
or might, service;
(F) general traffic levels in the relevant area and on routes to and from
the NSBT;
(G) trip distribution;
(H) future network changes;
(I) the planned and possible future capacity of the NSBT and the
relevant surrounding network;
(J) the occurrence and timing of other road projects;
(K) further to sub-paragraph (J) above, the timing of the Gateway
Bridge, Airport Link and Hale Street Bridge projects;
(L) any failure to make anticipated or assumed network changes;
(M) further to sub-paragraph (L) above, any failure to proceed with the
scheduled introduction of a T3 lane on the Story Bridge;
(N) problems which might be experienced in integrating the NSBT into
the road network;
(O) the fact, or possibility, of additional and, or in the alternative,
unexpected roadway alternatives;
(P) the quality and proximity of alternative roads and other transport
infrastructure;
(Q) changing travel patterns and habits;
(R) toll rates;
(S) the penetration of e-tolls into the marketplace;
(T) drivers' willingness to pay tolls;
(U) whether the benefits offered by the NSBT (including travel time
savings) were considered by drivers to be worth the toll payment;
(V) traffic levels and congestion in the relevant areas and on routes to
and from the NSBT;
(W) the capacity of the NSBT and its feeder and competing roads;
and, or in the alternative,
(X) traffic demand variability at different times of the day, week and
year;
Part B. North-South Bypass Tunnel
130
(xxiv) the material choices and judgements which had been made, within
AECOM Australia's NSBT traffic forecasting methodology, as to the
matters set out in sub-paragraph (xxiii) above;
(xxv) unanticipated, materially or significantly lower consumer confidence and,
or in the alternative, disposable incomes and, or in the alternative, a
sudden, sharp, material and enduring decline in consumer spending
would have a material and compounding, adverse effect on actual NSBT
traffic compared to forecast traffic;
(xxvi) an unanticipated recession or material local, national or global economic
downturn(s) or crises would have a material and compounding adverse
effect on actual NSBT traffic compared to forecast traffic;
(xxvii) an abnormal level of growth and, or in the alternative, abnormal volatility
in fuel prices would, or may, have an adverse effect on actual NSBT traffic
compared to forecast traffic;
(xxviii) the proximity and quality of alternative roads and competing transport
infrastructure was relevant to, and would impact, actual NSBT traffic
volumes;
(xxix) the material choices and judgements which had been made, as to
alternative roads and competing transport infrastructure and the impact of
those choice and judgements on AECOM Australia's NSBT traffic
forecasting;
(xxx) existing and future government plans and policies would, or may, have a
potentially adverse effect on actual NSBT traffic compared to forecast
traffic;
(xxxi) materially or significantly increased public transport usage (either, or both,
in absolute terms and relative to private vehicle usage), would have a
material and compounding, adverse effect on actual NSBT traffic
compared to forecast traffic;
(xxxii) material or significant adverse changes in network configuration
compared to forecast network configuration would have a material and
compounding adverse effect on actual NSBT traffic compared to forecast
traffic;
(xxxiii) a material and widespread reluctance, or a material decline, in driver
willingness to pay tolls, would have a material adverse effect on actual
NSBT traffic compared to forecast traffic;
(xxxiv) unanticipated material declines in driver capacity to pay tolls would have a
material adverse effect on actual NSBT traffic compared to forecast traffic;
(xxxv) unanticipated lower network congestion would have an adverse and
compounding effect on actual NSBT traffic compared to forecast traffic;
(xxxvi) the anticipated or possible rate of future improvements in vehicle
technology was a material factor relevant to the assessment of road
capacity for the NSBT and its feeder and competitor roads;
(xxxvii) the material choices and judgements which had been made as to possible
rate of future improvements in vehicle technology insofar as relevant to
capacity;
Part B. North-South Bypass Tunnel
131
(xxxviii) the available choices as between forecasting NSBT traffic by reference to
AM Peak traffic volumes or, instead, by reference to weekday all-hour or
other multi-period traffic volumes and the judgements to be made, and
which had been made, in relation thereto;
(xxxix) that using Expansion Factors to forecast future AAWT for the NSBT was
not risk-free;
(xl) the risks involved in using, the Expansion Factors used in AECOM
Australia's NSBT traffic forecasting;
(xli) how and why those Expansion Factors were chosen and used;
(xlii) the need for Annualisation Factors to predict future annual NSBT traffic
demand based upon estimated future AAWT;
(xliii) that using Annualisation Factors to forecast future AAWT for the NSBT
was not risk-free;
(xliv) how and why those Annualisation Factors were chosen and used;
(xlv) there were inherent limitations in using data regarding other roads as a
point of comparison and guidance for forecasting future NSBT traffic
volumes;
(xlvi) the uncertainties and risks in traffic forecasting inevitably increased as the
forecast period lengthened;
(xlvii) materially or significantly lower than assumed, or forecast, population,
population growth, employment, land use, economic development and, or
in the alternative, trip generation would have a material and compounding
adverse effect on actual NSBT traffic compared to forecast traffic;
(xlviii) material or significant variation in the location of assumed, or forecast,
population, population growth, employment, land use, economic
development and, or in the alternative, trip generation would, or may,
have a material compounding adverse effect on actual NSBT traffic
compared to forecast traffic;
(xlix) AECOM Australia's NSBT traffic forecasting necessarily required, and
relied upon, NIEIR's Growth Forecasts;
(l) the scope, limitations and effect of NIEIR's Growth Forecasts;
(li) there was an obvious and inherent risk that actual future traffic volumes in
the NSBT would be materially below AECOM Australia's NSBT traffic
forecasts, through no fault of AECOM Australia, if NIEIR's Growth
Forecasts were to prove to be materially inaccurate for any reason;
(lii) further to sub-paragraph (li) above, that there was an obvious and
inherent risk that actual future traffic volumes in the NSBT would be
materially below AECOM Australia's NSBT traffic forecasts, through no
fault of AECOM Australia, if NIEIR's Growth Forecasts were to prove to be
materially inaccurate because:
(A) actual economic growth was lower and, or in the alternative,
slower than forecast or assumed in NIEIR's Growth Forecasts,
generally or in zones of particular relevance to the NSBT;
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132
(B) actual population, and, or in the alternative, actual population
growth, were different, than forecast, or assumed, in NIEIR's
Growth Forecasts, generally or in zones of particular relevance to
the NSBT;
(C) actual employment and, or in the alternative, actual employment
growth, were lower than forecast, or assumed, in NIEIR's Growth
Forecasts, generally or in zones of particular relevance to the
NSBT;
(D) there were unanticipated increases in actual unemployment which
NIEIR had not forecast or taken into account in NIEIR's Growth
Forecasts, generally or in zones of particular relevance to the
NSBT;
(E) actual wages and, or in the alternative, actual wages growth, were
lower than was forecast, or assumed, in NIEIR's Growth
Forecasts, generally or in zones of particular relevance to the
NSBT;
(F) unplanned or unexpected changes in public transport policy
negatively impacted the trip matrices produced by NIEIR by
making public transport more attractive; and, or in the alternative,
(G) trip generation was lower than was forecast, or assumed, in
NIEIR's Growth Forecasts, generally or in zones of particular
relevance to the NSBT;
(liii) actual future NSBT traffic volumes would be significantly lower, and the
NSBT Project would or may prove to be unsuccessful or financially
disastrous, through no fault of AECOM Australia, if one or more of the
events set out in sub-paragraph (lii) above occurred to a significant extent;
(liv) debt facilities may not be available if the NSBT Project performed poorly;
(lv) an investment in the NSBT would be subject to investment risk;
(lvi) further to sub-paragraph (lv) above, an investment in the NSBT would be
subject to possible loss of capital invested and repayment of capital was
not guaranteed;
(lvii) there were obvious and inherent risks that the NSBT Project may prove to
be unsuccessful or financially disastrous if there were adverse external
developments;
(lviii) further to sub-paragraph (lvii) above, there were obvious and inherent
risks that the NSBT Project may prove to be unsuccessful or financially
disastrous, if there were adverse external developments which were:
(A) not reasonably capable of being predicted by AECOM Australia at
the time AECOM Australia's NSBT traffic forecasts were made,
within the context of AECOM Australia's NSBT Commission; or, in
the alternative,
(B) were not required to be assumed or predicted by the RCM
Consortium;
Part B. North-South Bypass Tunnel
133
(lix) in undertaking AECOM Australia's NSBT Work, AECOM Australia would
be, and was, dependent upon the availability of relevant and reliable
information and instructions, information and feedback given by or on
behalf of the RCM Consortium to AECOM Australia in connection with, or
for the purposes of, AECOM Australia's NSBT Commission;
(lx) the nature, scope and effect of the material risks that would, or might,
materially affect AECOM Australia's NSBT traffic forecasts;
(lxi) the nature, scope and effect of the material risks that AECOM Australia
had taken into account in arriving at AECOM Australia's NSBT traffic
forecasts within the context of AECOM Australia's NSBT Commission;
(lxii) the explanations, disclosures, qualifications, exclusions, disclaimers and
other limitations contained in drafts of AECOM Australia's traffic reports
prior to 7 December 2005 and in the December 2005 Traffic Reports; and
(lxiii) the extent to which AECOM Australia's NSBT traffic forecasts were, or
were capable of being reasonably regarded as, conservative.
Particulars
1. Malcolm Coleman's knowledge of each of the NSBT Traffic Forecast
Facts or in the alternative Coleman's NSBT Traffic Forecast Facts,
arose, or in the alternative, is to be inferred from:
(a) his experience as alleged in sub-paragraphs 32(b) and (c)
herein;
(b) his appointment to the roles alleged in sub-paragraphs 32(d)
and (e) herein in furtherance of the Joint RCM Plan in
connection with the NSBT Project;
(c) the conferring of Coleman's Authority and Responsibilities as
alleged in sub-paragraph 32(f) herein;
(d) Coleman's AECOM Australia Actions up to 7 December 2005
as alleged in paragraph 40 herein and as illustrated in, and by,
the documents listed in paragraphs 1 - 12 of the particulars
thereto;
(e) his receipt and review of drafts of AECOM Australia's Traffic
Reports on or before 7 December 2005, [ACM.001.035.4680];
and
(f) his receipt of the "Traffic Model Assumptions Book"
[RCG.003.001.0565], which was included with the NSBT
Project Bid signed by Peter Hicks and Malcolm Coleman and
submitted to the BCC on 7 December 2005.
2. AECOM Australia's Contract [ACM.002.002.0247].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
Part B. North-South Bypass Tunnel
134
75. Further and in the alternative to paragraph 74 herein, by no later than 7 December 2005
and before any NSBT Project Bid was submitted, and at all material times thereafter,
Malcolm Coleman ought to have known:
(a) each of the NSBT Traffic Forecast Facts; or, in the alternative,
(b) each of Coleman's NSBT Traffic Forecast Facts.
Particulars
AECOM Australia refers to and repeats the particulars to paragraph 74
herein.
NSBT Project Bid
76. On or about 7 December 2005, RCM Operations and RCM Asset submitted the NSBT
Project Bid to the BCC for, and in respect of, the NSBT Concession, in accordance with
the instructions and wishes of the Sponsor Clients and in furtherance of the Joint RCM
Plan.
Revised NSBT Project Bid
77. On or about 10 April 2006, RCM Operations and RCM Asset submitted a revised NSBT
Project Bid (the Revised NSBT Project Bid) to the BCC for, and in respect of, the NSBT
Concession in accordance with the instructions and wishes of the Sponsor Clients and in
furtherance of the Joint RCM Plan.
Award of NSBT Concession
78. On or about 27 April 2006, RCM Operations and RCM Asset were awarded the NSBT
Concession.
NSBT Project Funding
79. The NSBT Project had a projected total cost of approximately $2.88 billion, which was to
be financed as follows:
(a) approximately $1.336 billion in long-term secured debt to be provided by a
banking syndicate (the RCM Banking Syndicate);
(b) approximately $503 million to be advanced by the RCM Banking Syndicate on a
short-term basis to be repaid from $503 million to be received from the BCC for
specified construction works following the completion of the NSBT Project;
(c) approximately $700 million to be raised through the RCM IPO;
(d) approximately $186 million to be raised through a dividend reinvestment program;
and
(e) approximately $155 million to be raised through a deferred equity tranche to be
taken up by Leighton Motorway Investments Pty Ltd (a related company of
Leighton) and Bilfinger Berger BOT GmbH (a related company of both Bilfinger
and Baulderstone).
PDS Disclosure Obligation
80. At all material times:
(a) the RCM Consortium or, in the alternative, each of the Sponsor Clients, RCMML
and RCM Services;
Part B. North-South Bypass Tunnel
135
(b) Peter Hicks; and
(c) Mallesons,
each knew, and understood or, in the alternative, ought to have known and understood,
that RCMML was prohibited from offering stapled units in the RCM Trusts (the RCM
Stapled Units) under the PDS if there was, either, a misleading or deceptive statement
in the PDS, or an omission from the PDS of any material required to be included in the
PDS under the Corporations Act,
(PDS Disclosure Obligation).
Mallesons' RCM IPO Actions
81. At all material times:
(a) Mallesons acted for the RCM Consortium or, in the alternative, RCMML and RCM
Services, and provided legal advice and other legal services, in connection with:
(i) due diligence required for the preparation of the PDS and the RCM IPO;
(ii) the role and actions of the DDC and TDDSC;
(iii) the preparation, form and contents of the PDS;
(iv) whether the PDS complied with the Corporations Act;
(v) whether the PDS was misleading or deceptive or likely to mislead or
deceive;
(vi) whether there were material omissions from the PDS;
(vii) the RCM IPO; and
(viii) all other legal aspects of the NSBT Project;
(b) two Mallesons partners were, and acted as, members of the DDC;
(c) other Mallesons partners and, or in the alternative, lawyers employed by
Mallesons, attended DDC meetings and provided legal advice to the DDC;
(d) Mallesons partners and, or in the alternative, lawyers employed by Mallesons,
attended TDDSC meetings and provided legal advice to or for the TDDSC;
(e) between no later than in or about December 2005 and 13 June 2006, Mallesons:
(i) assumed responsibility for the drafting of, and drafted, at least the
following sections of the PDS (Mallesons' PDS Preparation):
(A) section 5 (Corporate Structure and Taxation);
(B) section 6 (Board and Management);
(C) section 8 (Risk Factors);
(D) section 10 (Additional Information); and
(E) section 11 (Glossary); and
(ii) advised that, or, in the alternative advised that they believed on
reasonable grounds that:
Part B. North-South Bypass Tunnel
136
(A) the PDS complied with Part 7.9 of the Corporations Act;
(B) no statement in the PDS was misleading or deceptive; and
(C) there were no omissions of required material from the PDS having
regard to the disclosure requirements of Subdivision C of Division
2 of Part 7.9 of the Corporations Act,
(together, Mallesons' RCM IPO Actions).
Particulars
1. Minutes of the first meeting of the DDC, 5 April 2006,
[RCG.007.001.0073].
2. Minutes of the second meeting of the DDC, 1 May 2006,
[RCG.012.001.0045].
3. Draft minutes of the third meeting of the DDC, 12 May 2006,
[RCG.012.002.0007].
4. Minutes of the fourth meeting of the DDC, 13 June 2006,
[RCG.012.002.0002].
5. Minutes of the fifth meeting of the DDC, 31 July 2006,
[RCG.012.003.0003].
6. Minutes of the sixth meeting of the DDC, 3 August 2006,
[RCG.012.003.0006].
7. David Storr and John Humphrey (the Two Mallesons DDC
Members) were Mallesons partners and members of the DDC.
8. Leisel Moorhead, Karen Thomson, Andrew Chew, Dominic
Bortoluzzi, Frank Coldwell, David Eliakim were Mallesons partners
or employees who attended one or more DDC meetings.
9. RCM- Due Diligence/PDS Work Plan [RCG.012.001.0051].
10. Draft PDS as at or on or about, 10 May 2006
[RCG.012.001.0277].
11. Email from Duncan Olde to David Storr, John Humphrey and
others sent at 8.12pm on 10 May 2006 entitled "RCM - DDC
Meeting # 3", [RCG.008.001.0152].
12. Email from Duncan Olde to David Storr, John Humphrey and
others sent at 7.08pm on 1 June 2006 entitled "RCM - DDC
Meeting # 4", [RCG.008.001.0081].
13. Letter from Mallesons to the directors, RCM Services, the
directors, RCMML and the members of the DDC and "the entities
they represent" dated 13 June 2006 [RCG.006.086.0185].
14. PDS at page 136, [RCG.001.008.6127].
15. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
Part B. North-South Bypass Tunnel
137
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project and documents currently the subject
of claims for privilege against production.
RCM IPO DDC
82. On or before 5 April 2006, the DDC was established, and convened, for the purposes of
the RCM IPO, to:
(a) co-ordinate and oversee the implementation of the due diligence process
established, by or on behalf of RCMML, in connection with the preparation of the
PDS;
(b) consider all expert reports prepared for, or in respect of, the NSBT Project and
determine whether each report should be included in the PDS; and
(c) verify the PDS,
(DDC Actions).
83. Between in or about 5 April 2006 and 3 August 2006, the DDC, including Robert Morris,
Peter Hicks and Charles Mott and the Two Mallesons DDC Members, undertook DDC
Actions.
Particulars
1. The DDC met on 5 April 2006. Minutes of this meeting relevantly
record the attendance of each of Robert Morris, Peter Hicks and
Charles Mott and the Two Mallesons DDC Members
[RCG.012.001.0003].
2. The DDC met on 1 May 2006. Minutes of this meeting relevantly
record the attendance of each of Robert Morris, Peter Hicks and
Charles Mott and David Storr [RCG.012.001.0045].
3. The DDC met on 12 May 2006. The agenda is relevantly
addressed to each of Robert Morris, Peter Hicks and Charles
Mott, and includes a "Verification Pack" which has been withheld
from AECOM Australia on the basis of a claim for privilege
[RCG.012.001.0386]. Minutes of this meeting relevantly record the
attendance of each of Robert Morris, Peter Hicks and Charles
Mott and the Two Mallesons DDC Members [RCG.012.001.0069].
4. It appears that a draft of the May 2006 Traffic Report was
circulated to the DDC on 8 May 2006 [ACM.001.049.4469].
5. The DDC met on 13 June 2006. The minutes of this meeting
relevantly record the attendance of each of Robert Morris, Peter
Hicks and Charles Mott and the Two Mallesons DDC Members
[RCG.005.007.0001].
6. The DDC met on 31 July 2006. The minutes of this meeting
relevantly record the attendance of each of Robert Morris, Peter
Hicks and Charles Mott and the Two Mallesons DDC Members
[RCG.012.003.0003].
Part B. North-South Bypass Tunnel
138
7. The DDC met on 3 August 2006. The minutes of this meeting
relevantly record the attendance of each of Robert Morris, Peter
Hicks and Charles Mott and the Two Mallesons DDC Members
[RCG.012.003.0006].
8. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project and documents currently the subject
of claims for privilege against production.
RCM IPO TDDSC
84. On or about 5 April 2006, the DDC resolved to establish the TDDSC as a DDC traffic
sub-committee under the leadership of Peter Hicks, and with members which included
Robert Morris, to:
(a) review the May 2006 Traffic Report and traffic and traffic forecasting issues;
(b) identify NSBT Project and RCM IPO traffic related risks and determine how those
risks should be dealt with;
(c) identify key issues and consider whether disclosure of each key issue was
required in the PDS or otherwise;
(d) produce a "Key Issues Report" which identified issues, provided commentary and
made recommendations as to whether and, if so, to what extent, certain matters
must be disclosed in the PDS (the TDDSC Key Issues Report); and
(e) advise the DDC of the findings of the TDDSC,
(the TDDSC Actions).
Particulars
1. Minutes of the first meeting of the DDC, 5 April 2006, items 4.2
and 4.4 [RCG.012.001.0003].
2. Minutes of the second meeting of the DDC, 1 May 2006, item 4.2
[RCG.012.001.0045].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
85. At all material times up to on or about 11 May 2006, but before 24 May 2006, each of
Peter Hicks and Robert Morris participated in meetings of the TDDSC chaired by Peter
Hicks and, in the course thereof, reviewed, and discussed the May 2006 Traffic Report,
traffic and traffic forecasting issues and the TDDSC Key Issues Report and otherwise
undertook TDDSC Actions.
Part B. North-South Bypass Tunnel
139
Particulars
1. The TDDSC met on 4 May 2006. The agenda for the meeting
identifies the invited attendees as including Peter Hicks and
Robert Morris [ACM.001.033.7389].
2. The TDDSC met again on 8 May 2006. The agenda for the
meeting identifies the invited attendees as including Peter Hicks
and Robert Morris and was received by each of them together with
a draft of the TDDSC Key Issues Report dated 4 May 2006,
[ACM.001.033.7417] and attachments [ACM.001.033.7418] and
[ACM.001.033.7419].
3. A further draft of the TDDSC Key Issues Report was circulated
between the members of the TDDSC by email from Richard
Jagger to, amongst others, Peter Hicks and Robert Morris, sent at
8:55pm on 10 May 2006, entitled "Traffic DDSC – latest key issues
report", [ACM.001.033.7423] attaching a draft of the TDDSC Key
Issues Report [ACM.001.033.7424].
4. The TDDSC met again on 11 May 2006. The agenda for the
meeting identifies the invited attendees as including Peter Hicks
and Robert Morris and was received by each of them together with
a draft of the TDDSC Key Issues Report dated 11 May 2006,
[ACM.001.091.9645] and attachments [ACM.001.091.9646] and
[ACM.001.091.9647].
5. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
86. The TDDSC Key Issues Report identified and discussed recommendations to the DDC in
respect of the following traffic related issues or matters:
(a) model and trip table development;
(b) current and future road network and capacity assumptions;
(c) toll choice probability;
(d) calibration and validation of base year model;
(e) economic assumptions;
(f) ramp up assumptions;
(g) Expansion Factor assumptions;
(h) LCV and HCV forecast assumptions;
(i) traffic model sensitivities;
(j) full electronic tolling assumptions;
(k) the HTS Report;
Part B. North-South Bypass Tunnel
140
(l) "confidence in key outcomes";
(m) reliance on traffic report;
(n) "Low Case vs Base Case"; and
(o) "Why NSBT is not similar to the Cross City Tunnel".
Particulars
1. AECOM Australia refers to and repeats paragraphs 2 - 4 of the
particulars to paragraph 85 herein.
2. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
87. On or about 13 June 2006, the DDC considered and accepted the TDDSC Key Issues
Report (as updated)
Particulars
1. Minutes of the fourth meeting of the DDC, 13 June 2006,
[RCG.005.007.0001].
2. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
RCM Documents
88. On or about 16 May 2006, at contemporaneous meetings of the board of directors of
each of the Non-Tolling RCM Proceedings Applicants or, in the alternative, each of RCM
Operations, RCM Operations 2, RCM Finance, RCM Asset and RCM Services, Peter
Hicks, Robert Morris and Charles Mott, being the directors in attendance:
(a) noted that each of those Non-Tolling RCM Proceedings Applicants was a
member of the "Consortium" which has been successful in its bid for the NSBT
Concession; and
(b) resolved that each of those Non-Tolling RCM Proceedings Applicants or, in the
alternative, each of RCM Operations, RCM Operations 2, RCM Finance, RCM
Asset and RCM Services, execute and deliver a suite of documents with the BCC
and Sponsor Clients, amongst other parties, in connection with the NSBT Project
(RCM Documents).
Particulars
1. The meetings took place at or about 2.00pm on 16 May 2006 at Level
6, 88 Phillip Street, Sydney.
2. Minutes of meeting of Board of Directors of RCM Operations
[RCG.006.124.0001].
Part B. North-South Bypass Tunnel
141
3. Minutes of meeting of Board of Directors of RCM Operations 2
[RCG.006.093.0071].
4. Minutes of meeting of Board of Directors of RCM Finance
[RCG.006.035.0197].
5. Minutes of meeting of Board of Directors of RCM Asset
[RCG.006.124.0073].
6. Minutes of meeting of Board of Directors of RCM Services
[RCG.006.093.0115].
7. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
89. Each of the resolutions alleged in paragraph 88(b) herein was made by the board of
directors of each of the Non-Tolling RCM Proceedings Applicants or, in the alternative,
each of RCM Operations, RCM Operations 2, RCM Finance, RCM Asset and RCM
Services:
(a) at a time when they were accustomed to acting in accordance with the Sponsor
Clients' instructions and, or in the alternative, wishes, in furtherance of the Joint
RCM Plan; and
(b) in accordance with the Sponsor Clients' instructions and, or in the alternative, the
Sponsor Clients' wishes in furtherance of the Joint RCM Plan.
Particulars
1. As to sub-paragraph (a) above, AECOM Australia refers to and
repeats paragraphs 66 and 67(a)(iii) herein and the particulars thereto.
2. As to sub-paragraph (b) above, it is to be inferred from, or by reason
of, the following matters:
(a) the existence of the Joint RCM Plan and AECOM Australia
refers to and repeats paragraph 5 herein and the particulars
thereto;
(b) the fact that the board of directors of each of the Non-Tolling
RCM Proceedings Applicants were accustomed to acting in
accordance with the Sponsor Clients' instructions and, or in
the alternative, wishes in furtherance of the Joint RCM Plan
and AECOM Australia refers to and repeats paragraphs 66
and 67(a)(iii) herein and the particulars thereto;
(c) the tender process agreed, and implemented, by the RCM
Consortium in respect of NSBT Project Bids required prior
sign-off by the Sponsor Clients before the submission of any
NSBT Project Bid to the BCC and entry into the RCM
Documents was only possible, necessary, and undertaken
because of the awarding of the NSBT Concession upon
acceptance of the Revised NSBT Project Bid approved by the
Sponsor Clients;
Part B. North-South Bypass Tunnel
142
(d) the Joint RCM Plan contemplated, and the RCM Consortium
knew, that a successful bidder for the NSBT Concession
would be required to enter into contracts of the same or similar
nature as the RCM Documents in furtherance of the NSBT
Project and responsibility for project structuring, debt and
equity procurement and the negotiation and completion of
documentation for the NSBT Project was allocated to and, or
in the alternative, assumed, and undertaken, by the Sponsor
Clients and AECOM Australia refers to and repeats paragraph
3 of the particulars to paragraph 5 herein; and
(e) the RCM Documents included or, in the alternative, were
executed and delivered together with, documents executed
and, or in the alternative, delivered by one or more of the
Sponsor Clients as follows:
(i) Leighton and an entity related to Baulderstone, being
the documents known as the D&C Side Deed and the
D&C Contract;
(ii) Leighton and an entity related to Bilfinger, being the
documents known as the O&M Side Deed and the
O&M Consent Deed;
(iii) Leighton and an entity related to Baulderstone and
Bilfinger, being the document known as the D&C
Consent Deed; and
(iv) all of the Sponsor Clients, being the document known
as the Sponsor Support Deed [RCG.012.009.0020]
which included the recital that "The Sponsors have
developed the Project, and have established the
RiverCity Motorway Group that will be entering into the
Project Documents and intend to proceed to Financial
Close".
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
90. On or about 24 May 2006 certain of the Non-Tolling RCM Proceedings Applicants
entered into and delivered RCM Documents.
Instruction to prepare Summary Letter summarising Base Case
91. By no later than in or about November 2005, the RCM Consortium or, in the alternative,
the Sponsor Clients, RCM Services and RCMML, through Peter Hicks, requested, and
instructed, AECOM Australia to provide a letter summarising AECOM Australia’s traffic
forecasting methodology, its forecasts for the Base Case and certain other matters for
inclusion in the PDS.
Hicks' PDS Action
92. At all material times, Peter Hicks, acting for the RCM Consortium or, in the alternative,
the Sponsor Clients, RCMML and RCM Services:
Part B. North-South Bypass Tunnel
143
(a) was actively involved in:
(i) the drafting and approval of the PDS; and
(ii) giving instructions, information, inputs and feedback to AECOM Australia
in connection with the preparation of AECOM Australia's Consented
Material; and
(b) made, and implemented, each of the following decisions (together, the PDS
Decisions):
(i) AECOM Australia's Consented Material would appear in the PDS in the
form it actually did and not otherwise;
(ii) neither AECOM Australia's Consented Material nor any other part of the
PDS would include:
(A) any detailed discussion of, or the actual forecasts prepared by
AECOM Australia in respect of, the Bank Case (referred to in the
Summary Letter as the alternative "Bank" scenario), as had been
proposed and requested by AECOM Australia;
(B) any reference to the percentage by which the Bank Case
forecasts were lower than the Base Case forecasts as had
appeared in earlier draft(s) of the Summary Letter prepared by
AECOM Australia;
(C) additional statements in respect of either the process of, or risks
associated with, AM Peak modelling, or the use of Expansion
Factors and Annualisation Factors (Additional AM Peak
Modelling Statements);
(D) a statement that PB opined that "ideally" AECOM Australia’s base
year model would have extended to an "all day" traffic model
(PB's Ideal Circumstances Statement);
(E) a statement that AECOM Australia's Earlier EIS Forecasts had
been prepared using an “all day” traffic model (the All Day
Statement);
(F) either AECOM Australia's Earlier EIS Forecasts or any reference
to the percentage by which the Forecasts were higher than
AECOM Australia's Earlier EIS Forecasts (together, AECOM
Australia's Earlier EIS Forecasts Statements);
(G) reference to the performance of either the CCT or the M7
(CCT/M7 Statements);
(H) a statement that “the feeder routes” for the NSBT were “not
constrained by capacity” in the off-peak period in 2005 (the
Feeder Roads 2005 Off-Peak Congestion Statement);
(I) a statement that the traffic forecast prepared by AECOM Australia
for the BCC’s "Feasibility Study and Environmental Impact
Statement" in November 2004 in respect of the Possible NSBT
determined or assumed that the notional daily capacity of the
NSBT was 95,000 cars (the 2004 EIS Possible NSBT Notional
Capacity Statement);
Part B. North-South Bypass Tunnel
144
(J) a reference to an estimate made in connection with AECOM
Australia's Earlier EIS Forecasts that approximately 40% of traffic
using Story Bridge, William Jolly Bridge or Captain Cook Bridge
(the Three EIS Bridges) were “through trips” (the 2005 Three EIS
Bridges Through Trips Statement);
(K) a statement that the "road routes competing with the …[NSBT] …
included the Inner City Bypass" (the Inner City Bypass
Statement);
(L) any additional statements explaining that the Forecasts were
prepared as part of a competitive bid to win the NSBT
Concession; or
(M) any statement concerning the AECOM Australia's Retainer
Discount,
(together, the Omitted Statements);
(iii) the PDS would not include the May 2006 Traffic Report and a copy of the
May 2006 Traffic Report would not be made available to potential
acquirers of RCM Stapled Units (Potential RCM Stapled Unit Acquirers)
either:
(A) in the PDS; or
(B) on the "RiverCity Motorway" website, as proposed and requested
by AECOM Australia; or
(C) otherwise,
(Hicks' PDS Actions).
Particulars
1. As to sub-paragraph (a)(i) above, Peter Hicks' involvement in the
drafting and approval of the PDS is illustrated in, and by, the following
documents:
(a) Email from Sandy Thomas to Alan Broadbent sent at 12.50pm
on 31 October 2005 entitled “ConnectEast Product Disclosure
Statement of October 2004”, [ACM.001.038.3602] and
attachment [ACM.001.038.3603].
(b) Email from Peter Hicks to Stuart Marks and others sent at
2.04pm on 12 November 2005 entitled “RE: PDS – Updated
Key Themes” [RCG.001.002.0718] and attachment
[RCG.001.002.0720].
(c) Email from Peter Hicks to Stuart Marks sent at 4.38pm on 22
November 2005 entitled “RE: PDS page turn at
3pm”, [ACM.001.038.2839] and attachment
[ACM.001.038.2841].
(d) Email from Peter Hicks to Sandy Thomas sent at 3.54pm on
26 November 2005 entitled “FW: PDS Traffic Report –
Disclaimer”, [ACM.001.038.2579] and attachment
[ACM.001.038.2582].
Part B. North-South Bypass Tunnel
145
(e) AECOM Australia also refers to and repeats paragraphs 82 -
87 above.
2. As to sub-paragraph (a)(ii) above, Peter Hicks' involvement in
giving instructions, information, inputs and feedback to AECOM
Australia in connection with the preparation of AECOM Australia's
Consented Material is illustrated in, and by, the following
documents:
(a) Email from Denis Johnston to Ashley Yelds and Alan
Broadbent, sent at 10:05am on 30 November 2005,
entitled “Re: RE: [Fwd: PDS Traffic Report - AAR Initial
Comments]”, [ACM.001.038.2807].
(b) Email from Ashley Yelds to Peter Hicks sent at 12.13pm
on 30 November 2005 entitled “RE: Traffic Forecast PDS”,
[ACM.001.033.9117] and [ACM.001.033.9121].
(c) Email from Peter Hicks to Ashley Yelds sent at 5.04pm on
30 November 2005 entitled “RE: Traffic Forecast PDS”,
[ACM.001.033.8752] with attachment
[ACM.001.033.8755].
(d) Email from Peter Hicks to Denis Johnston and Ashley
Yelds and copied to others, sent at 10:55am on 1
December 2005, entitled “RE: Traffic Forecast PDS”,
[ACM.001.033.8747].
(e) Email from Denis Johnston to Alan Broadbent, sent at
11:41am on 1 December 2005, entitled “Re: RE: [Fwd:
PDS Traffic Report - AAR Initial Comments]”,
[ACM.001.038.3202].
(f) Email from Alan Broadbent to Stuart Marks cc Peter Hicks
sent at 12.26pm on 1 December 2005 entitled “Revised
text for the Maunsell PDS report”, [ACM.001.038.3235]
with attachment [ACM.001.038.3236].
(g) Email from Jabe Jerram to Peter Hicks and copied to
others, sent at 6:01pm on 1 December 2005, entitled “RE:
Revised text for the Maunsell PDS report”,
[ACM.001.038.3244].
(h) Email from Alan Broadbent to Sandy Thomas, sent at
9:10am on 2 December 2005, entitled “Revised PDS”,
attaching a document entitled “Traffic forecasts for the
North-South Bypass NSBT”, [ACM.001.038.3270] and
attachment [ACM.001.038.3271].
(i) Email from Michael Neal to Peter Hicks, Alan Broadbent
and others sent at 11.07pm on 7 May 2006 entitled “Re:
Investor presentation”, [ACM.001.049.4465].
(j) Email from Peter Hicks to Malcolm Haack and Thao Oakey
sent at 8.28am on 19 May 2006, entitled “RE: PDS clause
re availability of Maunsell report”, [ACM.001.015.3159].
Part B. North-South Bypass Tunnel
146
(k) Email from Thao Oakey to Malcolm Haack sent at
11.52am on 23 May 2006 entitled “RE: Indemnity”
[ACM.001.015.3468] and attachment [ACM.001.015.3473].
(l) Email from Malcolm Haack to Peter Hicks and copied to
others, sent at 5:00pm on 26 May 2006, entitled “NSBT
update”, [ACM.001.015.3050].
(m) Email from Peter Hicks to Alan Broadbent sent at 10.16am
on 29 May 2006 entitled “RE: NSBT – PDS Verification”,
[ACM.001.015.3228].
(n) Email from Peter Hicks to Malcolm Haack sent at 6.01am
on 1 June 2006 entitled “RE: Copy of Final Draft of
Investigating Accountants Report”, [ACM.001.017.3280]
and attachment [ACM.001.017.3284].
(o) Email from Peter Hicks to Malcolm Haack sent at 10.59am
on 1 June 2006 entitled “RE: PDS Summary Letter”,
[ACM.001.015.3143].
3. As to sub-paragraph (b)(i) above:
(a) Email from Thao Oakey to Peter Hicks and others, sent at
9.20am on 20 October 2005 entitled “Sponsor meeting”,
[RCG.001.001.9352].
(b) Email from Malcolm Haack to Peter Hicks and copied to
others, sent at 5:00pm on 26 May 2006, entitled “NSBT
update”, [ACM.001.015.3050].
(c) Email from Sandy Thomas to Alan Broadbent, sent at
3.53pm on 2 May 2006 entitled “ABN comments on
Maunsell letter on section 9 of PDS”, attaching email from
Peter Hicks to Jabe Jerram cc others sent at 1.05am on 2
May 2006 entitled “RE: NSBT PDS”, [ACM.001.038.5682]
with attachment [ACM.001.038.5683] and
[ACM.001.038.5685].
(d) Email from Richard Jagger to Robert Morris, Peter Hicks
and others, sent at 2:31pm on 5 May 2006, entitled "Traffic
DDSC" [ACM.001.111.6657] attaching document entitled
"Traffic Due Diligence Subcommittee: Key Issues Report",
dated 5 May 2006, [ACM.001.111.6658].
(e) Email from Michael Neal to Peter Hicks, Alan Broadbent
and others, sent at 11.07pm on 7 May 2006 entitled “Re:
Investor presentation”, [ACM.001.049.4465].
(f) Email from Richard Jagger to Peter Hicks and others, sent
at 15:51 on 11 May 2006, entitled "Traffic DDSC 11 May
Agenda" attaching the agenda for the Traffic Due Diligence
Subcommittee meeting held on 11 May 2006 and the
Traffic Due Diligence Subcommittee: Key Issues Report,
[ACM.001.091.9645] with attachments
[ACM.001.091.9646] and [ACM.001.091.9647].
Part B. North-South Bypass Tunnel
147
(g) Email from Peter Hicks to Malcolm Haack, sent at 6.01am
on 1 June 2006 entitled “RE: Copy of Final Draft of
Investigating Accountants Report”, [ACM.001.017.3280]
and attachment [ACM.001.017.3284].
(h) Email from Peter Hicks to Malcolm Haack sent at 10.59am
on 1 June 2006 entitled “RE: PDS Summary Letter”,
[ACM.001.015.3143].
4. As to sub-paragraph (b)(ii)(A) above:
(a) Email from Denis Johnston to Ashley Yelds and Alan
Broadbent dated 30 November 2005 sent at 10.05am
entitled "RE: [Fwd: PDS Traffic Report – AAR Initial
Comments]", [ACM.001.038.2807].
(b) Email from Denis Johnston to Alan Broadbent, sent at
11:41am on 1 December 2005, entitled “Re: RE: [Fwd:
PDS Traffic Report - AAR Initial Comments]”,
[ACM.001.038.3202].
(c) Email from Peter Hicks to Denis Johnston and Ashley
Yelds and copied to others, sent at 10:55am on 1
December 2005, entitled “RE: Traffic Forecast PDS”,
[ACM.001.033.8747].
(d) Email from Jabe Jerram to Peter Hicks and copied to
others, sent at 6:01pm on 1 December 2005, entitled “RE:
Revised text for the Maunsell PDS report”,
[ACM.001.038.3244].
(e) Email from Sandy Thomas to Alan Broadbent, sent at
3.53pm on 2 May 2006 entitled “ABN comments on
Maunsell letter on section 9 of PDS”, attaching email from
Peter Hicks to Jabe Jerram copied to others, sent at
1.05am on 2 May 2006 entitled “RE: NSBT PDS”,
[ACM.001.038.5682] and attachments
[ACM.001.038.5683] and [ACM.001.038.5685].
(f) Email from Richard Jagger to Peter Hicks and others, sent
at 2.31pm on 5 May 2006 entitled “Traffic DDSC”,
attaching document entitled "Draft Traffic Due Diligence
Subcommittee Key Issues Report", dated 4 May 2006,
[ACM.001.111.6657] with attachment
[ACM.001.111.6658].
(g) Email from Michael Neal to Peter Hicks, Alan Broadbent
and others, sent at 11.07pm on 7 May 2006 entitled “Re:
Investor presentation”, [ACM.001.049.4465].
(h) Email from Richard Jagger to Peter Hicks and others, sent
at 15:51 on 11 May 2006, entitled "Traffic DDSC 11 May
Agenda" attaching the agenda for the Traffic Due Diligence
Subcommittee meeting held on 11 May 2006 and the
Traffic Due Diligence Subcommittee: Key Issues Report,
[ACM.001.091.9645] with attachments
[ACM.001.091.9646] and [ACM.001.091.9647].
Part B. North-South Bypass Tunnel
148
(i) Minutes of the Due Diligence Committee Meeting No. 3
dated 12 May 2006, [RCG.005.005.0080].
(j) Email from Peter Hicks to Malcolm Haack sent at 6.01am
on 1 June 2006 entitled “RE: Copy of Final Draft of
Investigating Accountants Report”, [ACM.001.017.3280]
and [ACM.001.017.3284].
(k) Email from Peter Hicks to Malcolm Haack, sent at
10.59am on 1 June 2006 entitled “RE: PDS Summary
Letter”, [ACM.001.015.3143].
5. As to sub-paragraph (b)(ii)(B) above:
(a) Email from Richard Jagger to Peter Hicks and others sent
at 2.31pm on 5 May 2006 entitled “Traffic DDSC”,
attaching document entitled "Draft Traffic Due Diligence
Subcommittee Key Issues Report dated 4 May 2006",
[ACM.001.111.6657] with attachment
[ACM.001.111.6658].
(b) Email from Richard Jagger to Peter Hicks and others, sent
at 15:51 on 11 May 2006, entitled "Traffic DDSC 11 May
Agenda" attaching the agenda for the Traffic Due Diligence
Subcommittee meeting held on 11 May 2006 and the
Traffic Due Diligence Subcommittee: Key Issues Report,
[ACM.001.091.9645] with attachments
[ACM.001.091.9646] and [ACM.001.091.9647].
(c) Email from Peter Hicks to Malcolm Haack, sent at 6.01am
on 1 June 2006 entitled “RE: Copy of Final Draft of
Investigating Accountants Report”, [ACM.001.017.3280]
and attachment [ACM.001.017.3284].
(d) Email from Peter Hicks to Malcolm Haack, sent at
10.59am on 1 June 2006 entitled “RE: PDS Summary
Letter”, [ACM.001.015.3143].
6. As to sub-paragraph (b)(ii)(C) - (M) above:
(a) Email from Richard Jagger to Peter Hicks and others sent
at 2.31pm on 5 May 2006 entitled “Traffic DDSC”,
attaching document entitled "Draft Traffic Due Diligence
Subcommittee Key Issues Report", dated 4 May 2006,
[ACM.001.111.6657] with attachment
[ACM.001.111.6658].
(b) Email from Richard Jagger to Peter Hicks and others, sent
at 15:51 on 11 May 2006, entitled "Traffic DDSC 11 May
Agenda" attaching the agenda for the Traffic Due Diligence
Subcommittee meeting held on 11 May 2006 and the
Traffic Due Diligence Subcommittee: Key Issues Report,
[ACM.001.091.9645] with attachments
[ACM.001.091.9646] and [ACM.001.091.9647].
(c) Email from Peter Hicks to Malcolm Haack sent at 6.01am
on 1 June 2006 entitled “RE: Copy of Final Draft of
Part B. North-South Bypass Tunnel
149
Investigating Accountants Report”, [ACM.001.017.3280]
and attachment [ACM.001.017.3284].
7. As to sub-paragraph (b)(iii) above, email from Malcolm Haack to
Peter Hicks and Thao Oakey copied to others, sent at 5.34pm on
19 May 2006 entitled “RE: PDS clause re availability of Maunsell
report” [ACM.001.091.9124] and attachment [ACM.001.091.9129].
8. As to both sub-paragraphs (a) and (b) above, further particulars
may be supplied upon further review of already discovered and
subpoenaed documents and the review of documents and
evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor
Clients or, in the alternative, ABN AMRO, in the course of the
NSBT Project.
RCM PDS Action
93. At all material times, each of the Sponsor Clients, RCMML and RCM Services, by their
representative and agent, Peter Hicks:
(a) was actively involved in:
(i) the drafting and approval of the PDS; and
(ii) giving instructions, information, inputs and feedback to AECOM Australia
in connection with the preparation of AECOM Australia's Consented
Material; and
(b) made, and implemented, each of the PDS Decisions.
Particulars
1. As to Peter Hicks acting as the representative and agent of the
Sponsor Clients, RCMML and RCM Services, AECOM Australia
refers to and repeats sub-paragraphs 29(e) and (f) herein and the
particulars thereto.
2. As to sub-paragraph (a)(i) above, AECOM Australia refers to and
repeats the particulars to sub-paragraph 92(a)(i) herein.
3. As to sub-paragraph (a)(ii) above, AECOM Australia refers to and
repeats the particulars to sub-paragraph 92(a)(ii) herein.
4. As to sub-paragraph (b) above, AECOM Australia refers to and
repeats the particulars to sub-paragraph 92(b) herein.
5. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
Hicks' First PDS Confirmation
94. On 5 June 2006, Peter Hicks confirmed, to the directors of RCMML and to the members
of the DDC "and the entities they represent", in respect of matters falling within his area
Part B. North-South Bypass Tunnel
150
of expertise, both on his own behalf and acting for the RCM Consortium or, in the
alternative, the RCM Group or, in the alternative, RCM Services that:
(a) he had been provided with a draft of the PDS;
(b) he understood that the PDS in, or substantially in, that form would be lodged with
the Australian Securities and Investments Commission;
(c) he had read the PDS;
(d) nothing had come to his attention that caused him to believe that:
(i) the PDS contained a statement that was misleading or deceptive;
(ii) there was an omission from the PDS of material required to be included
under the Corporations Act;
(iii) the PDS was "defective", as defined in sections 1021(B)(1) and 1022A(1)
of the Corporations Act; or
(iv) the PDS was not worded in a clear, concise and effective manner;
(e) he had answered, to the best of his knowledge and ability after due enquiry, all
questions and requests for information submitted to him in the course of the due
diligence inquiries carried out in connection with the preparation of the PDS which
were either in writing, asked or received in meetings convened for due diligence
inquiries and PDS drafting, which he was asked directly by or received from
members of the DDC or was asked or received in the verification process for the
PDS; and
(f) he had satisfied himself that all matters he considered to be material relating to
his knowledge of the RCM Trusts and the effect of the RCM IPO had been
identified to the DDC,
(Hicks' First PDS Confirmation).
Particulars
Hicks' First PDS Confirmation is in writing, signed by Peter Hicks and
dated 5 June 2006 [RCG.005.004.0016].
95. By reason of the matters alleged in paragraphs 29, 37, 45, 49, 54, 59, 63 and 64, 68, 80,
83 - 87, 91 and 92 - 94 (Hicks' Expertise), Hicks' First PDS Confirmation constituted
confirmation by Peter Hicks that he was not aware of any statement in the PDS that was
misleading or deceptive, or of any omission from the PDS of material required to be
included under the Corporations Act, whether arising from, in connection with, or by
reason of, AECOM Australia's Retainer Discount, the fact that AECOM Australia's work
was being used in a competitive bid for the NSBT Concession, the NSBT Traffic Forecast
Facts, AECOM Australia's Traffic Forecasts (including the Forecasts), AECOM Australia's
Traffic Reports, AECOM Australia's Consented Material, the making of the PDS
Decisions, or otherwise.
Hicks' Second PDS Confirmation
96. On 13 June 2006, Peter Hicks confirmed, to the directors of RCMML and to the members
of the DDC "and the entities they represent", in respect of matters falling within his area
of expertise, both on his own behalf and acting for the RCM Consortium or, in the
alternative, the RCM Group or, in the alternative, RCM Services that he was not aware
that there was any statement in the PDS that was misleading or deceptive, or of any
Part B. North-South Bypass Tunnel
151
omission from the PDS of material required to be included under the Corporations Act
(Hicks' Second PDS Confirmation).
Particulars
Hicks' Second PDS Confirmation is in writing, signed by Peter Hicks and
dated 13 June 2006 [RCG.005.005.0442].
97. By reason of Hicks' Expertise, Hicks' Second PDS Confirmation constituted confirmation
by Peter Hicks that he was not aware of any statement in the PDS that was misleading or
deceptive, or of any omission from the PDS of material required to be included under the
Corporations Act, whether arising from, in connection with, or by reason of, AECOM
Australia's Retainer Discount, the fact that AECOM Australia's work was being used in a
competitive bid for the NSBT Concession, the NSBT Traffic Forecast Facts, AECOM
Australia's Traffic Forecasts (including the Forecasts), AECOM Australia's Traffic
Reports, AECOM Australia's Consented Material, the making of the PDS Decisions, or
otherwise.
Beca's PDS Summary Report
98. On or about 13 June 2006, Beca issued Beca's PDS Summary Report for inclusion in the
PDS with Beca's consent.
Particulars
Beca's PDS Summary Report, PDS at pages 99-113
[RCG.001.008.6127].
Summary Letter and RCM Trusts Indemnity
99. On or about 16 June 2006, AECOM Australia issued the Summary Letter for inclusion in
the PDS:
(a) upon the terms of, and subject to, AECOM Australia's PDS Consent; and
(b) subject to an agreement with RCMML, as the responsible entity of the RCM
Trusts and the proposed and ultimate issuer of RCM Stapled Units, to indemnify
AECOM Australia for all claims made by third parties arising out of the inclusion
of the Summary Letter in the PDS which are in excess of the aggregate amount
of $500,000 (the RCM Trusts Indemnity).
Particulars
1. AECOM Australia's PDS Consent is in writing and dated 20 June
2006 [ACM.001.015.4451].
2. PDS [ACM.001.015.2211] page 137.
3. PDS [ACM.001.015.2211] page 91.
4. RCM Trusts Indemnity [RCG.005.001.0010].
5. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
Part B. North-South Bypass Tunnel
152
Mallesons' Traffic Forecast Facts
100. By no later than 13 June 2006, Mallesons knew, or ought to have known, each of the
following matters (together, Mallesons' Traffic Forecast Facts):
(a) that Mallesons had been retained to provide legal advice as to whether the PDS
met disclosure requirements under the Corporations Act;
(b) the contents of the TDDSC Key Issues Report;
(c) that AECOM Australia had modelled AM Peak only and had, as a result, used
Expansion Factors;
(d) that the way in which Expansion Factors were used could have an adverse affect
on the reliability of the Forecasts;
(e) that the TDDSC was considering whether the Summary Letter's disclosure of
"assumptions such as expansion factors and annualisation factors", met
"disclosure requirements";
(f) what the Summary Letter and the PDS stated regarding AECOM Australia's use
of AM Peak, Expansion Factors and Annualisation Factors and the Bank Case
forecasts;
(g) that AECOM Australia had made AECOM Australia's Earlier EIS Forecasts;
(h) that the Forecasts predicted significantly higher traffic volumes for the NSBT than
AECOM Australia's Earlier EIS Forecasts predicted for the Possible NSBT albeit,
for the NSBT, on the basis of more up-to-date information and using an enhanced
traffic model;
(i) that the Summary Letter stated that AECOM Australia had provided services to
the BCC for the BCC's "Feasibility Study and Environmental Impact Statement"
but neither the Summary Letter or the PDS otherwise disclosed that the
Forecasts predicted significantly higher traffic volumes for the NSBT than
AECOM Australia's Earlier EIS Forecasts predicted for the Possible NSBT, albeit
on the basis of more up-to-date information and using an enhanced traffic model;
(j) that at least the CCT, amongst other recently opened Australian toll roads, had
failed to meet forecast traffic numbers;
(k) that neither the Summary Letter or the PDS made any statements or disclosures
in respect of the CCT;
(l) that AECOM Australia had prepared its Forecasts as part of a competitive bid for
the NSBT Concession and what the Summary Letter and the PDS stated or
disclosed (if anything) regarding that fact;
(m) that Section 10 (Additional Information) of the PDS made disclosure in relation to
remuneration paid, or payable, to AECOM Australia;
(n) AECOM Australia's Retainer Discount; and
(o) what the Summary Letter and the PDS otherwise stated regarding AECOM
Australia's remuneration, and remuneration arrangements, under AECOM
Australia's Contract and what the Summary Letter and the PDS stated or
disclosed (if anything) regarding AECOM Australia's Retainer Discount.
Part B. North-South Bypass Tunnel
153
Particulars
AECOM Australia refers to and repeats paragraph 81 herein and the
particulars thereto.
Hicks' Third PDS Confirmation
101. On 3 August 2006, Peter Hicks confirmed, to the directors of RCMML and to the
members of the DDC "and the entities they represent", in respect of matters falling within
his area of expertise, both on his own behalf and acting for the RCM Consortium or, in
the alternative, the RCM Group or, in the alternative, RCM Services that he was not
aware that there was any statement in the PDS that was misleading or deceptive, or of
any omission from the PDS of material required to be included under the Corporations
Act (Hicks' Third PDS Confirmation).
Particulars
Hicks' Third PDS Confirmation is in writing, signed by Peter Hicks and
dated 3 August 2006 [RCG.012.003.0022].
102. By reason of Hicks' Expertise, Hicks' Third PDS Confirmation constituted confirmation by
Peter Hicks that he was not aware of any statement in the PDS that was misleading or
deceptive, or of any omission from the PDS of material required to be included under the
Corporations Act, whether arising from, in connection with, or by reason of, AECOM
Australia's Retainer Discount, the fact that AECOM Australia's work was being used in a
competitive bid for the NSBT Concession, the NSBT Traffic Forecast Facts, AECOM
Australia's Traffic Forecasts (including the Forecasts), AECOM Australia's Traffic
Reports, AECOM Australia's Consented Material, the making of the PDS Decisions, or
otherwise.
PDS issue
103. On or about 21 June 2006, RCMML issued the PDS with the knowledge and approval of
the Sponsor Clients, RCM Services, Peter Hicks and Mallesons.
Particulars
1. PDS, second page and paragraph 10.12 [ACM.001.015.2211].
2. Consent of Peter Hicks [RCG.005.004.0015].
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
104. In accordance with the PDS Decisions, and to the knowledge of the Sponsor Clients,
RCMML, RCM Services, Peter Hicks and Mallesons, a copy of the May 2006 Traffic
Report was not made accessible to Potential RCM Stapled Unit Acquirers either in, or
with, the PDS as issued, on the "RiverCity Motorway" website (as proposed and
requested by AECOM Australia) or otherwise.
105. The PDS as issued included the Summary Letter and Beca's PDS Summary Report.
106. The PDS as issued did not contain, and each of the Sponsor Clients, RCMML, RCM
Services and Peter Hicks knew and intended that the PDS did not contain, either the
Omitted Statements or a copy of the May 2006 Traffic Report.
Part B. North-South Bypass Tunnel
154
Particulars
AECOM Australia refers to and repeats paragraphs 92 and 93 herein.
NSBT opening
107. The NSBT opened to traffic on or about 16 March 2010.
Part C. Defence
155
Part C. Defence
Preliminary
108. To the extent that paragraph 1 of the SFASOC makes allegations against AECOM
Australia, AECOM Australia:
(a) does not know and therefore cannot admit that Group Members (hereafter each a
Class Member) acquired an interest in RCM Stapled Units on or about 4 August
2006 or at all;
(b) denies that any Class Member has suffered loss and damage because of the
conduct alleged against AECOM Australia in the SFASOC or at all; and
(c) does not know and therefore cannot admit that each Class Member has entered
into a litigation funding agreement with IMF (Australia) Ltd as at 27 July 2012.
109. AECOM Australia does not know and therefore cannot admit paragraph 2 of the
SFASOC.
110. AECOM Australia does not know and therefore cannot admit paragraph 3 of the
SFASOC.
111. AECOM Australia admits paragraph 4 of the SFASOC.
RiverCity Motorway Group
112. As to paragraph 5 of the SFASOC, AECOM Australia:
(a) admits that RCMML is and was at all material times a company registered
pursuant to the Corporations Act; and
(b) otherwise does not know and therefore cannot admit paragraph 5.
113. As to paragraph 6 of the SFASOC, AECOM Australia:
(a) admits that RCM Services is and was at all material times a company registered
pursuant to the Corporations Act; and
(b) otherwise does not know and therefore cannot admit paragraph 6.
114. AECOM Australia does not know and therefore cannot admit paragraph 7 of the
SFASOC.
115. AECOM Australia admits paragraph 8 of the SFASOC.
116. AECOM Australia admits paragraph 9 of the SFASOC.
117. AECOM Australia admits paragraph 10 of the SFASOC.
118. AECOM Australia does not know and therefore cannot admit paragraph 11 of the
SFASOC.
NSBT
119. As to paragraph 12 of the SFASOC, AECOM Australia:
(a) says that the BCC granted the NSBT Concession to:
(i) RCM Asset as trustee of RCMAT; and
Part C. Defence
156
(ii) RCM Operations; and
(b) otherwise does not know and therefore cannot admit paragraph 12.
120. As to paragraph 13 of the SFASOC, AECOM Australia:
(a) admits that the NSBT opened to traffic on or about 16 March 2010; and
(b) otherwise does not know and therefore cannot admit paragraph 13.
PDS
121. As to paragraph 14 of the SFASOC, AECOM Australia:
(a) admits that RCMML was the responsible entity of the RCM Trusts on or about 21
June 2006;
(b) admits that RCMML held AFSL No. 297867;
(c) admits the issue of the PDS on or about 21 June 2006;
(d) admits that the offer under the PDS was an invitation to apply for RCM Stapled
Units;
(e) admits that RCMML was the issuer of the PDS;
(f) says that, in the PDS, RCMML stated that:
(i) it had previously appointed RCM Services to provide certain
administrative and other services to RCMML;
(ii) RCM Services had agreed to prepare a product disclosure statement in
respect of the offer of RCM Stapled Units; and
(iii) RCM Services had agreed to ensure that appropriate due diligence and
verification was performed in respect of that product disclosure statement;
and
(g) otherwise does not know and therefore cannot admit paragraph 14.
122. As to paragraph 15 of the SFASOC, AECOM Australia:
(a) admits that, in the PDS, RCMML stated that RCM Services had prepared the
PDS as alleged in paragraph 15 of the SFASOC; and
(b) otherwise does not know and therefore cannot admit that RCM Services in fact
prepared the PDS as alleged in paragraph 15.
123. As to paragraph 16 of the SFASOC, AECOM Australia:
(a) admits that, in the PDS, RCMML stated that RCM Services had given the consent
alleged; and
(b) otherwise does not know and therefore cannot admit that RCM Services had in
fact given the consent alleged in paragraph 16.
124. As to paragraph 17 of the SFASOC, AECOM Australia:
(a) says that AECOM Australia gave its consent as set out in AECOM Australia's
PDS Consent and refers to and repeats sub-paragraph 35(e) herein and
paragraphs 4 and 5 of the particulars thereto;
Part C. Defence
157
(b) will refer to the terms of AECOM Australia's PDS Consent for their full force and
effect at any trial;
(c) says that AECOM Australia's PDS Consent was only given on the basis that
AECOM Australia was not authorising the issue of the PDS and AECOM Australia
did not thereby make any representation regarding, took no responsibility for, and
was not responsible or liable for:
(i) any statements or material in the PDS which were not AECOM Australia's
Consented Material; or
(ii) omissions from the PDS;
Particulars
AECOM Australia repeats paragraphs 4 and 5 of the particulars to sub-paragraph 35(e) herein.
(d) says that it did not authorise the issue of the PDS and made no representation
regarding, took no responsibility for, and has no responsibility or liability for:
(i) any statements or material in the PDS which were not AECOM Australia's
Consented Material; or
(ii) omissions from the PDS;
Particulars
AECOM Australia repeats paragraphs 4 and 5 of the particulars to sub-paragraph 35(e) herein.
(e) further and in the alternative to sub-paragraphs (c) and (d) above, says that it
expressly disclaimed and expressly took no responsibility for, and is not
responsible or liable for or in respect of, any part of the PDS which is not AECOM
Australia's Consented Material;
Particulars
1. PDS, page 137 [ACM.001.015.2211].
2. Further particulars may be supplied upon further review of already discovered and subpoenaed documents and the review of documents and evidence to be produced or served, including documents stored on servers maintained by, or for and on behalf of, the Sponsor Clients or, in the alternative, ABN AMRO, in the course of the NSBT Project.
(f) otherwise denies paragraph 17.
125. As to paragraph 18 of the SFASOC, AECOM Australia:
(a) repeats sub-paragraphs 124(a) - (e) herein;
(b) will refer to the terms of the Summary Letter for their full force and effect at any
trial;
(c) denies that AECOM Australia's PDS Consent was given in respect of, or that
AECOM Australia consented to, the inclusion in the PDS of any statements which
Part C. Defence
158
were not AECOM Australia's Consented Material (Other Alleged AECOM
Australia PDS Statements);
(d) denies that it is responsible for, or liable in respect of, Other Alleged AECOM
Australia PDS Statements; and
(e) otherwise denies paragraph 18.
Alleged issue of RCM Stapled Units to Applicants
126. AECOM Australia does not know and therefore cannot admit paragraph 19 of the
SFASOC.
127. AECOM Australia does not know and therefore cannot admit paragraph 20 of the
SFASOC.
AECOM Australia's Earlier EIS Forecasts
128. As to paragraph 21 of the SFASOC, AECOM Australia:
(a) says that AECOM Australia's Earlier EIS Forecasts were in respect of the
Possible NSBT, rather than the NSBT;
(b) says that AECOM Australia's Earlier EIS Forecasts in respect of the Possible
NSBT were made using certain assumptions, estimates, forecasts and other
information appropriate and reasonably available to AECOM Australia in late
2004 and early 2005 (the Older EIS Information);
(c) says that the Forecasts were made using assumptions, estimates, forecasts and
other information appropriate and reasonably available to AECOM Australia at a
later time, being mid-to-late 2005 to mid-2006 (the Later RCM Information); and
(d) otherwise admits paragraph 21.
129. As to paragraph 22 of the SFASOC, AECOM Australia:
(a) refers to and repeats its response at paragraph 128 herein;
(b) admits sub-paragraphs (a) and (b);
(c) admits that the outcomes of AECOM Australia's Earlier EIS Forecasts were as set
out in sub-paragraph (c);
(d) denies sub-paragraph (d); and
(e) further says that references by AECOM Australia in AECOM Australia's Earlier
EIS Forecasts to a notional capacity of 95,000 vehicles were references to the
notional vehicle capacity of the Possible NSBT, rather than the NSBT.
The allegation that the Consented Material contained misleading or deceptive statements
Forecasts
130. As to paragraph 23 of the SFASOC, AECOM Australia:
(a) admits that the Forecasts set out in paragraph 23 appear in the Summary Letter;
(b) says that the Forecasts set out in paragraph 23 and which appear in the
Summary Letter were forecasts only in respect of the Base Case;
Part C. Defence
159
(c) says that the Summary Letter expressly stated that, and if and insofar as any
Class Member read the Summary Letter (which is not known to AECOM Australia
and therefore cannot be admitted), that Class Member knew or, in the alternative,
ought to have known, that:
(i) the Forecasts set out in paragraph 23 and which appear in the Summary
Letter were forecasts only in respect of the Base Case;
(ii) other forecasts (identified in the Summary Letter as forecasts in respect of
the "bank" scenario, which is the same scenario defined in this
TFAD4FAD as the Bank Case), using different and additional
conservative assumptions and caps on daily traffic flows, had been
prepared for the debt market (the Debt Market Forecasts);
(iii) the Debt Market Forecasts for the Bank Case produced lower traffic
forecasts than the Forecasts as a result of the different and additional
conservative assumptions and caps on daily traffic flows alleged in sub-
paragraph (ii) above; and
(iv) RCMML, RCM Services and their respective directors considered the
Base Case traffic forecast to be the most appropriate, and a sufficient,
traffic forecast for the purposes of the PDS and had thus directed that
AECOM Australia provide a summary letter of that Base Case scenario;
(d) further says that the Summary Letter expressly stated that, and if and insofar as
any Class Member read the Summary Letter (which is not known to AECOM
Australia and therefore cannot be admitted), that Class Member knew or, in the
alternative, ought to have known, that, the Forecasts were only AECOM
Australia's best judgements, at that time, of future NSBT traffic volumes for the
Base Case, made:
(i) within the time and budget available for the assignment; and
(ii) using estimates and forecasts provided by NIEIR as described therein;
and
(iii) other reasonably available data and other information;
(e) says that it was clear from the Summary Letter that, and if and insofar as any
Class Member read the Summary Letter (which is not known to AECOM Australia
and therefore cannot be admitted), that Class Member knew or, in the alternative,
ought to have known, that:
(i) traffic modelling and forecasting:
(A) necessarily relies upon a complex set of data inputs and
assumptions;
(B) is otherwise complex; and
(C) is not a precise science;
(ii) traffic forecasting and traffic forecasts are subject to obvious risks,
inherent risks and intrinsic uncertainties, especially in respect of what
was, at the relevant time, a large and rapidly growing city such as
Brisbane;
Part C. Defence
160
(iii) future traffic volumes on the future road network of a large and rapidly
growing city depended upon many factors, particularly future population
and employment demographics and traffic and congestion levels on the
road network, taking account of various contingent future changes to the
city and its road network;
(iv) future traffic volumes on the future road network of Brisbane after 2005
particularly depended upon the factors identified in sub-paragraph (iii)
above;
(v) the traffic modelling process and methodology, from and by which the
Forecasts were derived, necessarily involved various steps, assumptions
and other inputs, many of which were interdependent;
(vi) further to sub-paragraph (v) above, each of the following were steps or
inputs in that traffic modelling process:
(A) estimates of road trips taken during the AM Peak;
(B) assumptions as to trip purposes;
(C) NIEIR's Growth Forecasts;
(D) assumptions as to the perceived benefits and drawbacks of
different routes and driver response to tolls under different travel
time scenarios and different traffic and travel cost conditions;
(E) trip assignment;
(F) base and future year estimates of traffic and travel time;
(G) Expansion Factors;
(H) Annualisation Factors;
(I) ramp up assumptions and estimates;
(J) assumptions in relation to government and council plans for
roadwork development, determined from detailed Queensland
Department of Main Roads and BCC plans and incorporating
projects recently announced by the Queensland Government and
the BCC, as well as the NSBT and associated road network
changes; and
(K) an assumption that the ultimate design of the NSBT would deliver
the capacity required to carry the forecast traffic flows;
(vii) AECOM Australia could not, and did not, guarantee that the estimates,
assumptions and forecasts upon which the Forecasts were based would,
in fact, be correct or accurate;
(viii) AECOM Australia could not, and did not, guarantee that the Forecasts or
other projected outcomes would be achieved;
(ix) the Forecasts were only a prediction of what might happen in the future
and actual future NSBT traffic volumes could vary materially from the
Forecasts by reason of numerous factors;
Part C. Defence
161
(x) actual future NSBT traffic volumes would be affected, both directly and
indirectly, by numerous factors, many of which were external and unable
to be controlled or predicted by AECOM Australia;
(xi) examples of factors which would affect actual future NSBT traffic volumes,
both directly and indirectly, included:
(A) the capacity of the NSBT and its feeder roads;
(B) additional and, or in the alternative, unexpected roadway alternatives;
(C) the pace, nature and locations of population, employment or economic growth (or decline) in Brisbane;
(D) general traffic levels in the relevant area and on routes to and from the NSBT;
(E) the quality and proximity of alternative roads and other transport infrastructure;
(F) toll rates; and
(G) fuel prices;
(xii) there was a significant risk that the NSBT’s actual traffic volumes and
revenue may be adversely affected by the factors identified in section 8 of
the PDS, which were stated to include, but not be limited to:
(A) the occurrence and timing of other planned road projects, in particular, the duplication of the Gateway Bridge, the new Airport Link and the new Hale Street Bridge;
(B) problems integrating the NSBT into the road network;
(C) future network changes;
(D) any failure to make anticipated or assumed network changes, such as the then planned introduction of a T3 lane on the Story Bridge;
(E) demographic and economic conditions, including CPI, inflation, population growth, interest rates and taxation;
(F) changing travel patterns and habits;
(G) the Expansion Factors used in the Forecasts;
(H) the penetration of e-tolls into the marketplace;
(I) economic developments;
(J) industrial and residential shifts in the area of Brisbane that the NSBT would service;
(K) drivers’ willingness to pay tolls; and
Part C. Defence
162
(L) whether the benefits offered by the NSBT (including travel time savings) were considered by drivers to be worth the payment;
(xiii) there was an obvious and inherent risk that actual future traffic volumes in
the NSBT would be materially below the Forecasts, through no fault of
AECOM Australia, if:
(A) actual economic growth was lower and, or in the alternative, slower, than forecast or assumed in NIEIR's Growth Forecasts, either generally or in zones of particular relevance to the NSBT;
(B) actual population, and, or in the alternative, actual population growth, were different, than forecast, or assumed, in NIEIR's Growth Forecasts, either generally or in zones of particular relevance to the NSBT;
(C) actual employment and, or in the alternative, actual employment growth, were lower than forecast, or assumed, in NIEIR's Growth Forecasts, either generally or in zones of particular relevance to the NSBT;
(D) there were unanticipated increases in actual unemployment which NIEIR had not forecast or taken into account in NIEIR's Growth Forecasts, either generally or in zones of particular relevance to the NSBT;
(E) actual wages and, or in the alternative, actual wages growth, were lower than was forecast, or assumed, in NIEIR's Growth Forecasts, either generally or in zones of particular relevance to the NSBT; and, or in the alternative,
(F) unplanned or unexpected changes in public transport policy negatively impacted the trip matrices produced by NIEIR by making public transport more attractive;
(xiv) AECOM Australia did not undertake any duty, nor did it accept any
responsibility, to Potential RCM Stapled Unit Acquirers;
(xv) anyone relying on information in the Summary Letter was required, as a
condition thereof, to accept full responsibility, and hold AECOM Australia
harmless, for the impacts on the Forecasts or the earnings of the NSBT
from changes in external factors (External Change Events), including
changes in government policy or the pricing of fuels, road pricing
generally, alternate modes of transport, the construction of other means of
transport, the behaviour of competitors or changes in policy affecting the
operation of the project (the External Change Events Release);
(xvi) RCMML, as the responsible entity of the RCM Trusts and the proposed
and ultimate issuer of RCM Stapled Units, had agreed to provide the RCM
Trusts Indemnity to AECOM Australia; and
(xvii) investors in RCM Stapled Units bore the risk of any claims being made
against AECOM Australia for which AECOM Australia could claim against
RCMML under the RCM Trusts Indemnity;
(f) will refer to the Summary Letter for its full force and effect at any trial;
Part C. Defence
163
(g) further says that it was made clear elsewhere in the PDS that, and if and insofar
as any Class Member read the PDS (which is not known to AECOM Australia and
therefore cannot be admitted), that Class Member knew or, in the alternative,
ought to have known, that:
(i) returns to investors in RCM Stapled Units depended upon how many
vehicles used the NSBT, amongst many other things;
(ii) traffic modelling and forecasting:
(A) necessarily relies upon a complex set of data inputs and assumptions;
(B) is otherwise complex; and
(A) is not a precise science;
(iii) traffic forecasting and traffic forecasts are subject to obvious risks,
inherent risks and intrinsic uncertainties, especially in respect of what
was, at the relevant time, a large and rapidly growing city such as
Brisbane;
(iv) the Forecasts were especially reliant on complex sets of data inputs and
assumptions in respect of what was, at the relevant time, a large and
rapidly developing Brisbane;
(v) forecast demand for the NSBT was underpinned by the belief held by
RCMML’s and RCM Services' directors and management or, in the
alternative, RCMML’s and RCM Services' belief (the RCM Growth Belief)
that:
(A) the NSBT would occupy a central position in South-East Queensland;
(B) South-East Queensland was the fastest growing region in Australia in terms of population, economic and employment growth;
(C) Brisbane river crossing capacity lagged behind Brisbane’s recent population growth, which was expected to grow by more than 40% between 2004 and 2026;
(D) this growth in population, employment and the economy generally would stimulate increased road usage in Brisbane which, in the absence of improved infrastructure, would lead to increasing congestion on Brisbane’s road network; and
(E) the fact that Brisbane was one of the most car dependant cities in Australia would lead to increasing congestion in Brisbane over the NSBT Concession period;
(vi) the RCM Growth Belief was fundamentally based upon estimates and
forecasts relating to population, employment, the economy, economic and
employment growth;
(vii) those estimates and forecasts were contained within NIEIR's Growth
Forecasts which AECOM Australia relied upon to produce the Forecasts;
Part C. Defence
164
(viii) traffic volumes may not grow at the rate or at the times projected;
(ix) investors in RCM Stapled Units bore the risk that the NSBT’s traffic
volumes may be adversely affected by various factors;
(x) actual future NSBT traffic volumes would be affected, both directly and
indirectly, by numerous factors, many of which were external and unable
to be controlled or predicted by AECOM Australia;
(xi) examples of factors which would affect actual future NSBT traffic volumes,
both directly and indirectly, included:
(A) the capacity of the NSBT and its feeder roads;
(B) additional and, or in the alternative, unexpected roadway alternatives;
(C) the pace, nature and locations of population, employment or economic growth (or decline) in Brisbane;
(D) general traffic levels in the relevant area and on routes to and from the NSBT;
(E) the quality and proximity of alternative roads and other infrastructure;
(F) toll rates; and
(G) fuel prices;
(xii) there was a significant risk that the NSBT’s actual traffic volumes and
revenue may be adversely affected by the factors identified in section 8 of
the PDS which were stated to include, but not be limited to:
(A) the occurrence and timing of other planned road projects including, in particular, the duplication of the Gateway Bridge, the new Airport Link and the new Hale Street Bridge;
(B) problems integrating the NSBT into the road network;
(C) future network changes;
(D) any failure to make anticipated or assumed network changes, such as the then planned introduction of a T3 lane on the Story Bridge;
(E) demographic and economic conditions, including CPI, inflation, population growth, interest rates and taxation;
(F) changing travel patterns and habits;
(G) the Expansion Factors and Annualisation Factors used in the Forecasts;
(H) the penetration of e-tolls into the marketplace;
(I) economic developments;
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165
(J) industrial and residential shifts in the area of Brisbane that the NSBT would service;
(K) drivers’ willingness to pay tolls; and
(L) whether the benefits offered by the NSBT were considered by drivers to be worth the payment;
(xiii) there was both an obvious risk and an inherent risk that there would be a
material adverse effect on traffic volumes, the results of operating the
NSBT, the RCM Group’s financial condition and the value of any
investment in RCM Stapled Units if there were subsequent adverse
developments;
(xiv) there was both an obvious risk and an inherent risk that actual traffic
volumes using the NSBT, the results of operating the NSBT, the RCM
Group's financial condition and the value of RCM Stapled Units would be
materially adversely impacted by subsequent adverse developments in:
(A) economic conditions, including lower and, or in the alternative, slower and, or in the alternative, different growth, lower employment and, or in the alternative, higher unemployment and, or in the alternative, declines in consumer sentiment and, or in the alternative, consumer spending, either generally or in zones of particular relevance to the NSBT;
(B) demography and land use, including lower or different population and, or in the alternative, lower population growth and, or in the alternative, adverse changes in land use, either generally or in zones of particular relevance to the NSBT;
(C) network configuration, including developments which made competing routes relatively more attractive compared to the NSBT, especially in zones of particular relevance to the NSBT;
(D) network congestion, in circumstances in which declines in network congestion made un-tolled alternatives significantly more attractive than a tolled NSBT;
(E) fuel prices, including higher or volatile prices;
(F) the availability and attractiveness of alternative modes of transport; and
(G) the capacity and willingness of drivers to pay tolls for any reason, including by reason of sudden and, or in the alternative, significant declines in economic conditions either generally or in zones of particular relevance to the NSBT;
(xv) nothing in the PDS should be construed as a recommendation
concerning, or to invest in, the RCM Stapled Units;
(xvi) any prospective investor should speak to an Australian financial services
licensee or an authorised representative of an Australian financial
services licensee to obtain advice or more information about the RCM
Stapled Units;
Part C. Defence
166
(xvii) the RCM Group’s debt facilities may not be available if the NSBT
performed poorly;
(xviii) an investment in the RCM Stapled Units would be subject to investment
risk, which included possible loss of capital invested;
(xix) repayment of capital was not guaranteed; and
(xx) AECOM Australia had been granted the RCM Trusts Indemnity.
Actual traffic
131. As to paragraph 24 of the SFASOC, AECOM Australia:
(a) admits that actual traffic volumes in the NSBT have been lower than predicted in
the Forecasts in respect of the period up to and including April 2012; and
(b) otherwise does not know and therefore cannot admit paragraph 24.
Alleged misleading or deceptive Forecasts
132. As to paragraph 25 of the SFASOC, AECOM Australia:
(a) admits sub-paragraph (a);
(b) admits that actual traffic volumes in the NSBT up to and including April 2012 have
been lower than predicted in the Forecasts in respect of that period, but otherwise
does not know and therefore cannot admit sub-paragraph (b); and
(c) denies sub-paragraph (c) and says that such representations as were made by
reason of the Forecasts were made by AECOM Australia with respect to future
matters and upon reasonable grounds.
133. AECOM Australia denies paragraph 26 of the SFASOC, and further says that:
(a) AECOM Australia’s traffic forecasting methodology reasonably accommodated all
material risks that could reasonably have been expected to materially affect the
reasonableness of the Forecasts, within the context of the time and budget of its
commission, using the information available to AECOM Australia at the time the
commission was carried out;
(b) the Forecasts were the product of the exercise of due skill and care by AECOM
Australia;
(c) AECOM Australia had reasonable grounds for making the Forecasts;
(d) AECOM Australia had reasonable grounds for relying upon, and did reasonably
reply upon, NIEIR's Work, NIEIR's Growth Forecasts and, or in the alternative,
NIEIR's Additional Statements;
(e) in developing and implementing AECOM Australia's traffic forecasting
methodology to produce the Forecasts, and in producing the Forecasts, AECOM
Australia:
(i) was practising a profession, namely, traffic forecasting; and
(ii) acted at all material times in a manner that, at the time the services were
provided, was widely accepted by rational, peer professional opinion as
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167
competent professional practice and AECOM Australia refers to and
repeats paragraphs 47, 52 and 57 herein;
(f) the mere fact that actual traffic volumes in the NSBT up to and including April
2012 were below the traffic volumes predicted in the Forecasts in respect of the
same period does not warrant any inference, or conclusion, that AECOM
Australia did not have reasonable grounds for making the Forecasts;
(fa) the mere fact that the traffic volumes predicted in AECOM Australia's Earlier EIS
Forecasts were below the traffic volumes predicted in the Forecasts in respect of
the same period does not warrant any inference, or conclusion, that AECOM
Australia did not have any reasonable grounds for making the Forecasts;
(fb) the traffic volumes predicted in AECOM Australia's Earlier EIS Forecasts were
different from the traffic volumes predicted in the Forecasts because, as was
expressly stated in the Summary Letter, and as was the case, AECOM Australia's
traffic model used to produce the Forecasts was enhanced, compared to the
model used to derive AECOM Australia's Earlier EIS Forecasts, by revised
demographic and economic forecasts, the use of more recent household travel
survey data, improved modelling of intersections, an additional market research
survey, additional market research analysis, additional traffic counts and
improved calibration;
(g) actual traffic volumes using the NSBT up to and including April 2012 were below
the Forecasts because of, or, in the alternative, materially because of, the
combined effects of the following subsequent, significant, adverse factors (the
Subsequent Adverse Factors):
(i) different population and, or in the alternative, lower or different population
growth and, or in the alternative, adverse changes in land use compared
to that forecast and assumed in NIEIR's Growth Forecasts and, or in the
alternative, NIEIR's Additional Statements, especially in zones of
particular relevance to the NSBT;
(ii) actual economic growth being lower and different than forecast and
assumed in NIEIR's Growth Forecasts and, or in the alternative, NIEIR's
Additional Statements:
(A) both generally and in zones of particular relevance to the NSBT; and
(B) especially within the 12 month period prior to the opening of the NSBT on or about 16 March 2010 and following, during which period actual economic growth was significantly lower than forecast and assumed in NIEIR's Growth Forecasts and, or in the alternative, NIEIR's Additional Statements, in particular due to the unanticipated and severe effects of the global financial crisis (the GFC);
(iii) a sudden and sharp rise in unemployment levels from early 2009
onwards, which:
(A) significantly exceeded unemployment levels between 2005 and 2006, both generally in Queensland and Brisbane and in zones of particular relevance to the NSBT; and
Part C. Defence
168
(B) remained significantly higher at or about the time the NSBT opened in March 2010, in particular as a result of the effects of the GFC;
(iv) the failure of employment growth to exceed population growth, as forecast
and assumed in NIEIR's Growth Forecasts and, or in the alternative,
NIEIR's Additional Statements, in particular as a result of the effects of the
GFC;
(v) significantly lower consumer confidence and disposable incomes, both
generally and in zones of particular relevance to the NSBT, in particular
as a result of the effects of the GFC;
(vi) a sudden, sharp, significant and enduring decline in consumer spending
from no later than March 2009, in particular as a result of the effects of the
GFC;
(vii) an abnormal level of growth and, or in the alternative, abnormal volatility,
in fuel prices subsequent to 2005, in particular after the Queensland
government removed an existing fuel subsidy in July 2009;
(viii) significantly increased public transport usage, both in absolute terms and
relative to private vehicle usage, stimulated by changes in public transport
policy and the adverse effects of sharply declining economic conditions;
(ix) adverse changes in network configuration;
(x) further to sub-paragraph (ix) above:
(A) the earlier than anticipated expansion of the Gateway Bridge;
(B) the Hale Street Bridge opening approximately six years earlier
than had been reasonably anticipated; and, or in the alternative
(C) the failure to implement what had been a planned T3 lane on the
Story Bridge;
(xi) a resultant significant decline in network congestion, both generally and in
zones of particular relevance to the NSBT, which makes untolled
alternatives significantly more attractive than the tolled NSBT; and, or in
the alternative
(xii) a resultant decline in driver capacity and, or in the alternative, willingness
to pay to tolls.
Alleged further misleading or deceptive statements in Consented Material
134. AECOM Australia denies paragraph 27 of the SFASOC, and further says:
(a) in relation to sub-paragraph (a) of paragraph 27 of the SFASOC that:
(i) AECOM Australia denies that AECOM Australia's Consented Material at
pages 91 (paragraph 3), 92 (paragraph 9) and 96 (paragraphs 1 and 2) of
the PDS (being pages of the Summary Letter) stated that the assumptions
and inputs adopted by AECOM Australia for its traffic modelling of the
Base Case were “conservative” as alleged or at all;
(ii) AECOM Australia’s statements in AECOM Australia's Consented Material,
at pages 91 (paragraph 3) and 92 (paragraph 9) of the PDS, that any
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169
assumptions and, or in the alternative, inputs and, or in the alternative,
approaches, were “conservative”, related only to assumptions and, or in
the alternative, inputs and, or in the alternative, approaches used in the
Debt Market Forecasts and not the Base Case forecasts and then only
that they were more conservative than the assumptions and, or in the
alternative, inputs and, or in the alternative, approaches, used in the Base
Case forecasts; and
(iii) AECOM Australia's statement in AECOM Australia's Consented Material,
at page 96 (paragraph 1) of the PDS that an assumption and, or in the
alternative, input and, or in the alternative, approach was “conservative”,
related only to the stated input and approach of basing 2012 Forecasts on
2011 "trip tables", with updated network assumptions, including the Airport
Link;
(b) in relation to sub-paragraph (aa) of paragraph 27 of the SFASOC that:
(i) the Reasonable Statements were statements as to AECOM Australia's
belief that, in all of the circumstances, assumptions adopted by AECOM
Australia were reasonable, that the Forecasts were reasonable for the
assumptions made and that it was reasonable for AECOM Australia to
use assumptions of the nature described in the Summary Letter for the
purposes of its modelling of the Base Case to produce the Forecasts (as
the case may be) and AECOM Australia did, in fact, believe those
matters;
(ii) in the alternative to sub-paragraph (i) above, if, which is denied, AECOM
Australia stated that assumptions adopted by AECOM Australia were
reasonable, that the Forecasts were reasonable for the assumptions
made and that it was reasonable for AECOM Australia to use
assumptions of the nature described in the Summary Letter for the
purposes of its modelling of the Base Case to produce the Forecasts
(rather than stating its belief as to those matters in all of the
circumstances) then:
(A) "reasonableness" has to be adjudged in all of the circumstances;
(B) the assumptions adopted by AECOM Australia to produce the
Forecasts were, in fact, reasonable in all of the circumstances;
(C) the Forecasts were, in fact, reasonable for the assumptions made
in all of the circumstances; and
(D) it was, in fact, reasonable, in all of the circumstances, for AECOM
Australia to use assumptions of the nature described in the
Summary Letter for the purposes of its modelling of the Base
Case to produce the Forecasts;
(c) in relation to sub-paragraph (ab) of paragraph 27 of the SFASOC that:
(i) the Sound and Appropriate Statements were statements as to AECOM
Australia's belief that the Forecasts were, in all of the circumstances,
“based on sound inputs and appropriate modelling processes” and
AECOM Australia did, in fact, believe that the Forecasts were “based on
sound inputs and appropriate modelling processes”; and
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170
(ii) in the alternative to sub-paragraph (i) above if, which is denied, AECOM
Australia stated that the Forecasts were “based on sound inputs and
appropriate modelling processes” (rather than stating its belief that the
Forecasts were "based on sound inputs and appropriate modelling
processes"), the Forecasts were, in fact, “based on sound inputs and
appropriate modelling processes”;
(ca) in relation to sub-paragraph (ac) of paragraph 27 of the SFASOC that the
Reduction of Inaccuracies Statement was:
(i) immediately preceded, in the same sentence of the Summary Letter, by,
and had to be read in context with, an express statement that risks of
inaccuracies in AECOM Australia's Traffic Forecasts could not be
eliminated; and
(ii) not wrongly stated in circumstances where detailed processes undertaken
by AECOM Australia (including but not limited to those referred to by way
of example) had, in fact, reduced the risk of inaccuracies in the Forecasts;
(d) that the statements attributed to AECOM Australia in sub-paragraph (b) of
paragraph 27 of the SFASOC were not AECOM Australia's Consented Material;
(e) further and in the alternative to sub-paragraph (d) above, that it did not wrongly
overstate the size of the market for the NSBT or misstate the operation of
Brisbane’s existing road network in the event of the opening of the NSBT as
alleged in sub-paragraph (b) of paragraph 27 of the SFASOC or at all;
(f) further and in the alternative to sub-paragraphs (d) and (e) above, that:
(i) page 32 of the PDS did not state that 550,000 vehicle trips crossed the
Brisbane River each working day;
(ii) page 32 of the PDS instead states that, in 2005, there were approximately
550,000 vehicle trips across the Brisbane River each working day;
(iii) page 32 of the PDS did not state that 80% of those working day vehicle
trips were "through trips";
(iv) page 32 of the PDS instead states that, in 2005, approximately 80% of
those working day vehicle trips were "through trips"; and
(v) the statements that were, in fact, made were not wrong or misleading;
(g) further and in the alternative to sub-paragraphs (d) and (e) above, it was not
wrong to state that approximately 75% of car trips across a CBD Bridge (as
defined) were "through trips";
(h) further and in the alternative to sub-paragraphs (d) and (e) above, it did not cite,
or rely upon, population, land-use, economic growth and employment growth
forecasts for Brisbane (the Demographic and Economic Forecasts) which were
overly optimistic with a compound inflationary effect in order to generate forecasts
of high congestion on alternative routes to the NSBT as alleged in sub-paragraph
(b)(iii) of paragraph 27 of the SFASOC or at all;
(i) the Demographic and Economic Forecasts upon which AECOM Australia relied in
the preparation of the Forecasts:
Part C. Defence
171
(i) were prepared and provided by NIEIR which was, and was, at all material
times, reasonably believed by AECOM Australia to be, a leading
Australian economic, demographic and trip generation forecaster which:
(A) was highly skilled;
(B) had extensive experience in undertaking economic, demographic
and trip generation modelling and providing population, land-use,
economic growth and, or in the alternative, employment growth
assumptions and forecasts and, or in the alternative, trip
generation forecasts; and
(C) had both specific, recent and relevant experience in providing
those services in relation to Brisbane, in relation to toll roads and
for the BCC in respect of infrastructure;
(ii) comprised, or were contained within, NIEIR's Growth Forecasts and, or in
the alternative, NIEIR's Additional Statements;
(iii) were based upon reasonable grounds;
(iv) further, or in the alternative, to sub-paragraph (iii) above, were reasonably
believed by AECOM Australia to be based upon reasonable grounds;
(v) were not overly optimistic;
(vi) further, or in the alternative, to sub-paragraph (v) above, were reasonably
believed by AECOM Australia not to be overly optimistic; and
(vii) were reasonably relied upon by AECOM Australia;
(j) further and in the alternative to sub-paragraphs (d) and (e) above in relation to
sub-paragraph (b)(iv) of the SFASOC:
(i) that the alleged implication does not arise; and, or in the alternative
(ii) that the statements made on page 33 of the PDS regarding NSBT
catchment areas were neither wrong or misleading;
(k) in relation to sub-paragraph (c) of paragraph 27 of the SFASOC:
(i) AECOM Australia admits that it stated in the Summary Letter that traffic
forecasts had been prepared for two population, employment, land use
and economic development scenarios, being the Base Case and the Bank
Case prepared for consideration by the debt markets;
(ii) AECOM Australia denies that the statement set out in sub-paragraph (i)
above was wrong;
(iii) AECOM Australia included a sufficient description of the Bank Case in the
Summary Letter, including an explanation that:
(A) the Bank Case took into account different or additional
conservative assumptions compared to the Base Case as well as
caps on daily flows;
(B) the Bank Case produced traffic forecasts which were lower than
the Forecasts in respect of the Base Case as a result; and
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172
(C) RCMML considered the Base Case forecast to be the most
appropriate traffic forecast to use for the PDS and had accordingly
directed AECOM Australia to only provide a summary letter in
respect of that scenario;
(l) in relation to sub-paragraph (d) of paragraph 27 of the SFASOC:
(i) AECOM Australia denies that the statement attributed to AECOM
Australia therein was wrong, and further says that AECOM Australia
expressly stated in the Summary Letter that the Forecasts were made
upon the assumption, by AECOM Australia, that the design of the NSBT
would deliver the capacity required to carry the traffic volumes predicted
by the Forecasts; and
(ii) in the alternative to sub-paragraph (i) above, even if, which is denied, that
statement was wrong, it could not, and did not, result in any material
overstatement of the size of the market for the NSBT or the operation of
Brisbane's existing road network in the event of the opening of the NSBT;
(m) in relation to sub-paragraph (e) of paragraph 27 of the SFASOC, that:
(i) the statements attributed to AECOM Australia in sub-paragraph (e) of
paragraph 27 of the SFASOC were not AECOM Australia's Consented
Material; and
(ii) further and in the alternative to sub-paragraph (i) above, the statements
attributed to AECOM Australia in sub-paragraph (e) of paragraph 27 of the
SFASOC were not wrong or misleading;
(n) in relation to sub-paragraph (f) of paragraph 27 of the SFASOC, that:
(i) the statements attributed to AECOM Australia in sub-paragraph (f) of
paragraph 27 of the SFASOC were not AECOM Australia's Consented
Material; and
(ii) further and in the alternative to sub-paragraph (i) above, the statements
attributed to AECOM Australia in sub-paragraph (f) of paragraph 27 of the
SFASOC were not wrong or misleading; and
(o) in relation to sub-paragraph (g) of paragraph 27 of the SFASOC, that, as stated in
paragraph 1 of section 4 of the Summary Letter, the Forecasts presented
AECOM Australia's Base Case annual average daily traffic forecasts for the
NSBT for the stated forecast years with the stated tolling strategy at September
2001 prices.
Alleged omissions from the Consented Material
135. As to paragraph 28 of the SFASOC, AECOM Australia:
(a) refers to and repeats its response at paragraph 130 herein;
(b) says that the Summary Letter which formed part of AECOM Australia's Consented Material was, and was clearly stated to be, only a summary of AECOM Australia’s traffic forecasting methodology and its resultant traffic forecasts for the Base Case as documented in the May 2006 Traffic Report;
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173
(c) denies that AECOM Australia's Consented Material omitted information that it would be reasonable, for a Potential RCM Stapled Unit Acquirer, to expect to find in AECOM Australia's Consented Material in all of the circumstances, given:
(i) the nature and complexity of, and the numerous obvious risks, inherent risks and intrinsic uncertainties associated with, traffic modelling and forecasting;
(ii) disclosures made in both AECOM Australia's Consented Material and otherwise in the PDS as to the nature and complexity of, and the numerous obvious risks, inherent risks and intrinsic uncertainties associated with, traffic modelling and forecasting;
(iii) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia’s traffic forecasting methodology and its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report; and
(iv) the length and complexity of the May 2006 Traffic Report;
(ca) in further answer to paragraph 28(aa) of the SFASOC:
(i) admits that AECOM Australia's Consented Material did not include the statements in paragraph 28(aa)(i) - (iii) of the SFASOC (the 28(aa) Statements);
(ii) says that the Summary Letter:
(A) is a letter prepared, and stated, to be a summary of AECOM Australia’s traffic forecasting methodology and its resultant traffic forecasts for the Base Case forecast documented in the May 2006 Traffic Report;
(B) is to be read in its entirety and in the context in which it was given, namely, in respect of an equity, rather than debt, offering; and
(C) states, and reflects, AECOM Australia’s opinions, as at the date of the Summary Letter, as to the subject matters of the Summary Letter (namely, the Base Case forecast documented in the May 2006 Traffic Report), including, relevantly, that:
(1) RCMML considered the Base Case forecast to be the most appropriate traffic forecast; and
(2) AECOM Australia believed the forecast Base Case traffic volumes to be based on sound inputs and appropriate modelling processes, and reasonable for the assumptions made in that modelling; and
(iii) denies that, by not including the 28(aa) Sstatements in paragraph 28(aa)(i) - (iii) of the SFASOC, AECOM Australia's Consented Material omitted information that it would be reasonable, for a Potential RCM Stapled Unit Acquirer, to expect to find in AECOM Australia's Consented Material in all of the circumstances, and, or in the alternative, that the 28(aa) Sstatements in paragraph 28(aa)(i) - (iii) of the SFASOC might reasonably be expected to have had a material influence on the decision
Part C. Defence
174
making of a Potential RCM Stapled Unit Acquirer in all of the circumstances, given:
(A) the matters in paragraphs 135(c)(i) - (iv), and (ca)(ii) and (cb) herein; and
(B) the content and effect of the Summary Letter;
(cb) insofar as the allegation in paragraph 28(aa) of the SFASOC alleges that AECOM Australia held, as at the date of the Summary Letter or at any time up to the date of the publication of the PDS, each of the beliefs set out at sub-paragraphs 28(aa)(i) - (iii) of the SFASOC (the 28(aa) Beliefs), AECOM Australia:
(i) denies the allegation;
(ii) says that Ashley Yelds:
(A) was, as at the date of the Summary Letter and the date of publication of the PDS and at all material times from at least 5 October 2005, AECOM Australia's Associate Director - Transport Economics;
(B) was, as at the date of the Summary Letter, the date of publication of the PDS and at all material times from no later than 5 October 2005, the Project Director for AECOM Australia's NSBT Work;
(C) by virtue of the matters referred to in sub-paragraphs 135(cb)(ii)(A) and 135(cb)(ii)(B) above, was authorised by AECOM Australia to sign for, and on behalf of, AECOM Australia:
1. the version of the Summary Letter prepared for the version of the PDS submitted to the BCC with the RCM Consortium's NSBT Project Bid;
2. the verification of AECOM Australia's Consented Material (including the Summary Letter) (the Verification Pack) for the purposes of the due diligence undertaken by the RCM Consortium prior to the issue of the PDS; and
Particulars
Verification Pack signed by Ashley Yelds, dated 2 June
2006 [ACM.001.113.5529]
3. the letter providing the consents and confirmations in relation to AECOM Australia's Consented Material (including the Summary Letter); and
Particulars
Letters signed by Ashley Yelds dated 13 and 20 June
2006 [ACM.002.001.7393] and [ACM.001.015.4451]
(D) signed, on behalf of AECOM Australia, the documents referred to in sub-paragraph 135(cb)(ii)(C) above;
(iii) says further that, by reason of the matters referred to in sub-paragraph 135(cb)(ii) above, from the date of the Summary Letter and the date of
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publication of the PDS and at all material times from no later than 5 October 2005, Ashley Yelds was the relevant corporate mind of AECOM Australia for the purposes of authorising and consenting to the inclusion of AECOM Australia's Consented Material (including the Summary Letter) in the PDS;
(iv) says further that AECOM Australia was aware that:
(A) the PDS, incorporating AECOM Australia's Consented Material (including the Summary Letter), was to be the subject of a process of due diligence by the RCM Consortium prior to the issue of the PDS;
(B) that due diligence process referred to in sub-paragraph (A) above, included, by reason of the DDC Actions and the TDDSC Actions, consideration by the DDC and the TDDSC as to whether AECOM Australia's Consented Material (including the Summary Letter) complied with the PDS Disclosure Obligation;
(C) on or about 11 May 2006, the TDDSC, having reviewed and considered at least the following:
1. the draft in existence as at the date of the meeting of the PDS incorporating AECOM Australia's Consented Material (including the Summary Letter);
2. the December 2005 Traffic Reports and/or the May 2006 Traffic Report;
3. PB's Report; and
4. HTS' Report,
determined that:
5. the Forecasts were the most appropriate traffic forecast to be included in the Summary Letter;
6. the Bank Case Scenario was not material to potential equity investors and did not need to be disclosed in the PDS other than to the extent it was disclosed; and
7. AECOM Australia's Consented Material (including the Summary Letter) complied with the PDS Disclosure Obligation;
Particulars
The TDDSC Key Issues Report, item number 15
[ACM.002.001.7693]
Further particulars may be supplied upon further
review of already discovered and subpoenaed
documents and the review of documents and
evidence to be produced or served, including
documents stored on servers maintained by, or for
and on behalf of, the Sponsor Clients or, in the
Part C. Defence
176
alternative, ABN AMRO, in the course of the NSBT
Project.
(D) ABN AMRO Rothschild (as the Underwriter of the RCM IPO) had directed that, because the Bank Case Scenario was not material to potential equity investors, the Bank Case Scenario was not to be disclosed in the PDS other than to the extent it was disclosed and had otherwise determined that:
1. the Forecasts were the most appropriate traffic forecast to be included in the Summary Letter; and
2. the PDS incorporating AECOM Australia's Consented Material (including the Summary Letter) complied with the PDS Disclosure Obligation;
Particulars
1. The TDDSC Key Issues Report, item number 15
(as updated) [ACM.002.001.7693]
2. Email from Stuart Marks to Peter Hicks, copied to
Thao Oakey and others, sent at 19:23 on 29
November 2005, entitled "PDS Traffic Report -
AAR Initial Comments" [ACM.001.038.3177]
3. Email from Alan Broadbent to Peter Hicks, copied
to Ashley Yelds and Denis Johnston, sent at 12:47
on 30 November 2005, entitled “PDS Traffic Report
– Maunsell Comments”, [ACM.001.021.7960] with
attachment [ACM.001.021.7963]
4. Email from Jabe Jerram to Alan Broadbent, copied
to Ashley Yelds and others, sent at 14:10 on 1
December 2005, entitled "RE: Revised text for the
Maunsell PDS report" [ACM.001.038.3237] with
attachment [ACM.001.038.3243]
5. Email from Peter Hicks to Jabe Jerram, copied to
Michael Neal and others, sent at 01:05 on 2 May
2006, entitled "RE: NSBT PDS"
[ACM.001.038.5683] with attachment
[ACM.001.038.5685]
6. Email from Alan Broadbent to Matthew McCarthy
and Ashley Yelds, sent at 12:59 on 3 May 2006,
entitled "FW: NSBT PDS" [ACM.001.092.0334]
7. Email from Alan Broadbent to Matthew McCarthy
and Ashley Yelds, sent at 13:00 on 3 May 2006,
entitled "FW: NSBT PDS" [ACM.001.015.2040]
8. Email from Michael Neal to Alan Broadbent, Peter
Hicks and Jabe Jerram, copied to Richard Jagger
and others, sent at 06:47 on 6 May 2006, entitled
"Re: Investor presentation" [ACM.001.015.3438]
Part C. Defence
177
9. Section 10.12 of the PDS ("Consents"), at page
136, being ABN AMRO's consent to be named in
the PDS [RCG.001.008.6127]
10. Further particulars may be supplied upon further
review of already discovered and subpoenaed
documents and the review of documents and
evidence to be produced or served, including
documents stored on servers maintained by, or for
and on behalf of, the Sponsor Clients or, in the
alternative, ABN AMRO, in the course of the NSBT
Project.
(E) by 19 May 2006, the RCM Consortium and each of the directors of each company in the RCM Group had considered the then draft of the PDS (incorporating AECOM Australia's Consented Material (including the Summary Letter)) and determined that:
1. the Forecasts were the most appropriate traffic forecast to
be included in the Summary Letter;
2. the Bank Case Scenario was not material to potential
equity investors and did not need to be disclosed in the
PDS other than to the extent it was disclosed; and
3. AECOM Australia's Consented Material (including the
Summary Letter) complied with the PDS Disclosure
Obligation;
Particulars
1. Email from Peter Hicks to Malcolm Haack and
Thao Oakey, copied to Ashley Yelds, sent at 08:28
on 19 May 2006, entitled "RE: PDS clause re
availability of Maunsell Report"
[ACM.001.015.3159]
2. The TDDSC Key Issues Report, item number 15
(as updated) [ACM.002.001.7693]
3. Further particulars may be supplied upon further
review of already discovered and subpoenaed
documents and the review of documents and
evidence to be produced or served, including
documents stored on servers maintained by, or for
and on behalf of, the Sponsor Clients or, in the
alternative, ABN AMRO, in the course of the NSBT
Project.
(F) on 19 May 2006, Denis Johnston confirmed that:
1. he had reviewed the then draft of the Summary Letter;
2. the assumptions made by AECOM Australia in undertaking
AECOM Australia's NSBT Work were sufficiently disclosed
in the then draft of the Summary Letter; and
Part C. Defence
178
3. he otherwise agreed with and approved of the contents of
that draft Summary Letter; and
Particulars
1. Email from Denis Johnston to Malcolm Haack and
Ashley Yelds, copied to Andrew Fells and Alan
Broadbent, sent at 14:15 on 19 May 2006, entitled
"RE: PDS clause re availability of Maunsell report"
[ACM.001.015.3285].
(G) on or about 13 June 2006, the DDC, by its acceptance of the TDDSC Key Issues Report, considered and determined that:
1. the Forecasts were the most appropriate traffic forecast to
be included in the Summary Letter;
2. the Bank Case Scenario was not material to potential
equity investors and did not need to be disclosed in the
PDS other than to the extent it was disclosed; and
3. AECOM Australia's Consented Material (including the
Summary Letter) complied with the PDS Disclosure
Obligation;
Particulars
1. AECOM Australia refers to and repeats paragraph
87 above.
2. Further particulars may be supplied upon further
review of already discovered and subpoenaed
documents and the review of documents and
evidence to be produced or served, including
documents stored on servers maintained by, or for
and on behalf of, the Sponsor Clients or, in the
alternative, ABN AMRO, in the course of the NSBT
Project.
(v) says further that, as at the date that Ashley Yelds:
(A) signed the Verification Pack; and
Particulars
1. Verification Pack signed by Ashley Yelds, dated 2 June
2006 [ACM.001.113.5529]
(B) signed the letter providing the consents and confirmations in relation to AECOM Australia's Consented Material (including the Summary Letter),
Particulars
1. Letters signed by Ashley Yelds dated 13 and 20 June
2006 [ACM.002.001.7393] and [ACM.001.015.4451]
Part C. Defence
179
and, as at the date of signing the Summary Letter and the date of publication of the PDS, Ashley Yelds was the relevant corporate mind of AECOM Australia who:
(C) believed that the Forecasts were the most appropriate traffic forecast to be included in the Summary Letter;
(D) believed the forecast Base Case traffic volumes to be based on sound inputs and appropriate modelling processes, and reasonable for the assumptions made in that modelling;
(E) believed that all material relevant to the Potential RCM Unit Acquirers was disclosed in AECOM Australia's Consented Material (including the Summary Letter);
(F) believed that AECOM Australia's Consented Material (including the Summary Letter) did not contain a material statement that was, or was likely to be, false, or misleading or deceptive, either in isolation or in the general context or form in which the statement appears;
(G) believed that, having regard to applicable disclosure requirements, there was no material omission from AECOM Australia's Consented Material (including the Summary Letter); and
(A)(H) did not believe that the probability of the Forecasts being achieved was low;
(d) says, in further answer to paragraph 28(a) of the SFASOC, that the Summary Letter stated, amongst other things, and it was the case, that:
(i) estimates of the number of road trips taken during an average weekly AM Peak period had been used to develop average weekday morning peak period trip tables incorporating trip generation estimates developed by NIEIR and contained in NIEIR's Growth Forecasts;
(ii) the trips in the morning peak period trip tables had been “assigned” to the Brisbane model network upon the basis of travel times for freely flowing and “stop/start” traffic, travel distances, toll costs where applicable and parameters accounting for the other perceived benefits and drawbacks of different routes;
(iii) the resultant 2005 traffic model was then calibrated against observed 2005 AM Peak traffic flows to derive forecasts of morning peak period traffic;
(iv) these calibrated forecasts had then been expanded by stated Expansion Factors and Annualisation Factors, which had been calculated after analysis of the relationships between AM Peak traffic and daily traffic on relevant major roads in Brisbane and historical trends in these relationships as traffic congestion increased; and
(v) the most significant risks associated with the NSBT and its revenue included risks relating to the Expansion Factors and Annualisation Factors used in the Forecasts;
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180
(e) denies, in further answer to paragraph 28(a) of the SFASOC, that Additional AM Peak Modelling Statements might reasonably be expected to have had a material influence on the decision making of a Potential RCM Stapled Unit Acquirer in all of the circumstances, given:
(i) the explanations that were given as to the modelling process, including in relation to AM Peak modelling and Expansion Factors and Annualisation Factors;
(ii) the nature and complexity of traffic modelling and forecasting; and
(iii) disclosures made in both AECOM Australia's Consented Material, and otherwise in the PDS, as to the nature and complexity of, and the numerous obvious risks, inherent risks and intrinsic uncertainties associated with, traffic modelling and forecasting, including in relation to the use of Expansion Factors and Annualisation Factors;
(f) says, in further answer to paragraph 28(a) of the SFASOC, that it would not have been reasonable for a Potential RCM Stapled Unit Acquirer to expect to find Additional AM Peak Modelling Statements in AECOM Australia's Consented Material given:
(i) the explanations that were given as to the modelling process, including in relation to AM Peak modelling and Expansion Factors and Annualisation Factors;
(ii) the nature and complexity of traffic modelling and forecasting;
(iii) disclosures made in both AECOM Australia's Consented Material, and otherwise in the PDS, as to the nature and complexity of, and the numerous obvious risks, inherent risks and intrinsic uncertainties associated with, traffic modelling and forecasting, including in relation to the use of Expansion Factors and Annualisation Factors; and
(iv) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia’s traffic forecasting methodology and its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report;
(g) denies, in further answer to paragraph 28(a) of the SFASOC, that there were omissions in AECOM Australia's Consented Material in relation to AECOM Australia’s use of AM Peak modelling; and
(h) denies, in further answer to paragraph 28(a) of the SFASOC, that there were omissions in AECOM Australia's Consented Material in relation to AECOM Australia’s use of, and risks associated with the use of, Expansion Factors and Annualisation Factors.
136. In further answer to paragraph 28(b)(i) of the SFASOC, AECOM Australia:
(a) refers to and repeats paragraph 5 herein;
(b) refers to and repeats paragraphs 22 and 51 - 53 herein and the particulars thereto;
(c) admits that PB made PB's Ideal Circumstances Statement;
(d) says that, by no later than 5 October 2005, PB had also concluded that:
Part C. Defence
181
(i) AM Peak was the most robust modelling period in Brisbane, as existing empirical data was more readily available for this period and sound data for validation of the base year AM Peak trip table was also available in the form of the ABS' journey to work data;
(ii) AM Peak was the most consistent period for estimating network travel in Brisbane; and
(iii) while it needed to be approached with caution, modelling AM Peak only was adequate for the purposes of traffic forecasting for the NSBT Project,
(PB's Actual AM Peak Circumstances Statements);
Particulars
1. Presentation by Gillian Ackers, for and on behalf of PB, on 5 October 2005 entitled "Traffic Forecasts- Base Model Review A Presentation to Project Financiers Sponsors Advisor- Parsons Brinckerhoff", [WLB.001.008.0134].
2. Further particulars may be supplied upon further review of already discovered and subpoenaed documents and the review of documents and evidence to be produced or served, including documents stored on servers maintained by, or for and on behalf of, the Sponsor Clients or, in the alternative, ABN AMRO, in the course of the NSBT Project.
(e) denies that PB opined that "modelling the morning peak only" must be undertaken with extreme caution;
(f) says that the caution urged by PB was caution in determining the Expansion Factors to be used to expand modelled AM Peak week day traffic flows to forecast week day traffic volumes (PB's Expansion Factor Caution);
(g) says that AECOM Australia used reasonable and sufficient caution in the determination of the Expansion Factors used to expand modelled AM Peak week day traffic flows to forecast week day traffic volumes;
(h) by no later than 28 October 2005, PB had satisfied itself that AECOM Australia had, in fact, exercised reasonable and sufficient caution in determining the Expansion Factors to be used to expand modelled AM Peak week day traffic flows to forecast week day traffic volumes and had endorsed those Expansion Factors as appropriate (PB's Expansion Factors Endorsement);
Particulars
1. PB's Expansion Factors Endorsement is to be inferred from oral advice provided by Peter Hicks to Alan Broadbent, for and on behalf of AECOM Australia, in or about late October 2005 and, in any event, by no later than 28 October 2005 that Gillian Ackers, who led the PB team undertaking PB's Work, had informed Peter Hicks that she "endorsed" the Expansion Factors used by AECOM Australia.
2. Further particulars may be supplied upon further review of already discovered and subpoenaed documents and the review of documents and evidence to be produced or served, including documents stored on servers maintained by, or for
Part C. Defence
182
and on behalf of, the Sponsor Clients or, in the alternative, ABN AMRO, in the course of the NSBT Project.
(i) says that PB's Report dated November 2005:
(i) noted that:
(A) AM Peak was the most robust period for Brisbane in modelling
terms, as existing empirical data was more readily available for
this period; and
(B) sound data for validation of the base year AM Peak trip table was
available in the form of the ABS journey to work data; and
(ii) concluded that:
(A) the duration of the AM Peak was adequate to reflect travel
throughout the traffic network and for the purposes of traffic
forecasting for the NSBT Project; and
(B) AECOM Australia's base year model was a suitable base year
model on which to base forecasting models in all of the
circumstances,
(PB's Final Actual AM Peak Circumstances Conclusions),
(hereafter, PB's Actual AM Peak Circumstances Statements, PB's Expansion
Factors Endorsement and PB's Final Actual AM Peak Circumstances
Conclusions are together referred to as PB’s PDS Relevant Conclusions);
(j) says that it would have been misleading or likely to mislead, and would have been a source of confusion or potential confusion, given PB’s PDS Relevant Conclusions, to have included, in AECOM Australia's Consented Material, either PB's Ideal Circumstances Statement or any statement that PB had expressed PB's Expansion Factor Caution;
(k) further says that it would not have been reasonable, in all of the circumstances, for a Potential RCM Stapled Unit Acquirer to expect to find PB's Ideal Circumstances Statement and, or in the alternative, a statement as to PB's Expansion Factor Caution in the AECOM Australia's Consented Material given:
(i) PB's Ideal Circumstances Statement was only a statement of PB's opinion as to what might be done if circumstances were "ideal" and both AECOM Australia and PB had concluded that AM Peak was the most robust period for Brisbane in modelling terms in all of the circumstances, especially given available data;
(ii) PB's Expansion Factor Caution only related to the risk of underestimating "differential toll diversion during off peak periods" if appropriate caution was not exercised in the determination of Expansion Factors and:
(A) this risk had to be balanced, as a matter of professional judgement, and was balanced as a matter of professional judgement, by each of AECOM Australia, PB, Keith Long, HTS and the RCM Consortium, against the risks associated with the use of "all day" modelling in this instance, in circumstances where AM Peak was reasonably considered to be, and was, the most
Part C. Defence
183
robust period for Brisbane in modelling terms, as existing empirical data was more readily available for this period and sound data for validation of the base year AM Peak trip table was available in the form of the ABS' journey to work data;
(B) there was and, or in the alternative, AECOM Australia reasonably believed as a matter of professional judgement that there was, a greater risk in using "all day" modelling in those circumstances than in using AM Peak modelling and Expansion Factors;
(C) AECOM Australia had, in fact, exercised reasonable and sufficient caution in determining the Expansion Factors used to estimate week day traffic volumes; and
(D) the Expansion Factors used to derive the Forecasts had received PB's Expansion Factors Endorsement (as alleged in paragraph 136(h) herein) and other positive endorsements from Keith Long and HTS (as alleged in paragraphs 47 and 57 respectively herein);
(iii) PB’s PDS Relevant Conclusions;
(iv) the disclosures made in both AECOM Australia's Consented Material and otherwise in the PDS as to the nature and complexity of, and the numerous obvious risks, inherent risks and intrinsic uncertainties associated with, traffic modelling and forecasting including that the most significant risks associated with the NSBT and its revenue included risks relating to the Expansion Factors used in the Forecasts; and
(v) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia's traffic forecasting methodology and its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report;
(l) further says that it would have been a source of confusion or potential confusion, and would have been misleading or likely to mislead, to have included PB's Ideal Circumstances Statement and, or in the alternative, PB's Expansion Factor Caution in AECOM Australia's Consented Material or, in the alternative, at least without an additional clarifying explanation as to the substance and effect of PB’s PDS Relevant Conclusions (the Further PB Clarifying Statement); and
(m) denies that a combination of PB's Ideal Circumstances Statement and, or in the alternative, PB's Expansion Factor Caution, together with any Further PB Clarifying Statement, might reasonably have been expected to have had a material influence on the decision making of a Potential RCM Stapled Unit Acquirer.
137. In further answer to paragraph 28(b)(ii) of the SFASOC, AECOM Australia:
(a) refers to and repeats paragraph 5 herein;
(b) refers to and repeats paragraphs 22 and 51 - 53 herein and the particulars
thereto;
(a) says that the Summary Letter accurately and sufficiently summarised what PB had been commissioned to do to the best of AECOM Australia’s knowledge and belief, namely, a peer review of model structure and key assumptions;
Part C. Defence
184
(b) denies that statements as to all of the things PB had not been asked to do might reasonably have been expected to have had a material influence on the decision making of a Potential RCM Stapled Unit Acquirer;
(c) further says that it would have been a source of confusion or potential confusion, and would have been misleading or likely to mislead, to have included a statement of all of the things PB had not been asked to do; and
(d) says that it would not have been reasonable, in all of the circumstances, for a Potential RCM Stapled Unit Acquirer to expect to find, in AECOM Australia's Consented Material, statements as to all of the things PB had not been asked to do by the Sponsor Clients or RCMML given:
(i) the unlimited scope of such an explanation;
(ii) that the Summary Letter accurately summarised AECOM Australia’s knowledge and belief as to what PB had been commissioned to do; and
(iii) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia’s traffic forecasting methodology and its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report.
138. In further answer to paragraph 28(c) of the SFASOC, AECOM Australia:
(a) admits that AECOM Australia's Earlier EIS Forecasts had been prepared by AECOM Australia using “all day” modelling;
(b) says that the Summary Letter stated, and it was the case, that:
(i) estimates of the number of road trips taken during an average weekly AM Peak period had been used to develop average weekday morning peak period trip tables incorporating trip generation estimates prepared by NIEIR and contained in NIEIR's Growth Forecasts;
(ii) the trips in the morning peak period trip tables had been “assigned” to the Brisbane model network upon the basis of travel times for freely flowing and “stop/start” traffic, travel distances, toll costs where applicable and parameters accounting for the other perceived benefits and drawbacks of different routes;
(iii) the resultant 2005 traffic model was then calibrated against observed 2005 AM Peak traffic flows to derive forecasts of morning peak period traffic;
(iv) these calibrated forecasts had then been expanded by stated Expansion Factors and Annualisation Factors, which had been calculated after analysis of the relationships between AM Peak traffic and daily traffic on relevant major roads in Brisbane and historical trends in these relationships as traffic congestion increased; and
(v) the most significant risks associated with the NSBT and its revenue included risks relating to the Expansion Factors and Annualisation Factors used in the Forecasts;
(c) says that AECOM Australia's Earlier EIS Forecasts and the Forecasts were not meaningfully comparable, given that AECOM Australia's Earlier EIS Forecasts were made in respect of the Possible NSBT using the Older EIS Information while
Part C. Defence
185
AECOM Australia's later Forecasts were made in respect of the NSBT using the Later RCM Information;
(d) says that, in preparing the Forecasts, AECOM Australia reasonably concluded that, and it was the case that, AM Peak modelling provided a better basis for NSBT traffic modelling for the base year in Brisbane than “all day” modelling;
(e) says that PB correctly noted that AM Peak was the most robust period for Brisbane in modelling terms, as existing empirical data was more readily available for this period and sound data for validation of the base year AM Peak trip table was available in the form of the ABS' journey to work data and refers to and repeats sub-paragraph 52(e) herein;
(f) says that PB ultimately concluded that the duration of the AM Peak was adequate to reflect travel throughout the traffic network and that AECOM Australia’s base year model was a suitable base year model on which to base forecasting models and refers to and repeats sub-paragraphs 52(g) and (n) herein;
(g) further says that it would have been a source of confusion or potential confusion, and would have been misleading or likely to mislead, to have included the All Day Statement in AECOM Australia's Consented Material or, in the alternative, at least without an additional clarifying explanation as to why AM Peak modelling provided a better basis for NSBT traffic modelling for the base year in Brisbane than “all day” modelling, as to the substance and effect of PB’s PDS Relevant Conclusions and as to the many reasons why AECOM Australia's Earlier EIS Forecasts and the Forecasts were not meaningfully comparable (the Further All Day Clarifying Statement);
(h) denies that a combination of the All Day Statement, together with any Further All Day Clarifying Statement, might reasonably have been expected to have had a material influence on the decision making of a Potential RCM Stapled Unit Acquirer in all of the circumstances;
(i) further says that it would not have been reasonable for a Potential RCM Stapled Unit Acquirer to expect to find in AECOM Australia's Consented Material any statement as to the fact that AECOM Australia's Earlier EIS Forecasts were modelled on a different basis in all of the circumstances, given:
(i) the matters set out in sub-paragraphs (c) - (f) above;
(ii) the nature and complexity of traffic modelling and forecasting;
(iii) disclosures made in both AECOM Australia's Consented Material, and otherwise in the PDS, as to the nature and complexity of, and the numerous obvious risks, inherent risks and intrinsic uncertainties associated with, traffic modelling and forecasting;
(iv) the fact that including the All Day Statement would have required the inclusion of the Further All Day Clarifying Statement in order properly to reflect AECOM Australia's reasoning and PB’s PDS Relevant Conclusions, and so as to avoid AECOM Australia's Consented Material causing confusion or potential confusion or being misleading or likely to mislead; and
(v) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia’s traffic forecasting methodology and
Part C. Defence
186
its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report.
139. In further answer to paragraph 28(d) of the SFASOC, AECOM Australia:
(a) admits that AECOM Australia's Consented Material did not contain AECOM Australia's Earlier EIS Forecasts Statements;
(b) says that AECOM Australia's Earlier EIS Forecasts and the Forecasts are not meaningfully comparable, because AECOM Australia's Earlier EIS Forecasts were made in respect of the Possible NSBT using the Older EIS Information while AECOM Australia's later Forecasts were made in respect of the NSBT using the Later RCM Information;
(c) says that it was expressly stated in the Summary Letter, as was the case, that AECOM Australia’s traffic model used to produce the Forecasts was enhanced, compared to the model used to derive AECOM Australia's Earlier EIS Forecasts, by revised demographic and economic forecasts, the use of more recent household travel survey data, improved modelling of intersections, an additional market research survey, additional market research analysis, additional traffic counts and improved calibration;
(d) further says that it would have been a source of confusion or potential confusion, and would have been misleading or likely to mislead, to have included AECOM Australia's Earlier EIS Forecasts Statements in AECOM Australia's Consented Material having regard to:
(i) the matters in sub-paragraphs (b) and (c) above; and
(ii) the fact that the Older EIS Information (unlike the Later RCM Information) also did not:
(A) take account of any TransApex projects (such as the Airport Link), other than the Possible NSBT itself; or
(B) incorporate a number of other planned major road network improvements, including projects announced by the Queensland Government in the “South East Queensland Infrastructure Plan and Program 2005-2006”;
(e) denies that including AECOM Australia's Earlier EIS Forecasts Statements, together with any necessary further explanation as to why AECOM Australia's Earlier EIS Forecasts are not meaningfully comparable with the Forecasts (the Further Earlier EIS Forecasts Clarifying Statement), might reasonably have been expected to have a material influence on the decision making of a Potential RCM Stapled Unit Acquirer;
(f) further says that it would not have been reasonable for a Potential RCM Stapled Unit Acquirer to expect to find that information in AECOM Australia's Consented Material in all of the circumstances, including given:
(i) the matters set out in sub-paragraphs (b) - (d) above;
(ii) the nature and complexity of traffic modelling and forecasting;
(iii) disclosures made in both AECOM Australia's Consented Material, and otherwise in the PDS, as to the nature and complexity of, and the
Part C. Defence
187
numerous obvious risks, inherent risks and intrinsic uncertainties associated with, traffic modelling and forecasting;
(iv) the fact that including AECOM Australia's Earlier EIS Forecasts Statements would have required the inclusion of the Further Earlier EIS Forecasts Clarifying Statement in order to properly reflect the fact that AECOM Australia's Earlier EIS Forecasts and the Forecasts were not meaningfully comparable and so as to avoid AECOM Australia's Consented Material causing confusion or potential confusion or being misleading or likely to mislead; and
(v) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia’s traffic forecasting methodology and its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report.
140. In further answer to paragraph 28(e) of the SFASOC, AECOM Australia:
(a) does not know and therefore cannot admit the allegations as to the performance of the CCT and the M7;
(b) admits that AECOM Australia's Consented Material did not contain the CCT/M7 Statements;
(c) says that neither the CCT nor the M7 were meaningfully comparable to the NSBT so as reasonably to require the inclusion of the CCT/M7 Statements in AECOM Australia's Consented Material;
(d) further says that it would have been a source of confusion or potential confusion, and would have been misleading or likely to mislead, to have included the CCT/M7 Statements in AECOM Australia's Consented Material or, in the alternative, at least without an additional clarifying explanation as to why neither the CCT or the M7 were meaningfully comparable to the NSBT (the Further CCT/M7 Clarifying Statement);
(e) denies that including the CCT/M7 Statements, together with any Further CCT/M7 Clarifying Statement, might reasonably have been expected to have a material influence on the decision making of a Potential RCM Stapled Unit Acquirer;
(f) says that it would not have been reasonable for a Potential RCM Stapled Unit Acquirer to expect to find information on the performance of either the CCT or the M7 in AECOM Australia's Consented Material in all of the circumstances, including given:
(i) that neither the CCT nor the M7 were meaningfully comparable to the NSBT;
(ii) the nature and complexity of traffic modelling and forecasting;
(iii) disclosures made in both AECOM Australia's Consented Material, and otherwise in the PDS, as to the nature and complexity of, and the numerous obvious risks, inherent risks and intrinsic uncertainties associated with, traffic modelling and forecasting; and
(iv) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia's traffic forecasting methodology and its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report.
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188
141. In further answer to paragraph 28(f) of the SFASOC, AECOM Australia denies that it
used a “consistent set of favourable assumptions and inputs”, insofar as it understands
the allegation to be that AECOM Australia only used assumptions and inputs which
individually or collectively produced the highest possible traffic forecast regardless of
merit.
142. In further answer to paragraph 28(g) of the SFASOC, AECOM Australia refers to and
repeats its response at paragraph 141 herein.
143. In further answer to paragraph 28(h) of the SFASOC, AECOM Australia:
(a) admits that AECOM Australia's Consented Material did not contain the Feeder Roads 2005 Off-Peak Congestion Statement;
(b) says that the PDS expressly stated at page 6 that “it is forecast that by 2010 sections of the key feeder roads (Pacific Motorway, Lutwyche Road, Inner City Bypass and Newmarket Road) will be running at more than 95% capacity during peak periods” (the Key Feeder Roads Peak Congestion Statement), from which it was clear that feeder roads for the NSBT were not fully congested in off-peak periods in 2005;
(c) denies that the Feeder Roads 2005 Off-Peak Congestion Statement might reasonably have been expected to have a material influence on the decision making of a Potential RCM Stapled Unit Acquirer given the fact, and obvious effect, of the Key Feeder Roads Peak Congestion Statement; and
(d) further says that it would not have been reasonable for a Potential RCM Stapled Unit Acquirer to expect to find the Feeder Roads 2005 Off-Peak Congestion Statement in all of the circumstances given:
(i) the Key Feeder Roads Peak Congestion Statement contained on page 6 of the PDS; and
(ii) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia’s traffic forecasting methodology and its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report.
144. In further answer to paragraph 28(i) of the SFASOC, AECOM Australia:
(a) denies that the traffic forecast prepared by AECOM Australia for the BCC’s "Feasibility Study and Environmental Impact Statement" in November 2004 stated that the notional daily capacity of the NSBT was 95,000 cars;
(b) says that the traffic forecast prepared by AECOM Australia for the BCC’s "Feasibility Study and Environmental Impact Statement" in November 2004 stated that the notional daily capacity of the Possible NSBT was 95,000 cars;
(c) says that the Summary Letter expressly stated that the Forecasts were made upon the assumption that the ultimate design of the NSBT would deliver the capacity required to carry the flows predicted in the Forecasts (the 2006 Summary Letter NSBT Capacity Statement);
(d) says that it would have been a source of confusion or potential confusion, and would have been misleading or likely to mislead, to have included the 2004 EIS Possible NSBT Notional Capacity Statement in AECOM Australia's Consented Material; and
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(e) denies that the 2004 EIS Possible NSBT Notional Capacity Statement might reasonably have been expected to have a material influence on the decision making of a Potential RCM Stapled Unit Acquirer given the fact, and obvious effect, of the 2006 Summary Letter NSBT Capacity Statement; and
(f) further says that it would not have been reasonable for a Potential RCM Stapled Unit Acquirer to expect to find the 2004 EIS Possible NSBT Notional Capacity Statement in AECOM Australia's Consented Material in all of the circumstances, given:
(i) the 2006 Summary Letter NSBT Capacity Statement; and
(ii) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia's traffic forecasting methodology and its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report.
145. In further answer to paragraph 28(j) of the SFASOC, AECOM Australia:
(a) says that the Summary Letter included the 2006 Summary Letter NSBT Capacity Statement;
(b) denies that AECOM Australia's Consented Material does not make any reference to the risks associated with NSBT capacity and says that the Summary Letter expressly stated that traffic volumes could be affected by NSBT capacity (the Further Summary Letter NSBT Capacity Statement);
(c) denies that there was any other information that might reasonably be expected to have a material influence on the decision of a Potential RCM Stapled Unit Acquirer, given the 2006 Summary Letter NSBT Capacity Statement and the Further Summary Letter NSBT Capacity Statement; and
(d) further says that it would not have been reasonable for a Potential RCM Stapled Unit Acquirer to expect to find anything more on this topic in AECOM Australia's Consented Material in all of the circumstances given:
(i) the 2006 Summary Letter NSBT Capacity Statement and the Further Summary Letter NSBT Capacity Statement in the Summary Letter;
(ii) the nature and complexity of traffic modelling and forecasting;
(iii) disclosures made in both AECOM Australia's Consented Material, and otherwise in the PDS, as to the nature and complexity of, and the numerous obvious risks, inherent risks and intrinsic uncertainties associated with, traffic modelling and forecasting; and
(iv) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia’s traffic forecasting methodology and its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report.
146. In further answer to paragraph 28(k) of the SFASOC, AECOM Australia:
(a) admits that AECOM Australia's Consented Material did not contain the 2005 Three EIS Bridges Through Trips Statement;
(b) denies that AECOM Australia's Consented Material contains any statement as to the percentage of through trips over the Three EIS Bridges;
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(c) denies that the PDS otherwise states that 75% of traffic using the Three EIS Bridges are through trips;
(d) says that the 2005 Three EIS Bridges Through Trips Statement was a statement by AECOM Australia:
(i) made in or about January 2005;
(ii) as to its estimate of the percentage of trips across the Three EIS Bridges which did not commence or end in the “Inner City Precinct”, including the Brisbane CBD, Fortitude Valley, New Farm, Teneriffe and parts of Kangaroo Point (the EIS Inner City Precinct); and
(iii) was derived from the then most recent (1992) South East Queensland Household Travel Survey data;
(e) says that, by contrast, the statements as to percentage through trips which appear on pages 4 and 32 of the PDS are statements by RCMML or, in the alternative, RCM Services:
(i) made in June 2006;
(ii) in respect of Story Bridge, William Jolly Bridge, Captain Cook Bridge and Victoria Bridge (the Four PDS Bridges), rather than the Three EIS Bridges;
(iii) relating to trips which do not commence or end in the Brisbane CBD, rather than what is the larger EIS Inner City Precinct; and
(iv) were derived from more recent (2003) South East Queensland Household Travel Survey data which had not been issued by the time that AECOM Australia made the 2005 Three EIS Bridges Through Trips Statement in or about January 2005;
(f) further says that it would have been a source of confusion or potential confusion, and would have been misleading or likely to mislead, to have included the 2005 Three EIS Bridges Through Trips Statement in AECOM Australia's Consented Material or, in the alternative, at least without an additional clarifying explanation as to why an estimate of the percentage of trips across the Three EIS Bridges which did not commence or end in the larger EIS Inner City Precinct made in 2005 using 1992 household travel survey data was not meaningfully comparable to an estimate of the percentage of trips across the Four PDS Bridges which did not commence or end in the smaller Brisbane CBD area made in 2006 using 2003 household travel survey data (the Further Through Trips Clarifying Statement);
(g) denies that including the 2005 Three EIS Bridges Through Trips Statement, together with any Further Through Trips Clarifying Statement, might reasonably have been expected to have a material influence on the decision making of a Potential RCM Stapled Unit Acquirer; and
(h) further says that it would not have been reasonable for a Potential RCM Stapled Unit Acquirer to expect to find the 2005 Three EIS Bridges Through Trips Statement in AECOM Australia's Consented Material given:
(i) the nature and complexity of traffic modelling and forecasting;
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(ii) disclosures made in both AECOM Australia's Consented Material, and otherwise in the PDS, as to the nature and complexity of, and the numerous obvious, inherent risks and intrinsic uncertainties associated with, traffic modelling and forecasting;
(iii) the fact that including the 2005 Three EIS Bridges Through Trips Statement would have required the inclusion of the Further Through Trips Clarifying Statement in order to properly reflect the fact that AECOM Australia's Earlier EIS Forecasts and the Forecasts were not meaningfully comparable and so as to avoid AECOM Australia's Consented Material causing confusion or potential confusion or being misleading or likely to mislead; and
(iv) the stated scope and purpose of the Summary Letter, being that it was only a summary of AECOM Australia's traffic forecasting methodology and its resultant traffic forecast for the Base Case documented in the May 2006 Traffic Report.
147. In further answer to paragraph 28(l) of the SFASOC, AECOM Australia:
(a) refers to and repeats its response at paragraph 146 herein; and
(b) says that, in all of those circumstances, the reference contended for in paragraph 28(l) of the SFASOC would have been based on a false premise and been false, misleading or likely to mislead if included in AECOM Australia's Consented Material.
148. In further answer to paragraph 28(m) and paragraph 28(n) of the SFASOC, AECOM
Australia:
(a) says that it was clear from AECOM Australia's Consented Material, and other parts of the PDS, that:
(i) the May 2006 Traffic Report and the Forecasts were prepared by AECOM Australia in connection with a competitive bid to the BCC for the NSBT Concession; and
(ii) AECOM Australia would be paid a maximum fee of up to $2.5 million in respect of that work,
(together, the AECOM Australia Bid and Retainer Statements);
(b) admits that AECOM Australia's retainer included AECOM Australia's Retainer Discount;
(c) admits that AECOM Australia's Consented Material did not state that AECOM Australia's retainer included AECOM Australia's Retainer Discount;
(d) denies that this was information that might reasonably have been expected to have a material influence on the decision making of a Potential RCM Stapled Unit Acquirer in all of the circumstances given:
(i) the AECOM Australia Bid and Retainer Statements;
(ii) that it was at least highly probable, if not virtually certain, by no later than the date of the PDS, that financial close would, in fact, be achieved, so that it was at least highly likely, if not virtually certain, as at that date, that
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AECOM Australia's retainer would be payable to AECOM Australia without AECOM Australia's Retainer Discount; and
(iii) it was expressly disclosed in the Summary Letter that AECOM Australia anticipated further engagements in respect of the NSBT in relation to the provision of engineering and environmental consultancy services if financial close was achieved and that some of these assignments could result in significant fees for AECOM Australia.
148A. In further answer to paragraph 28(na) of the SFASOC, AECOM Australia:
(a) says that it was clear from Summary Letter that:
(i) AECOM Australia had been engaged, by or on behalf of the RCM
Consortium, to produce AECOM Australia's Traffic Forecasts, and a full
traffic report in relation to those forecasts (being the May 2006 Traffic
Report);
(ii) AECOM Australia had been requested, and directed, by the directors of
RCMML, to prepare a letter summarising AECOM Australia’s traffic
forecasting methodology and its resultant traffic forecasts for the Base
Case forecast documented in the May 2006 Traffic Report for inclusion in
the PDS;
(iii) the Summary Letter was that letter;
(iv) AECOM Australia's traffic forecasts for the Base Case scenario
summarised and described in the Summary Letter were traffic forecasts
for only one of two such scenarios reviewed and reported by AECOM
Australia;
(v) AECOM Australia had utilised various and different assumptions in the
preparation of its traffic forecasts for the Base Case and Bank Case
scenarios, which were summarised in the Summary Letter and discussed
in detail in the May 2006 Traffic Report;
(vi) RCMML considered the Base Case forecast to be the most appropriate
traffic forecast; and
(vii) AECOM Australia believed the forecast Base Case traffic volumes to be
based on sound inputs and appropriate modelling processes, and
reasonable for the assumptions made in that modelling; and
(b) denies that there was any other information in respect of the matters in paragraph
28(na) of the SFASOC that might reasonably be expected to have a material
influence on the decision of a Potential RCM Stapled Unit Acquirer, and, or in the
alternative, that it would have been reasonable, in all of the circumstances, for a
Potential RCM Stapled Unit Acquirer to expect to be provided with any other
information in respect of those matters, given:
(i) the nature and complexity of traffic modelling and forecasting, including
the number and nature of assumptions and inputs utilised therein; and
(ii) disclosures made in both AECOM Australia's Consented Material, and
otherwise in the PDS as to:
(A) the matters alleged in paragraph 148A(a)(i) - (vii) herein;
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193
(B) the number, nature and complexity of, and the numerous obvious
risks, inherent risks and intrinsic uncertainties associated with,
traffic modelling and forecasting (including the various
assumptions and inputs utilised therein); and
(C) the stated scope and purpose of the Summary Letter, being that it
was only a summary of AECOM Australia’s traffic forecasting
methodology and its resultant traffic forecast for the Base Case
documented in the May 2006 Traffic Report.
149. In further answer to paragraph 28(o) of the SFASOC, AECOM Australia says that:
(a) the Inner City Bypass was not reasonably expected to provide direct or material
competition, of itself, to the NSBT in all of the circumstances, in circumstances
where the Inner City Bypass does not, itself, cross the Brisbane River;
(b) if and to the extent that it was to be reasonably expected that the Inner City
Bypass would indirectly contribute to any material competition to the NSBT (which
is not admitted) then it was as a feeder route to the Captain Cook Bridge
Brisbane River crossing;
(c) both the Summary Letter and the PDS clearly and sufficiently identified the
Captain Cook Bridge as a competitor to the NSBT so as to render any separate
disclosure or statements as to any role the Inner City Bypass played as a feeder
route to the Captain Cook Bridge immaterial and unnecessary;
(d) further and in the alternative to sub-paragraphs (a) - (c) above, says that it would
have been a source of confusion or potential confusion, and would have been
misleading or likely to mislead, to have included the Inner City Bypass Statement
without an additional clarifying explanation of the matters alleged in sub-
paragraphs (a) - (c) above (the Further Inner City Bypass Clarifying
Statement) so as to avoid AECOM Australia's Consented Material causing
confusion or potential confusion or being misleading or likely to mislead;
(e) denies that a combination of the Inner City Bypass Statement, together with any
Further Inner City Bypass Clarifying Statement, might reasonably have been
expected to have had a material influence on the decision making of a Potential
RCM Stapled Unit Acquirer in all of the circumstances; and
(f) further says that it would not have been reasonable for a Potential RCM Stapled
Unit Acquirer to expect to find the Inner City Bypass Statement in AECOM
Australia's Consented Material in all of the circumstances, given:
(i) the nature and complexity of traffic modelling and forecasting;
(ii) disclosures made in both AECOM Australia's Consented Material, and
otherwise in the PDS, as to the competition which the Captain Cook
Bridge was expected to provide to the NSBT and otherwise as to the
nature and complexity of, and the numerous obvious risks, inherent risks
and intrinsic uncertainties associated with, traffic modelling and
forecasting;
(iii) the fact that including an Inner City Bypass Statement would have
required the inclusion of the Further Inner City Bypass Clarifying
Statement so as to avoid AECOM Australia's Consented Material causing
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194
confusion or potential confusion or being misleading or likely to mislead;
and
(iv) the stated scope and purpose of the Summary Letter, being that it was
only a summary of AECOM Australia’s traffic forecasting methodology and
its resultant traffic forecast for the Base Case documented in the May
2006 Traffic Report.
150. In further answer to paragraph 28(p) of the SFASOC, AECOM Australia:
(a) repeats sub-paragraphs 138(a) - (f) herein;
(b) says that it would have been a source of confusion or potential confusion, and
would have been misleading or likely to mislead, to have included a statement
regarding estimated off peak period travel time savings as assessed only in the
course of deriving AECOM Australia's Earlier EIS Forecasts (the EIS Off Peak
Time Saving Statement) in circumstances where:
(i) AECOM Australia's Earlier EIS Forecasts and the Forecasts were not
meaningfully comparable, given that AECOM Australia's Earlier EIS
Forecasts were made in respect of the Possible NSBT using the Older
EIS Information while AECOM Australia's later Forecasts were made in
respect of the NSBT using the Later RCM Information; and
(ii) the Forecasts were prepared using AM Peak modelling because it
provided a better basis for NSBT traffic modelling for the base year in
Brisbane in all of the circumstances;
(c) further and in the alternative to sub-paragraph (b) above, says that it would have
been a source of confusion or potential confusion, and would have been
misleading or likely to mislead, to have included the EIS Off Peak Time Saving
Statement without an additional clarifying explanation of the matters alleged in
sub-paragraph (b) above (the Further EIS Off Peak Time Saving Clarifying
Statement) in order to properly reflect the fact that AECOM Australia's Earlier EIS
Forecasts and the Forecasts were not meaningfully comparable and so as to
avoid AECOM Australia's Consented Material causing confusion or potential
confusion or being misleading or likely to mislead;
(d) denies that a combination of the EIS Off Peak Time Saving Statement, together
with any Further EIS Off Peak Time Saving Clarifying Statement, might
reasonably have been expected to have had a material influence on the decision
making of a Potential RCM Stapled Unit Acquirer in all of the circumstances; and
(e) further says that it would not have been reasonable for a Potential RCM Stapled
Unit Acquirer to expect to find any EIS Off Peak Time Saving Statement in
AECOM Australia's Consented Material in all of the circumstances, given:
(i) the matters set out in sub-paragraphs 138(a) - (f) herein;
(ii) the nature and complexity of traffic modelling and forecasting;
(iii) disclosures made in both AECOM Australia's Consented Material, and
otherwise in the PDS, as to the nature and complexity of, and the
numerous obvious risks, inherent risks and intrinsic uncertainties
associated with, traffic modelling and forecasting;
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195
(iv) the fact that including the EIS Off Peak Time Saving Statement would
have required the inclusion of the Further EIS Off Peak Time Saving
Clarifying Statement so as to avoid AECOM Australia's Consented
Material causing confusion or potential confusion or being misleading or
likely to mislead; and
(v) the stated scope and purpose of the Summary Letter, being that it was
only a summary of AECOM Australia’s traffic forecasting methodology and
its resultant traffic forecast for the Base Case documented in the May
2006 Traffic Report.
Alleged Contraventions by AECOM Australia
151. As to paragraph 29 of the SFASOC, AECOM Australia:
(a) refers to and repeats its denials in paragraphs 134(d), (m) and (n) herein that the statements attributed to AECOM Australia in sub-paragraphs (b), (e) and (f) respectively of paragraph 27 of the SFASOC were AECOM Australia's Consented Material; and
(b) otherwise admits that it consented to the inclusion of AECOM Australia's Consented Material in the PDS pursuant to section 1013K of the Corporations Act.
152. As to paragraph 30 of the SFASOC, AECOM Australia:
(a) denies that sections 1013C and 1013E of the Corporations Act require a PDS to contain any other information that might reasonably be expected to have a material influence on the decision of a reasonable person whether to acquire RCM Stapled Units;
(b) says, instead, that sections 1013C and 1013E of the Corporations Act require a PDS to contain all other information that might reasonably be expected to have a material influence on the decision of a reasonable person, as a retail client, whether to acquire RCM Stapled Units other than information which it would not be reasonable for such a person to expect to find in a PDS; and
(c) does not know and therefore cannot admit that sections 1013C and 1013E of the Corporations Act imposed any obligation upon AECOM Australia to provide any other information in AECOM Australia's Consented Material.
153. AECOM Australia denies paragraph 31 of the SFASOC and refers to and repeats
paragraphs 132 - 134 herein in answer to paragraphs 25 - 27 of the SFASOC.
154. AECOM Australia denies paragraph 32 of the SFASOC and refers to and repeats
paragraphs 135 - 148 herein in answer to paragraph 28 of the SFASOC.
155. As to paragraph 33 of the SFASOC, AECOM Australia:
(a) denies that it made the Misleading Statements and refers to and repeats paragraphs 132 - 134 herein in answer to paragraph 25 - 27 of the SFASOC;
(b) denies that there were Omissions and refers to and repeats paragraphs 135 - 148 herein in answer to paragraph 28 of the SFASOC; and
(c) says, in the alternative to (a) and (b) that if, which is denied, there were Misleading Statements and, or in the alternative, Omissions, it denies that they were, either separately or in combination, materially adverse from the point of
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196
view of a Potential RCM Stapled Unit Acquirer for the purposes of section 1021L(1)(c) of the Corporations Act; and
(d) otherwise denies paragraph 33.
156. AECOM Australia denies paragraph 34 of the SFASOC.
157. In further answer to paragraph 34 of the SFASOC in respect of each Class Member,
AECOM Australia:
(a) denies that AECOM Australia's Consented Material contained Misleading Statements and refers to and repeats paragraphs 132 - 134 herein in answer to paragraphs 25 - 27 of the SFASOC;
(b) denies there were Omissions from AECOM Australia's Consented Material and refers to and repeats paragraphs 135 - 148 herein in answer to paragraph 28 of the SFASOC;
(c) denies that the Forecasts were significantly inflated and refers to and repeats paragraphs 133 and 134 herein;
(d) does not know and therefore cannot admit whether any Class Member relied upon AECOM Australia's Consented Material as alleged or at all;
(e) does not know and therefore cannot admit that any Class Member acquired RCM Stapled Units;
(f) says that if, which is not known and therefore cannot be admitted, any Class Member acquired RCM Stapled Units:
(i) it does not know and therefore cannot admit that any Class Member would not have acquired those RCM Stapled Units but for their reliance on AECOM Australia's Consented Material; and
(ii) it does not know and therefore cannot admit that any Class Member has suffered loss or damage;
(g) says that if, which is not known and therefore cannot be admitted, any Class Member has suffered loss or damage it denies that the Class Member has suffered loss or damage because AECOM Australia's PDS Consent was given by AECOM Australia; and
(h) says that if, which is not known and therefore cannot be admitted, any Class Member has suffered loss or damage and if, which is denied, that Class Member suffered that loss or damage because AECOM Australia's PDS Consent was given by AECOM Australia then that loss or damage is not recoverable from AECOM Australia insofar as that such loss or damage was caused by Subsequent Adverse Factors by reason of the External Change Events Release and AECOM Australia refers to and repeats paragraphs 130 and 133(g) herein.
158. AECOM Australia denies paragraph 35 of the SFASOC and refers to and repeats
paragraphs 154 - 157 herein.
Alleged contraventions by RCMML and RCM Services
159. As to paragraphs 36 - 40 of the SFASOC, AECOM Australia:
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197
(a) refers to and repeats paragraphs 132 - 148 herein in answer to paragraphs 25 - 28 of the SFASOC; and
(b) otherwise does not plead to those paragraphs as they make no allegation against it.
Alleged negligence by AECOM Australia
160. As to paragraph 41 of the SFASOC, AECOM Australia:
(a) admits that it knew that the PDS containing AECOM Australia's Consented Material was to be provided to Potential RCM Stapled Unit Acquirers; and
(b) otherwise does not know and therefore cannot admit paragraph 41.
161. AECOM Australia denies paragraph 42 of the SFASOC.
162. In further answer to paragraph 42 of the SFASOC, AECOM Australia denies that it was
reasonably foreseeable by AECOM Australia that any Class Member would, directly or
indirectly through their advisors, rely on AECOM Australia's Consented Material, in
particular given the matters set out in paragraph 130 herein, to which AECOM Australia
refers and repeats in further answer to paragraph 42 of the SFASOC.
163. AECOM Australia denies paragraph 43 of the SFASOC.
164. In further answer to paragraph 43 of the SFASOC, AECOM Australia denies that it was
reasonable for any Class Member to, directly or indirectly through their advisors, rely on
AECOM Australia's Consented Material, in particular given the matters set out in
paragraph 157 herein, to which AECOM Australia refers and repeats in further answer to
paragraph 43 of the SFASOC.
165. AECOM Australia denies paragraph 44 of the SFASOC and refers to repeats paragraphs
160 to 164 herein in answer to paragraphs 41 to 43 of the SFASOC.
166. AECOM Australia denies paragraph 45 of the SFASOC.
167. In further answer to paragraph 45 of the SFASOC, AECOM Australia refers to and
repeats paragraphs 132 - 148 and 155(a) and (b) herein.
168. AECOM Australia denies paragraph 46 of the SFASOC.
169. In further answer to paragraph 46 of the SFASOC, AECOM Australia refers to and
repeats paragraphs 132 - 148, 155(a) and (b), 156, 157 and 160 - 167 herein.
170. In the alternative to paragraphs 160 to 169 herein, if, which is denied:
(a) AECOM Australia owed any Class Member a duty to exercise reasonable care and diligence in preparing the Summary Letter and the Forecasts;
(b) AECOM Australia failed to exercise reasonable care and diligence in preparing the Summary Letter and the Forecasts;
(c) that Class Member acquired RCM Stapled Units in reliance upon AECOM Australia's Consented Material or, in the alternative, the Summary Letter and the Forecasts; and
(d) that Class Member suffered loss or damage as a result (Class Member Negligence Loss),
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198
(an AECOM Australia Negligence Claim) then:
(e) any Class Member Negligence Loss actually suffered by reason thereof by any Class Member was not suffered by reason of the negligent conduct of AECOM Australia, but by reason of subsequent events which were beyond the control and responsibility of AECOM Australia (in particular the Subsequent Adverse Factors) and AECOM Australia refers to and repeats paragraph 133(g) herein;
(f) further, or in the alternative, to sub-paragraph (e) above, any Class Member Negligence Loss actually suffered by any Class Member was not suffered by reason of the negligent conduct of AECOM Australia, but solely by reason of that Class Member’s own failure to take reasonable care, in particular having regard to what that Class Member knew or ought to have known at the time of investing;
(g) in the alternative to sub-paragraphs (e) and (f) above:
(i) any Class Member Negligence Loss actually suffered by the Class Member is economic loss or damage which was not suffered solely by reason of the negligent conduct of AECOM Australia, but was contributed to by the failure of the Class Member to take reasonable care, in particular having regard to what that Class Member knew or ought to have known at the time of investing; and
(ii) by reason thereof, the amount of Class Member Negligence Loss that the Class Member can claim against AECOM Australia should be reduced to the extent to which the Court thinks just and equitable having regard to that Class Member's share of responsibility for that loss or damage pursuant to:
(A) section 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) and, or in the alternative, sections 5R and 5S of the Civil Liability Act 2002 (NSW) (the NSW Contributory Negligence Acts) as the relevant procedural law of the forum; or, in the alternative;
(B) that statute of the place where that Class Member's AECOM Australia Negligence Claim accrued as a cause of action which provides for the reduction of an award of damages by reason of the claimant’s contributory negligence or other failure to take reasonable care, being:
1. the NSW Contributory Negligence Acts, where a Class Member's cause of action arose in New South Wales;
2. the Wrongs Act 1958 (Vic), where a Class Member's cause of action arose in Victoria;
3. the Law Reform Act 1995 (Qld) and, or in the alternative, the Civil Liability Act 2003 (Qld), where a Class Member's cause of action arose in Queensland;
4. the Wrongs Act 1954 (Tas) and, or in the alternative, the Civil Liability Act 2002 (Tas), where a Class Member's cause of action arose in Tasmania;
5. the Civil Liability Act 1936 (SA) and the Law Reform (Contributory Negligence and Apportionment of Liability)
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199
Act 2001 (SA), where a Class Member's cause of action arose in South Australia;
6. the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) and the Civil Liability Act 2002 (WA), where a Class Member's cause of action arose in Western Australia;
7. the Civil Law (Wrongs) Act 2002 (ACT), where a Class Member's cause of action arose in the Australian Capital Territory; and
8. the Law Reform (Miscellaneous Provisions) Act 1956 (NT), where a Class Member alleges that the cause of action arose in the Northern Territory.
171. Further, and in answer to the whole of the SFASOC, if, which is denied, any Class
Member is otherwise entitled to recover loss or damage from AECOM Australia pursuant
to section 1022B(2) of the Corporations Act, (a Corporations Act Claim) or pursuant to
the AECOM Australia Negligence Claim, then AECOM Australia says that:
(a) that Class Member is a person who relied upon information contained in the Summary Letter within the meaning of the External Change Events Release;
(b) AECOM Australia and that Class Member thereby became contractually bound to an agreement, by course of conduct, which requires that Class Member accept full responsibility, and hold AECOM Australia harmless, for the impacts on the Forecasts or the earnings of the NSBT of External Change Events (the External Change Events Contract);
(c) the Subsequent Adverse Factors were External Change Events;
(d) by reason thereof, the Class Member has released AECOM Australia from any Corporations Act Claim and any AECOM Australia Negligence Claim (together, the Class Member's Claims) to which it might otherwise be entitled;
(e) further, or in the alternative, to sub-paragraph (d) above, the Class Member is required by the External Change Events Contract to indemnify AECOM Australia in respect of any liability AECOM Australia might otherwise have to the Class Member in respect of, or arising out of, the Class Member's Claims; and
(f) further, or in the alternative, to sub-paragraph (e) above:
(i) the Class Member's actions in seeking loss or damage from AECOM Australia in respect of the Class Member's Claims and in commencing and pursuing these proceedings breach the External Change Events Contract;
(ii) AECOM Australia has suffered, and will continue to suffer loss or damage; by reason of those breaches, which AECOM Australia is entitled to recover from the Class Member (Proceedings Damages);
(iii) any recovery by the Class Member against AECOM Australia on account of the Class Member's Claims (a Class Member's Claims Recovery) would amount to a further breach of the External Change Events Contract which would entitle AECOM Australia to recover the equivalent amount from that Class Member (Recovery Damages); and
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200
(iv) AECOM Australia is entitled to set-off its Proceedings Damages, and will be entitled to set-off its Recovery Damages, in full, against any Class Member's Claims Recovery.
Part D. AECOM Australia's Apportionment Defences
201
Part D. AECOM Australia's Apportionment Defences
Introduction
172. The Applicants allege against AECOM Australia (which is denied) that:
(a) the Forecasts were representations with respect to future matters, substantially
overestimated the annual average daily traffic volumes using the NSBT, were
misleading or deceptive and made without reasonable grounds (paragraphs 25
and 26 of the SFASOC);
(b) AECOM Australia's Consented Material contained further misleading or deceptive
statements by reason of the matters alleged in sub-paragraphs 27(a) - (fg) of the
SFASOC;
(c) there were Omissions from AECOM Australia's Consented Material as alleged in
sub-paragraphs 28(aa) - (p) of the SFASOC;
(c) (cac) AECOM Australia held, as at the date of the Summary Letter and/or at the
date of the publication of the PDS, the 28(aa) Beliefs; and
(d) AECOM Australia failed to exercise reasonable care and diligence in preparing
the Summary Letter and the Forecasts in breach of a duty owed to the Applicants
and Potential RCM Stapled Unit Acquirers (paragraphs 44 and 45 of the
SFASOC),
(together, AECOM Australia's Alleged Wrongful Acts).
173. The Applicants further allege against AECOM Australia (which is also denied) that:
(a) each of the alleged Misleading Statements and the alleged Omissions, and
AECOM Australia's alleged holding of the 28(aa) Beliefs, either separately or in
combination, would be materially adverse from the point of view of a reasonable
person considering whether to acquire RCM Stapled Units for the purposes of
section 1021L(i)(c) of the Corporations Act (paragraph 33 of the SFASOC) and
each Class Member is entitled to recover loss or damage suffered by reason
thereof from AECOM Australia (Class Member Corporations Act Loss)
(paragraph 35 of the SFASOC); and
(b) each of the Class Members have suffered Class Member Negligence Loss
because AECOM Australia gave AECOM Australia's PDS Consent and because
it failed to exercise reasonable care and diligence in preparing the Summary
Letter and the Forecasts in breach of a duty owed to the Applicants and Potential
RCM Stapled Unit Acquirers (paragraphs 34 and 46 SFASOC).
174. If, which is denied, any Class Member has suffered Class Member Corporations Act Loss
and, or in the alternative, Class Member Negligence Loss by reason of AECOM
Australia's Alleged Wrongful Acts so as to be entitled to a Corporations Act Claim and, or
in the alternative, a AECOM Australia Negligence Claim against AECOM Australia then
each of the Corporations Act Claim and the AECOM Australia Negligence Claim or, in the
alternative, the AECOM Australia Negligence Claim, made against AECOM Australia in
the Originating Application on behalf of each Class Member is a claim for economic loss
arising from a duty to take reasonable care and thereby an apportionable claim.
Part D. AECOM Australia's Apportionment Defences
202
Particulars
Liability in respect of a Corporations Act Claim and, or in the alternative,
AECOM Australia Negligence Claim is apportionable under the following
legislation as it may apply to a particular Class Member entitled to a
Corporations Act Claim and, or in the alternative, an AECOM Australia
Negligence Claim against AECOM Australia (which entitlement is denied):
1. Civil Liability Act 2002 (NSW), Part 4; or, in the alternative
2. Wrongs Act 1958 (Vic) Part IVAA, sections 24AE to 24AS; or, in the alternative
3. Civil Liability Act 2003 (Qld), Part 2, sections 28 to 33; or, in the alternative
4. Civil Liability Act 2002 (WA), Part 1F, sections 5AI to 5AO; or, in the alternative
5. Civil Law (Wrongs) Act 2002 (ACT), Chapter 7A, sections 107A to 107K; or, in the alternative
6. Proportionate Liability Act 2005 (NT); or, in the alternative
7. Civil Liability Act 2002 (Tas), Part 9A, sections 43A to 43G; or, in the alternative
8. Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), Part 3, sections 8 to 11; and
9. in relation to any Corporations Act Claim, the Judiciary Act 1903 (Cth), section 79
(hereinafter, each of the Acts identified in the particulars to this paragraph,
insofar as they apply to a particular Corporations Act Claim and, or in the
alternative, AECOM Australia Negligence Claim is referred to as the
Apportionment Legislation);
175. AECOM Australia makes the allegations in Part D of this TFAD4FAD (AECOM
Australia's Apportionment Defences):
(a) without derogating from AECOM Australia's response to the Applicants'
allegations made in Part C of this TFAD4FAD (paragraphs 108 - 171 herein);
(b) without admission of any liability to any Class Member by either AECOM Australia
or any other persons or entities; and
(c) only for the purposes of AECOM Australia's defence insofar as it relates to the
reduction of any liability AECOM Australia may be found to have to any Class
Member for any Class Member Corporations Act Loss and, or in the alternative,
Class Member Negligence Loss so as to reflect the proportion of loss the Court
considers just having regard to the responsibility of any other persons or entities
for that Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss.
Part D. AECOM Australia's Apportionment Defences
203
176. Further to paragraph 175 herein, for the purposes of AECOM Australia's Apportionment
Defences, AECOM Australia's allegations with respect to any one person or entity in Part
D of this TFAD4FAD:
(a) refer to and repeat the entirety of the allegations made by AECOM Australia in
Part B of this TFAD4FAD (being paragraphs 1 – 107 herein), in circumstances in
which:
(i) the Apportionment Legislation provides for the possibility of a reduction of
any liability AECOM Australia may be found to have to a Class Member
for any Class Member Corporations Act Loss and, or in the alternative,
Class Member Negligence Loss so as to reflect the proportion(s) of loss
the Court considers "just" having regard to any responsibility any other
persons or entities may also have for that Class Member Corporations Act
Loss and, or in the alternative, Class Member Negligence Loss, including
vis a vis each other; and
(ii) Part B of this TFAD4FAD comprises allegations concerning the
background to the proceedings and the conduct of both that person or
entity and other persons or entities which are relevant to any finding by
the Court as to the just apportionment of responsibility for that Class
Member Corporations Act Loss and, or in the alternative, Class Member
Negligence Loss; and
(b) are made both further, and in the alternative, to allegations which are made by
AECOM Australia:
(i) in Part C of this TFAD4FAD as to any Class Member's own failure to take
reasonable care; and
(ii) in Part D of this TFAD4FAD, as to the responsibility one or more other
persons or entities may also have for any Class Member Corporations Act
Loss and, or in the alternative, Class Member Negligence Loss in respect
of Class Member Corporations Act Loss and, or in the alternative, a
AECOM Australia Negligence Claim for the purposes of AECOM
Australia's Apportionment Defences.
AECOM Australia's Apportionment Defence - NIEIR
Applicants' NIEIR Allegations
177. The Applicants allege against AECOM Australia (which is denied) that:
(a) AECOM Australia's Consented Material:
(i) made misleading or deceptive Reasonable Statements because
assumptions, Forecasts and AECOM Australia's use of assumptions were
not reasonable; and
(ii) made misleading or deceptive Sound and Appropriate Statements
because the inputs and modelling processes on which the Forecasts were
based were not sound and appropriate; and
(b) AECOM Australia failed to act with reasonable care in preparing the Summary
Letter and the Forecasts,
Part D. AECOM Australia's Apportionment Defences
204
in each case because, relevantly to this apportionment defence in relation to NIEIR,
AECOM Australia overstated the size of the market for the NSBT and misstated the
operation of Brisbane's existing road network in the event of the opening of the NSBT by
citing Demographic and Economic Forecasts which were overly optimistic with a
compound inflationary effect in order to generate forecasts of high congestion on
alternative routes to the NSBT.
Particulars
AECOM Australia refers to and repeats paragraph sub-paragraphs
27(aa), (ab) and (b) of the SFASOC and the particulars thereto.
178. The Demographic and Economic Forecasts upon which AECOM Australia relied in the
preparation of the Forecasts and AECOM Australia's Consented Material were prepared
and provided by NIEIR and comprised, or were contained within, NIEIR's Growth
Forecasts and, or in the alternative, NIEIR's Additional Statements.
NIEIR's Brisbane Forecast Duties of Care
179. At all material times:
(a) NIEIR had NIEIR's Expertise;
(b) NIEIR:
(i) had agreed and, or in the alternative, accepted that NIEIR's Work, NIEIR's
Growth Forecasts and NIEIR's Additional Statements could be relied
upon, for the purposes of forecasting future NSBT traffic volumes, by,
relevantly, each of the RCM Proceedings Applicants (by reason of their
each being RCM SPVs) and AECOM Australia;
(ii) had agreed and, or in the alternative, accepted, that NIEIR's Work,
NIEIR's Growth Forecasts and NIEIR's Additional Statements could be
relied upon by, relevantly, equity investors in connection with forecasts of
future NSBT traffic volumes;
(iii) had agreed to make presentations to Potential RCM Stapled Unit
Acquirers and, or in the alternative, to potential advisers to Potential RCM
Stapled Unit Acquirers regarding NIEIR's Work and NIEIR's Growth
Forecasts;
(iv) made NIEIR's Additional Statements to the RCM Consortium, to AECOM
Australia and to Potential RCM Stapled Unit Acquirers and, or in the
alternative, to advisers or potential advisers to Potential RCM Stapled Unit
Acquirers, in a presentation regarding NIEIR's Work and NIEIR's Growth
Forecasts; and
Particulars
1. AECOM Australia refers to and repeats paragraph 18 herein and the
particulars thereto
2. AECOM Australia refers to and repeats paragraph 43 herein and sub-
paragraphs 2(c) and (d) of the particulars thereto.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
Part D. AECOM Australia's Apportionment Defences
205
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
(c) further and in the alternative to sub-paragraph (b)(i) above in relation to the RCM
Proceedings Applicants:
(i) NIEIR knew or, in the alternative, ought to have known, and it was
reasonably foreseeable, that a limited class comprising RCM SPVs would,
or were, likely to depend and, or in the alternative, rely, upon NIEIR's
Work, NIEIR's Growth Forecasts and NIEIR's Additional Statements in
deciding whether to submit an NSBT Project Bid and, or in the alternative,
take any subsequent action in furtherance of the NSBT Project (RCM
NSBT Steps); and, or in the alternative
(ii) NIEIR knew or, in the alternative, ought to have known, and it was
reasonably foreseeable, that:
(A) a limited class comprising RCM SPVs would, or were likely to,
depend and, or in the alternative, rely upon AECOM Australia's
NSBT Work and AECOM Australia's forecasts of future NSBT
traffic volumes arising from AECOM Australia's NSBT Work in
deciding whether, between them, to submit an NSBT Project Bid
and, or in the alternative, take RCM NSBT Steps; and, in turn
(B) AECOM Australia would, or was likely to, rely upon NIEIR's Work,
NIEIR's Growth Forecasts and NIEIR's Additional Statements in
undertaking AECOM Australia's NSBT Work;
(iii) by no later than 7 December 2005 and before any NSBT Project Bid was
submitted:
(A) NIEIR knew or, in the alternative, ought to have known that the
Non-Tolling RCM Proceedings Applicants were RCM SPVs which
had been registered in order, between them, to submit an NSBT
Project Bid and, or in the alternative, take RCM NSBT Steps; and
(B) it was reasonably foreseeable by NIEIR that one or more
additional RCM SPVs would, or reasonably might, be registered to
also take RCM NSBT Steps;
(iv) it was reasonable for the RCM Proceedings Applicants, or a limited class
comprising RCM SPVs which became the RCM Proceedings Applicants,
to rely, and act, upon NIEIR's Work, NIEIR's Growth Forecasts and
NIEIR's Additional Statements in deciding whether, between them, to
submit an NSBT Project Bid and, or in the alternative, take RCM NSBT
Steps; and
(v) there was a not insignificant risk, it was reasonably foreseeable, and
NIEIR knew, or ought to have known, that NIEIR's Work, NIEIR's Growth
Forecasts and NIEIR's Additional Statements would, or in the alternative,
may have been likely to, cause loss or damage to the RCM Proceedings
Applicants, or a limited class comprising RCM SPVs which became the
RCM Proceedings Applicants, if not undertaken with the skill, care and
diligence that could reasonably be expected of a specialist with NIEIR's
Expertise and knowledge or, in the alternative, with due skill, care and
diligence, or in the alternative, with reasonable skill, care and diligence;
Part D. AECOM Australia's Apportionment Defences
206
(d) further and in the alternative to sub-paragraph (b)(i) above in relation to AECOM
Australia:
(i) NIEIR had agreed to undertake NIEIR's Work so as to enable AECOM
Australia to undertake AECOM Australia's NSBT Work acting for the
Sponsor Clients and a limited class comprising RCM SPVs to forecast
future NSBT traffic volumes; and, or in the alternative
(ii) NIEIR knew or, in the alternative, ought to have known, and it was
reasonably foreseeable, that AECOM Australia depended upon and
would, or was likely to, rely upon NIEIR's Work, NIEIR's Growth Forecasts
and NIEIR's Additional Statements in undertaking AECOM Australia's
NSBT Work;
(iii) it was reasonable for AECOM Australia to rely, and, or in the alternative,
act, upon NIEIR's Work, NIEIR's Growth Forecasts and NIEIR's Additional
Statements in undertaking AECOM Australia's NSBT Work; and
(iv) there was a not insignificant risk, it was reasonably foreseeable, and
NIEIR knew, or ought to have known, that NIEIR's Work, NIEIR's Growth
Forecasts and NIEIR's Additional Statements would, or in the alternative,
may have been likely to, cause loss or damage to AECOM Australia if not
undertaken with the skill, care and diligence that could reasonably be
expected of a specialist with NIEIR's Expertise and knowledge or, in the
alternative, with due skill, care and diligence, or in the alternative, with
reasonable skill, care and diligence;
(e) further and in the alternative to sub-paragraphs (b) above in relation to the
Potential RCM Stapled Unit Acquirers:
(i) NIEIR knew or, in the alternative, ought to have known, and it was
reasonably foreseeable, that a limited class comprising Potential RCM
Stapled Unit Acquirers would, or were, likely to depend and, or in the
alternative, rely, upon NIEIR's Work, NIEIR's Growth Forecasts and
NIEIR's Additional Statements in deciding whether to acquire RCM
Stapled Units;
(ii) NIEIR knew or, in the alternative, ought to have known, and it was
reasonably foreseeable, that:
(A) a limited class comprising Potential RCM Stapled Unit Acquirers
would, or were, likely to depend and, or in the alternative, rely,
upon AECOM Australia's NSBT Work, and AECOM Australia's
forecasts of future NSBT traffic volumes arising from AECOM
Australia's NSBT Work, in deciding whether to acquire RCM
Stapled Units; and, in turn
(B) AECOM Australia would, or was likely to, rely upon NIEIR's Work,
NIEIR's Growth Forecasts and NIEIR's Additional Statements in
undertaking AECOM Australia's NSBT Work and in preparing the
Forecasts and AECOM Australia's Consented Material;
(iii) it was reasonable for a limited class comprising Potential RCM Stapled
Unit Acquirers, in deciding whether to acquire RCM Stapled Units, to
depend and, or in the alternative, rely, upon:
Part D. AECOM Australia's Apportionment Defences
207
(A) NIEIR's Work, NIEIR's Growth Forecasts and NIEIR's Additional
Statements; and, or in the alternative
(B) AECOM Australia's NSBT Work and AECOM Australia's forecasts
of future NSBT traffic volumes prepared by AECOM Australia in
reliance upon NIEIR's Work, NIEIR's Growth Forecasts and
NIEIR's Additional Statements; and
(iv) there was a not insignificant risk, it was reasonably foreseeable, and
NIEIR knew, or ought to have known, that NIEIR's Work, NIEIR's Growth
Forecasts and NIEIR's Additional Statements would, or in the alternative,
may have been likely to, cause loss or damage to a limited class
comprising Potential RCM Stapled Unit Acquirers if not undertaken with
the skill, care and diligence that could reasonably be expected of a
specialist with NIEIR's Expertise and knowledge or, in the alternative, with
due skill, care and diligence, or in the alternative, with reasonable skill,
care and diligence.
180. Further to paragraph 179 herein at all material times, in, and by reason of, the
circumstances alleged in paragraph 179 herein, NIEIR owed the limited class comprising
Potential RCM Stapled Unit Acquirers, under the general law, a duty to exercise the skill,
care and diligence that could reasonably be expected of a specialist with NIEIR's
Expertise and knowledge or, in the alternative, due skill, care and diligence, or in the
alternative, reasonable skill, care and diligence (which duties are alleged further, and in
the alternative, to each other):
(a) in the performance of NIEIR's Work;
(b) in preparing and stating NIEIR's Growth Forecasts;
(c) in considering, reaching and stating NIEIR's Additional Statements;
(d) to warn Potential RCM Stapled Unit Acquirers, the RCM Consortium and, or in
the alternative, AECOM Australia, if and insofar as it was unsafe to rely upon:
(i) NIEIR's Work, NIEIR's Growth Forecasts and NIEIR's Additional
Statements;
(ii) the Forecasts and, or in the alternative, AECOM Australia's Consented
Material, by reason of AECOM Australia's reliance upon, and use of,
NIEIR's Work, NIEIR's Growth Forecasts and NIEIR's Additional
Statements,
(together, NIEIR's Brisbane Forecast Warnings),
(hereafter these various duties are collectively referred to as NIEIR's Brisbane Forecast
Duties of Care).
NIEIR's Brisbane Forecast Representations
181. Further and in the alternative to paragraph 180 herein, by:
(a) delivering NIEIR's Growth Forecasts to the RCM Consortium, and to AECOM
Australia, as alleged in sub-paragraph 43(a) herein and in the circumstances
alleged in sub-paragraph 179(e)(ii)(A) herein, without any NIEIR's Brisbane
Forecast Warnings being given to either the limited class comprising Potential
RCM Stapled Unit Acquirers, the RCM Consortium or to AECOM Australia;
Part D. AECOM Australia's Apportionment Defences
208
(b) making NIEIR's Additional Statements to the RCM Consortium, to AECOM
Australia and, or in the alternative, the limited class comprising Potential RCM
Stapled Unit Acquirers as alleged in sub-paragraph 43(b) and 179(b)(iv) herein,
without any NIEIR's Brisbane Forecast Warnings being given to the limited class
comprising Potential RCM Stapled Unit Acquirers, the RCM Consortium or to
AECOM Australia; and, or in the alternative
(c) agreeing, or acquiescing, to the inclusion of references to NIEIR's Work, NIEIR's
Growth Forecasts and NIEIR's Additional Statements in:
(i) AECOM Australia's Traffic Reports, which NIEIR knew, or ought to have
known, would be provided to the RCM Consortium; and, or in the
alternative
(ii) the Summary Letter which NIEIR knew, or ought to have known, would be
provided to Potential RCM Stapled Unit Acquirers,
without, in either case, any NIEIR's Brisbane Forecast Warnings being given to
the limited class comprising Potential RCM Stapled Unit Acquirers, the RCM
Consortium or to AECOM Australia,
NIEIR thereby represented to the limited class comprising Potential RCM Stapled Unit
Acquirers, the RCM Consortium and, or in the alternative, AECOM Australia that:
(d) NIEIR's Work, NIEIR's Growth Forecasts and NIEIR's Additional Statements was,
or were:
(i) the product of the application, by NIEIR, of:
(A) the skill, care and diligence that could reasonably be expected of a
specialist with NIEIR's Expertise and knowledge;
(B) due skill, care and diligence; and, or in the alternative
(C) reasonable skill, care and diligence;
(ii) prepared and made by NIEIR upon reasonable grounds;
(iii) based upon, contained or comprised reasonable predictions of future
traffic growth in Brisbane after 2005; and, or in the alternative
(iv) could be safely relied upon; and, or in the alternative
(e) no NIEIR's Brisbane Forecast Warnings were required,
(NIEIR's Brisbane Forecast Representations).
182. NIEIR's Brisbane Forecast Representations were made in trade and commerce.
183. NIEIR's Brisbane Forecast Representations included representations with respect to
future matters insofar as they comprised, related to or concerned:
(a) predictions of traffic growth in Brisbane after 2005;
(b) predictions contained within NIEIR's Growth Forecasts; and, or in the alternative
(c) predictions contained within NIEIR's Additional Statements;
Part D. AECOM Australia's Apportionment Defences
209
NIEIR's Brisbane Forecast Negligence and NIEIR's Brisbane Forecast Misrepresentations
184. If and insofar as:
(a) AECOM Australia is found to have committed AECOM Australia's Alleged
Wrongful Acts in whole or in part because AECOM Australia overstated the size
of the market for the NSBT and misstated the operation of Brisbane's existing
road network in the event of the opening of the NSBT by citing Demographic and
Economic Forecasts which were overly optimistic with a compound inflationary
effect (which is denied);
(b) any Class Member relied upon AECOM Australia's Consented Material (which is
not admitted) or, in the alternative, AECOM Australia is liable to any Class
Member regardless of whether that Class Member relied upon AECOM
Australia's Consented Material (which is denied);
(c) any Class Member suffered any Class Member Corporations Act Loss and, or in
the alternative, Class Member Negligence Loss as alleged or at all (which is
denied);
(d) such Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss was caused by AECOM Australia's Alleged Wrongful
Acts (which is denied); and
(e) AECOM Australia is liable for such Class Member Corporations Act Loss and, or
in the alternative, Class Member Negligence Loss as alleged or at all (which is
denied),
then, in those circumstances:
(f) AECOM Australia only overstated the size of the market for the NSBT and
misstated the operation of Brisbane's existing road network in the event of the
opening of the NSBT by citing Demographic and Economic Forecasts in the
AECOM Australia's Consented Material which were overly optimistic with a
compound inflationary effect by reason of AECOM Australia's reliance upon
NIEIR's Work, NIEIR's Growth Forecasts, NIEIR's Additional Statements, NIEIR's
Brisbane Forecast Representations and, or in the alternative, NIEIR's failure to
give NIEIR's Brisbane Forecast Warnings;
(g) that Class Member only suffered Class Member Negligence Loss:
(i) by reason of:
(A) their reliance upon NIEIR's Work, NIEIR's Growth Forecasts,
NIEIR's Additional Statements, NIEIR's Brisbane Forecast
Representations and, or in the alternative, NIEIR's failure to give
NIEIR's Brisbane Forecast Warnings; and, or in the alternative
(B) their reliance upon the Forecasts and, or in the alternative,
AECOM Australia's Consented Material and, or in the alternative,
the Summary Letter insofar as they were prepared, and delivered,
by AECOM Australia in reliance upon NIEIR's Work, NIEIR's
Growth Forecasts and NIEIR's Additional Statements and, or in
the alternative, NIEIR's failure to give NIEIR's Brisbane Forecast
Warnings; or, in the alternative
Part D. AECOM Australia's Apportionment Defences
210
(ii) because the PDS was available to be given to, and was given or made
available to, that Class Member;
(h) in breach of NIEIR's Brisbane Forecast Duties of Care:
(i) NIEIR's Work, NIEIR's Growth Forecasts, NIEIR's Additional Statements
and NIEIR's Brisbane Forecast Representations:
(A) was, or were, not prepared, or made, by NIEIR with the skill, care
and diligence that could reasonably be expected of a specialist
with NIEIR's Expertise and knowledge or, in the alternative, due
skill, care and diligence, or in the alternative, reasonable skill, care
and diligence because they contained, or constituted,
unreasonable predictions by NIEIR of traffic growth in Brisbane
after 2005;
(B) was, or were, not made upon reasonable grounds; and
(C) could not safely be relied upon by any Potential RCM Stapled Unit
Acquirers in deciding whether to acquire RCM Stapled Units; and,
or in the alternative
(ii) NIEIR failed to give NIEIR's Brisbane Forecast Warnings to the limited
class comprising Potential RCM Stapled Unit Acquirers, the RCM
Consortium or AECOM Australia,
(together, NIEIR's Brisbane Forecast Negligence); and, or in the alternative
(i) NIEIR's Brisbane Forecast Representations were:
(i) misleading or deceptive or likely to mislead or deceive and made without
reasonable grounds (NIEIR's Brisbane Forecast Misrepresentations);
(ii) relied upon by the Class Members, the RCM Consortium and, or in the
alternative, AECOM Australia; and
(iii) made in contravention of section 52 of the TPA insofar as they were made
to the RCM Consortium and, or in the alternative, AECOM Australia; and
(j) NIEIR's Work, NIEIR's Growth Forecasts, NIEIR's Additional Statements, NIEIR's
Brisbane Forecast Negligence and, or in the alternative, NIEIR's Brisbane
Forecast Misrepresentations, caused, or in the alternative, materially contributed
to:
(i) the making of the Forecasts contained in the Summary Letter;
(ii) the inclusion of AECOM Australia's Consented Material or, in the
alternative, the Summary Letter, in the PDS;
(iii) AECOM Australia's Alleged Wrongful Acts;
(iv) the making of the NSBT Project Bid and the Revised NSBT Project Bid;
(v) the decision to undertake the RCM IPO;
(vi) the execution and delivery of RCM Documents and, or in the alternative,
the taking of other RCM NSBT Steps;
(vii) the issue and distribution of the PDS;
Part D. AECOM Australia's Apportionment Defences
211
(viii) the RCM IPO;
(ix) the Class Member's decision to acquire RCM Stapled Units;
(x) the Class Member's acquisition of RCM Stapled Units; and
(xi) any Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss,
(the NIEIR Class Member Consequences); and, or in the alternative
(k) but for NIEIR's Work, NIEIR's Growth Forecasts, NIEIR's Additional Statements,
NIEIR's Brisbane Forecast Negligence and, or in the alternative, NIEIR's Brisbane
Forecast Misrepresentations, none of the NIEIR Class Member Consequences
would have occurred.
185. If AECOM Australia has any liability to any Class Member for Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) then, by reason of the matters alleged in paragraphs 177 - 184 herein, NIEIR is
also liable to that Class Member for that Class Member Corporations Act Loss and, or in
the alternative, Class Member Negligence Loss.
186. In the premises, any liability of AECOM Australia in relation to that Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) should be reduced, under the Apportionment Legislation, to reflect that
proportion of the Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss which the Court considers just having regard to the extent of
NIEIR's responsibility for that Class Member Corporations Act Loss and, or in the
alternative, Class Member Negligence Loss.
AECOM Australia's Apportionment Defence - Peter Hicks
Hicks' PDS Duties of Care
187. At all material times:
(a) Peter Hicks:
(i) had the experience, skills and knowledge alleged in sub-paragraphs
29(b) - (d) herein;
(ii) had been appointed to each of the roles alleged in sub-paragraphs 29(e)
and (f) herein; and
(iii) had been vested with, assumed, and was exercising, Hicks' Authority and
Responsibilities in furtherance of the Joint RCM Plan; and
(b) Peter Hicks was aware that RCM NSBT Steps included the RCM IPO and that an
offer of RCM Stapled Units required a product disclosure statement;
(c) Peter Hicks had requested, and instructed, AECOM Australia to provide a letter
summarising AECOM Australia’s traffic forecasting methodology, its forecasts for
the Base Case and certain other matters for inclusion in the PDS as alleged in
paragraph 91 herein;
(d) Peter Hicks had undertaken:
Part D. AECOM Australia's Apportionment Defences
212
(i) Hicks' AECOM Australia Actions, Hicks' NIEIR Actions, Hicks' PB Actions,
Hicks’ HTS Actions, Hicks’ Beca Actions, and Hicks’ Financier and
Investor Actions;
(ii) DDC Actions and TDDSC Actions as a member of the DDC and the
TDDSC respectively and Hicks' PDS Actions so as to be a person actively
involved in the preparation of the PDS,
(together, Hicks' Total NSBT Actions);
(e) Peter Hicks was aware that the DDC had considered and accepted the TDDSC
Key Issues Report (as updated) as alleged in paragraph 87 herein by reason of
his attendance at the DDC meeting on 13 June 2006;
(f) Peter Hicks had made Hicks' First PDS Confirmation, Hicks' Second PDS
Confirmation and Hicks' Third PDS Confirmation as alleged in paragraphs 94 -
97, 101 and 102 herein respectively;
(g) Peter Hicks knew, or ought to have known:
(i) the NSBT Traffic Forecast Facts as alleged in paragraphs 68 and 69
respectively; and
(ii) the PDS Disclosure Obligation as alleged in paragraph 80 herein;
(h) Peter Hicks had Hicks' Expertise by reason of the matters alleged in paragraphs
29, 37, 45, 49, 54, 59, 63 and 64, 68, 80, 83 - 87, 91 and 92 - 94 herein;
(i) Peter Hicks knew, or ought to have known, that Mallesons had agreed to
undertake, and had undertaken, Mallesons' RCM IPO Actions;
(j) Peter Hicks knew each of the matters comprising Mallesons' Traffic Forecast
Facts;
(k) Peter Hicks knew:
(i) that the PDS would include the Summary Letter and Beca's PDS
Summary Report; and
(ii) the contents of the PDS, the Summary Letter and Beca's PDS Summary
Report;
(l) Peter Hicks knew, in accordance with the PDS Decisions, that a copy of the May
2006 Traffic Report was not to be made accessible to the limited class comprising
Potential RCM Stapled Unit Acquirers either in, or with, the PDS as issued, on the
"RiverCity Motorway" website (as proposed and requested by AECOM Australia)
or otherwise, as alleged in paragraphs 104 and 106 herein respectively;
(m) Peter Hicks knew, or ought to have known, that the limited class comprising
Potential RCM Stapled Unit Acquirers would, or likely would, rely upon:
(i) the PDS in deciding whether to acquire RCM Stapled Units; and, or in the
alternative
(ii) persons involved in the preparation of the PDS to not prepare and, or in
the alternative, not permit the issue of, a PDS which was defective within
the meaning of section 1022A of the Corporations Act and, or in the
alternative, which was not prepared with reasonable care;
Part D. AECOM Australia's Apportionment Defences
213
(n) it was reasonable for the limited class comprising Potential RCM Stapled Unit
Acquirers to so rely in deciding whether to acquire RCM Stapled Units; and
(o) there was a not insignificant risk, it was reasonably foreseeable, and Peter Hicks
knew, or ought to have known, that any failure by Peter Hicks to act with the skill,
care and diligence that could reasonably be expected of a specialist with Hicks'
Expertise or, in the alternative, with due skill, care and diligence, or in the
alternative, with reasonable skill, care and diligence, in connection with the
preparation and issue of the PDS, would, or may, have been likely to, cause
material loss or damage to any Potential RCM Stapled Unit Acquirer who
proceeded to acquire RCM Stapled Units:
(i) in reliance upon the PDS; or in the alternative
(ii) by reason of the existence of the PDS, if and insofar as reliance is not a
relevant pre-requisite to the entitlement to recover such loss or damage
(which is denied).
188. Further to paragraph 187 herein, at all material times, in, and by reason of, the
circumstances alleged in paragraph 187 herein, Peter Hicks owed the limited class
comprising Potential RCM Stapled Unit Acquirers, under the general law, a duty to
exercise the skill, care and diligence that could reasonably be expected of a specialist
with Hicks' Expertise or, in the alternative, due skill, care and diligence, or in the
alternative, reasonable skill, care and diligence (which duties are alleged further, and in
the alternative, to each other):
(a) in connection with his involvement in the preparation of the PDS;
(b) in exercising, and discharging Hicks' Authority and Responsibilities insofar as was
relevant to the preparation of the PDS;
(c) in obtaining and providing instructions, directions and other inputs, feedback and
assistance in relation to, and in reviewing, approving and accepting, each of
NIEIR's Growth Forecasts and NIEIR's Additional Statements, in circumstances
where Peter Hicks knew that AECOM Australia's Traffic Forecasts, the May 2006
Traffic Report and AECOM Australia's Consented Material would be, and were,
prepared by AECOM Australia in reliance thereon;
(d) in co-ordinating and supervising, obtaining and providing instructions, directions
and other inputs, feedback and assistance in relation to, and in reviewing,
approving and accepting:
(i) the Forecasts;
(ii) the Summary Letter;
(iii) Beca's PDS Summary Report;
(e) in undertaking Hicks' PDS Actions;
(f) in conducting and, or in the alternative, overseeing the implementation of, an
appropriate due diligence process in connection with the preparation of the PDS;
(g) in undertaking DDC Actions and TDDSC Actions as a member of the DDC and
the TDDSC respectively;
(h) to warn Potential RCM Stapled Unit Acquirers if and insofar as it was unsafe to
rely upon the PDS because it was defective within the meaning of section 1022A
Part D. AECOM Australia's Apportionment Defences
214
of the Corporations Act and, or in the alternative, was not prepared with
reasonable care, by reason of any fact, matter or circumstance known to him
(Hicks' PDS Warning),
(hereafter these various duties are collectively referred to as Hicks' PDS Duties of
Care).
Hicks' PDS Representations
189. Further and in the alternative to paragraph 188 herein:
(a) by failing to provide Hicks' PDS Warning; and, or in the alternative
(b) by being involved in the preparation of and, or in the alternative, by facilitating,
supporting and, or in the alternative, permitting the issue of, the PDS, in each
case without any Hicks' PDS Warning,
Peter Hicks thereby represented to the limited class comprising Potential RCM Stapled
Unit Acquirers:
(c) that he had exercised the skill, care and diligence that could reasonably be
expected of a specialist with Hicks' Expertise or, in the alternative, due skill, care
and diligence, or in the alternative, reasonable skill, care and diligence:
(i) in connection with his involvement in the preparation of the PDS;
(ii) in exercising, and discharging Hicks' Authority and Responsibilities insofar
as was relevant to the preparation of the PDS;
(iii) in obtaining and providing instructions, directions and other inputs,
feedback and assistance in relation to, and in reviewing, approving and
accepting, each of NIEIR's Growth Forecasts and NIEIR's Additional
Statements;
(iv) in co-ordinating and supervising, obtaining and providing instructions,
directions and other inputs, feedback and assistance in relation to, and in
reviewing, approving and accepting:
(A) the Forecasts;
(B) the Summary Letter;
(C) Beca's PDS Summary Report;
(v) in undertaking Hicks' PDS Actions;
(vi) in conducting and, or in the alternative, overseeing the implementation of,
an appropriate due diligence process in connection with the preparation of
the PDS; and, or in the alternative
(vii) in undertaking DDC Actions and TDDSC Actions as a member of the DDC
and the TDDSC respectively; and, or in the alternative
(d) that no Hicks' PDS Warning was required,
(Hicks' PDS Representations).
Hicks' PDS involvement, Hicks' PDS Breaches of Duty and Hicks' PDS Misrepresentations
190. If and insofar as:
Part D. AECOM Australia's Apportionment Defences
215
(a) AECOM Australia is found to have committed AECOM Australia's Alleged
Wrongful Acts (which is denied);
(b) any Class Member suffered any Class Member Corporations Act Loss and, or in
the alternative, Class Member Negligence Loss as alleged or at all (which is
denied);
(c) such Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss was caused by AECOM Australia's Alleged Wrongful
Acts (which is denied); and
(d) AECOM Australia is liable for such Class Member Corporations Act Loss and, or
in the alternative, Class Member Negligence Loss as alleged or at all (which is
denied),
then, in those circumstances:
(e) if and insofar as AECOM Australia is found to have committed AECOM Australia's
Alleged Wrongful Acts in whole or in part because:
(i) AECOM Australia did not have reasonable grounds for making the
Forecasts and failed to exercise reasonable care and diligence in
preparing the Summary Letter and the Forecasts in whole or in part by
reason of one or more of the issues identified in Schedule 4 of the
particulars served on Peter Hicks on 24 November 2015 (the Hicks
Particulars);
(ii) the Consented Material contained one or more of the further misleading or
deceptive statements identified in Schedule 5 of the Hicks Particulars;
and/or
(iii) there were omissions from the Consented Material as identified in
Schedule 6 of the Hicks Particulars (other than the omission identified in
paragraph 1(c) of Schedule 6 of the Hicks Particulars with respect to sub-
paragraph 28(aa)(iii) of the SFASOC),
(e) (AECOM Australia's Alleged Wrongful Acts (Hicks)), which is denied,
then the material facts or matters giving rise to AECOM Australia's Alleged
Wrongful ActsAECOM Australia's Alleged Wrongful Acts (Hicks) and which form
part of the subject matter of NIEIR's Growth Forecasts and NIEIR's Additional
Statements, the Forecasts, the Summary Letter and Beca's PDS Summary
Report were facts or information:
(i)(iv) relevant to whether the PDS was defective within the meaning of section
1022A of the Corporations Act and, or in the alternative, the PDS was not
prepared with reasonable care; and
(ii)(v) which Peter Hicks knew or, by reason of Hicks' Total NSBT Actions,
Hicks' Expertise, Hicks' Authority and Responsibilities, and, or in the
alternative, his knowledge of the NSBT Traffic Forecast Facts, ought to
have known;
(f) the PDS was defective within the meaning of section 1022A of the Corporations
Act and that Class Member will have suffered Class Member Corporations Act
Loss and, or in the alternative, Class Member Negligence Loss by reason of their
reliance upon the PDS or, in the alternative, by reason of the existence of the
Part D. AECOM Australia's Apportionment Defences
216
PDS if and insofar as reliance is not a relevant pre-requisite to the entitlement to
recover such loss or damage (which is denied);
(g) Peter Hicks:
(i) was a person who, directly or indirectly, caused the PDS to be defective
or contributed to it being defective within the meaning of section
1022B(3)(b)(ii) of the Corporations Act;
(ii) did not take reasonable steps to ensure that the PDS would not be
defective; and
(iii) is a person from whom the Class Members are entitled to recover their
loss and damage pursuant to section 1022B(2) of the Corporations Act;
and, or in the alternative
(h) Peter Hicks, in breach of Hicks' PDS Duties of Care, failed to exercise the skill,
care and diligence that could reasonably be expected of a specialist with Hicks'
Expertise or, in the alternative, due skill, care and diligence, or in the alternative,
reasonable skill, care and diligence:
(i) in connection with his involvement in the preparation of the PDS;
(ii) in exercising, and discharging Hicks' Authority and Responsibilities insofar
as was relevant to the preparation of the PDS;
(iii) in obtaining and providing instructions, directions and other inputs,
feedback and assistance in relation to, and in reviewing, approving and
accepting, each of NIEIR's Growth Forecasts and NIEIR's Additional
Statements;
(iv) in co-ordinating and supervising, obtaining and providing instructions,
directions and other inputs, feedback and assistance in relation to, and in
reviewing, approving and accepting:
(A) the Forecasts;
(B) the Summary Letter;
(C) Beca's PDS Summary Report;
(v) in undertaking Hicks' PDS Actions;
(vi) in conducting and, or in the alternative, overseeing the implementation of,
an appropriate due diligence process in connection with the preparation of
the PDS; and
(vii) in undertaking DDC Actions and TDDSC Actions as a member of the DDC
and the TDDSC respectively; and, or in the alternative
(i) Peter Hicks failed to give Hicks' PDS Warning as required by Hicks' PDS Duties
of Care; and, or in the alternative
(j) Hicks' PDS Representations were:
(i) made without the skill, care and diligence that could reasonably be
expected of a specialist with Hicks' Expertise or, in the alternative, due
skill, care and diligence, or in the alternative, reasonable skill, care and
Part D. AECOM Australia's Apportionment Defences
217
diligence, in breach of Hicks' PDS Duties of Care (Hicks' PDS
Misrepresentations); and
(ii) were relied upon by that Class Member,
(hereafter, the breaches of Hicks' PDS Duties of Care alleged in sub-paragraphs
(h) - (j) above are together referred to as Hicks' PDS Breaches of Duty);
(k) Hicks' PDS Breaches of Duty and, or in the alternative, Hicks' PDS
Misrepresentations caused, or in the alternative, materially contributed to:
(i) the issue and distribution of the PDS;
(ii) the RCM IPO;
(iii) the Class Member's decision to acquire RCM Stapled Units;
(iv) the Class Member's acquisition of RCM Stapled Units; and
(v) any Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss,
(the Class Member Consequences); and, or in the alternative
(l) but for Hicks' PDS Breaches of Duty and, or in the alternative, Hicks' PDS
Misrepresentations none of the Class Member Consequences would have
occurred.
Particulars
1. If (which is denied) AECOM Australia is found to have committed
AECOM Australia's Alleged Wrongful Acts then:
(a) NIEIR's Growth Forecasts and NIEIR's Additional Statements
would not have been the product of the skill, care and
diligence that could reasonably be expected of a specialist
with NIEIR's Expertise and knowledge or, in the alternative,
due skill, care and diligence, or in the alternative, reasonable
skill, care and diligence, would have not been prepared and
made by NIEIR on reasonable grounds and could not safely
be relied upon because, in that event, NIEIR's Growth
Forecasts and NIEIR's Additional Statements would have
been based upon, or contained, or were, unreasonable
predictions of Brisbane traffic growth after 2005;
(b) the Forecasts and the Summary Letter would not have been
the product of due skill, care and diligence, would have not
been prepared and made by AECOM Australia on reasonable
grounds and could not safely be relied upon by reason of
AECOM Australia's Alleged Wrongful Acts;
(c) Beca's PDS Summary Report and Beca's NSBT Capacity
Findings would not have been the product of the skill, care and
diligence that could reasonably be expected of a specialist
with Beca's Expertise and knowledge or, in the alternative, due
skill, care and diligence, or in the alternative, reasonable skill,
care and diligence, would not have been prepared and made
Part D. AECOM Australia's Apportionment Defences
218
by Beca on reasonable grounds and could not safely be relied
upon because, in that event:
(i) the NSBT Capacity Assumptions would not have been
the product of due skill, care and diligence by AECOM
Australia, would not have been made on reasonable
grounds and could not be safely relied upon; and
(ii) Beca's PDS Summary Report and Beca's NSBT
Capacity Findings would not have been the product of
the skill, care and diligence that could reasonably be
expected of a specialist with Beca's Expertise and
knowledge or, in the alternative, due skill, care and
diligence, or in the alternative, reasonable skill, care
and diligence, would not have been made on
reasonable grounds and could not be safely relied
upon.
2. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
191. If AECOM Australia has any liability to any Class Member for Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) then, by reason of the matters alleged in paragraphs 187 - 190 herein, Peter
Hicks is also liable to that Class Member for that Class Member Corporations Act Loss
and, or in the alternative, Class Member Negligence Loss.
192. In the premises, any liability of AECOM Australia in relation to that Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) should be reduced, under the Apportionment Legislation, to reflect that
proportion of the Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss which the Court considers just having regard to the extent of
Peter Hicks' responsibility for that Class Member Corporations Act Loss and, or in the
alternative, Class Member Negligence Loss.
AECOM Australia's Apportionment Defence - Sponsor Clients
Sponsor Clients' PDS Duties of Care
193. At all material times:
(a) the Sponsor Clients, acting together in furtherance of the Joint RCM Plan as
alleged in paragraph 5 herein:
(i) had commenced implementation of the Joint RCM Plan from in or about
April 2005;
(ii) had taken or assumed responsibility for, and, or in the alternative, made,
all material, decisions in relation to revenue forecasting and overall
business planning, project structuring, NSBT Project Bid strategy, NSBT
Project Bid approach, establishing the RCM SPVs, NSBT Project Bid
submission, negotiations in respect of, or arising from, the NSBT Project
Bid, equity underwriting, debt procurement, equity procurement and
setting up organisational structures for, and all administration and
Part D. AECOM Australia's Apportionment Defences
219
strategic direction in connection with, the NSBT Project and AECOM
Australia refers to and repeats paragraph 66 and sub-paragraph 1(b) of
the particulars thereto;
(iii) knew that members of the RCM Project Team had been appointed to the
various roles alleged in sub-paragraphs 29(e) and (f) herein in relation to
Peter Hicks, in sub-paragraphs 30(h) - (j) herein in relation to Robert
Morris, in sub-paragraphs 31(g) and (h) herein in relation to Charles Mott,
in sub-paragraphs 32(d) and (e) in relation to Malcolm Coleman and in
sub-paragraphs 33(d) and (e) in relation to Duncan Olde;
(b) the Sponsor Clients, acting together in furtherance of the Joint RCM Plan as
alleged in paragraph 5 herein or, in the alternative, individually, had, between
them, or, in the alternative, had available to them:
(i) the experience, skills and knowledge alleged in paragraph 1 herein in
relation to Leighton, in paragraph 2 herein in relation to ABN AMRO, in
paragraph 3 herein in relation to Baulderstone and in paragraph 4 herein
in relation to Bilfinger;
(ii) the experience, skills and knowledge (including, where applicable,
knowledge of NSBT Traffic Forecast Facts or, in the case of Malcolm
Coleman, Coleman's NSBT Traffic Forecast Facts) alleged in paragraphs
29 and 68 herein in relation to Peter Hicks, in paragraphs 30 and 70
herein in relation to Robert Morris, in paragraphs 31 and 72 herein in
relation to Charles Mott, in paragraphs 32 and 74 herein in relation to
Malcolm Coleman and in paragraph 33 herein in relation to Duncan Olde;
(iii) the experience, skills and knowledge gained by Peter Hicks from taking
Hicks' Total NSBT Actions including:
(A) knowledge of NSBT Traffic Forecast Facts;
(B) that the DDC had considered and accepted the TDDSC Key
Issues Report as alleged in paragraph 87 herein;
(C) that Mallesons had agreed to undertake, and had undertaken,
Mallesons' RCM IPO Actions;
(D) that the PDS would include the Summary Letter and Beca's PDS
Summary Report;
(E) the contents of the PDS, the Summary Letter and Beca's PDS
Summary Report;
(F) that, in accordance with the PDS Decisions, a copy of the May
2006 Traffic Report was not to be made accessible to the limited
class comprising Potential RCM Stapled Unit Acquirers either in,
or with, the PDS as issued, on the "RiverCity Motorway" website
(as proposed and requested by AECOM Australia) or otherwise,
as alleged in paragraphs 104 and 106 herein respectively;
(G) that the limited class comprising Potential RCM Stapled Unit
Acquirers would, or likely would, rely upon the PDS in deciding
whether to acquire RCM Stapled Units and, or in the alternative,
persons involved in the preparation of the PDS to not prepare and,
or in the alternative, not permit the issue of, a PDS which was
Part D. AECOM Australia's Apportionment Defences
220
defective within the meaning of section 1022A of the Corporations
Act and, or in the alternative, which was not prepared with
reasonable care; and
(H) that it was reasonable for the limited class comprising Potential
RCM Stapled Unit Acquirers to so rely in deciding whether to
acquire RCM Stapled Units;
(I) that there was a not insignificant risk, it was reasonably
foreseeable, and Peter Hicks knew, or ought to have known, that
any failure by Peter Hicks to act with the skill, care and diligence
that could reasonably be expected of a specialist with Hicks'
Expertise or, in the alternative, with due skill, care and diligence,
or in the alternative, with reasonable skill, care and diligence, in
connection with the preparation and issue of the PDS, would, or
may, have been likely to, cause material loss or damage to any
Potential RCM Stapled Unit Acquirer who proceeded to acquire
RCM Stapled Units in reliance upon the PDS or in the alternative,
by reason of the existence of the PDS, if and insofar as reliance is
not a relevant pre-requisite to the entitlement to recover such loss
or damage (which is denied);
(iv) the experience, skills and knowledge (including knowledge of NSBT
Traffic Forecast Facts) gained by Robert Morris from taking Morris'
AECOM Australia Actions, Morris' Keith Long Actions, Morris’ PB Actions,
and Robert Morris undertaking DDC Actions and TDDSC Actions as a
member of the DDC and TDDSC respectively;
(v) the experience, skills and knowledge (including knowledge of NSBT
Traffic Forecast Facts) gained by Charles Mott from taking Mott's AECOM
Australia Actions and Charles Mott undertaking DDC Actions as a
member of the DDC;
(vi) the experience, skills and knowledge (including knowledge of NSBT
Traffic Forecast Facts or, in the alternative, Coleman's NSBT Traffic
Forecast Facts) gained by Malcolm Coleman from taking Coleman's
AECOM Australia Actions; and
(vii) the experience, skills and knowledge gained by Duncan Olde from taking
Olde's AECOM Australia Actions,
(hereafter, the experience, skills and knowledge alleged in sub-
paragraphs (ii) - (vii) above are together referred to as the RCM Project
Team Expertise),
(hereafter, the experience, skills and knowledge alleged in sub-paragraph (i)
above and the RCM Project Team Expertise are together referred to as the
Sponsor Clients' Expertise);
(c) further and in the alternative to sub-paragraphs (b)(iii)(G) - (I) above, the Sponsor
Clients, acting together in furtherance of the Joint RCM Plan as alleged in
paragraph 5 herein or, in the alternative, individually, knew and accepted, or, in
the alternative, ought to have known:
(i) that the limited class comprising Potential RCM Stapled Unit Acquirers
reasonably would, or likely reasonably would, rely upon the PDS in
Part D. AECOM Australia's Apportionment Defences
221
deciding whether to acquire RCM Stapled Units and, or in the alternative,
persons involved in the preparation of the PDS to not prepare and, or in
the alternative, not permit the issue of, a PDS which was defective within
the meaning of section 1022A of the Corporations Act and, or in the
alternative, which was not prepared with reasonable care; and
(ii) there was a not insignificant risk, and it was reasonably foreseeable that:
(A) any failure by the Sponsor Clients to act with the skill, care and
diligence that could reasonably be expected of a specialist with
the Sponsor Clients' Expertise or, in the alternative, with due skill,
care and diligence, or in the alternative, with reasonable skill, care
and diligence; and, or in the alternative
(B) any failure by Peter Hicks, in his capacity as the representative
and agent of the Sponsor Clients, to act with the skill, care and
diligence that could reasonably be expected of a specialist with
Hicks' Expertise or, in the alternative, with due skill, care and
diligence, or in the alternative, with reasonable skill, care and
diligence,
in connection with the preparation and issue of the PDS, would, or may,
have been likely to, cause material loss or damage to any Potential RCM
Stapled Unit Acquirer who proceeded to acquire RCM Stapled Units in
reliance upon the PDS or in the alternative, by reason of the existence of
the PDS, if and insofar as reliance is not a relevant pre-requisite to the
entitlement to recover such loss or damage (which is denied);
Particulars
1. As to sub-paragraph (b)(i) above, the skill, knowledge and
experience of Leighton, ABN AMRO, Baulderstone and Bilfinger is
to be imputed and, or in the alternative, attributed to the Sponsor
Clients by reason of, or in circumstances where, the Sponsor
Clients were acting together as alleged in paragraph 5 herein.
2. As to sub-paragraph (b)(ii) - (vii) above, the RCM Project Team
Expertise is to be imputed and, or in the alternative, attributed to
the Sponsor Clients by reason of the following facts, matters and
circumstances (each of which is alleged further and in the
alternative):
(a) the fact that:
(i) each of Peter Hicks, Charles Mott, Malcolm
Coleman and Duncan Olde were employees of
Sponsor Clients, being Leighton in the case of
Peter Hicks as alleged in sub-paragraph 29(c)
herein, Bilfinger in the case of Charles Mott as
alleged in sub-paragraph 31(d) herein and ABN
AMRO in the case of Malcolm Coleman as alleged
in sub-paragraph 32(b) herein and Duncan Olde as
alleged in sub-paragraph 33(a) herein and Charles
Mott was a director of Bilfinger as alleged in sub-
paragraph 31(d) herein; and
Part D. AECOM Australia's Apportionment Defences
222
(ii) Robert Morris was employed as a consultant to the
Sponsor Clients or, in the alternative, Leighton,
acting for the RCM Consortium as alleged in sub-
paragraph 30(h) herein;
(b) each of Peter Hicks, Robert Morris, Charles Mott, Malcolm
Coleman and Duncan Olde acted for the RCM Consortium
in the roles as alleged in sub-paragraphs 29(e), 30(h) and
(i), 31(g), 32(d) and 33(d) herein respectively (hereafter,
Peter Hicks, Robert Morris, Charles Mott, Malcolm
Coleman and Duncan Olde are together referred to as the
RCM Project Team Members and these various roles are
together referred to as the RCM Representative Roles);
(c) the agency of:
(i) each of Peter Hicks, Robert Morris and Charles
Mott of and for the RCM Consortium as alleged in
sub-paragraphs 29(f), 30(j) and 31(h) herein
respectively;
(ii) Malcolm Coleman of and for the RCM Consortium
as alleged in sub-paragraph 32(e) herein; and
(iii) Duncan Olde for the Sponsor Clients as alleged in
sub-paragraph 33(e) herein,
(together, the RCM Agency Roles);
(d) the granting of Hicks' Authority and Responsibilities to
Peter Hicks as alleged in sub-paragraph 29(g) herein, of
Morris' Authority and Responsibilities to Robert Morris as
alleged in sub-paragraph 30(k) herein, of Mott's Authority
and Responsibilities to Charles Mott as alleged in sub-
paragraph 31(i) herein, of Coleman's Authority and
Responsibilities to Malcolm Coleman as alleged in sub-
paragraph 32(f) herein and of Olde's Authority and
Responsibilities to Duncan Olde as alleged in sub-
paragraph 33(f) herein (together, the RCM Authorities
and Responsibilities);
(e) the reliance placed, or which it is to be inferred, by reason
of the facts, matters and circumstances alleged in sub-
paragraphs (a) - (d) above, was placed, by the RCM
Consortium upon the expertise, experience, skills,
knowledge and judgement of the RCM Project Team
Members;
(f) the duty of:
(i) the RCM Project Team Members as members of
the RCM Project Team; and, or in the alternative
(ii) Peter Hicks, Robert Morris, Charles Mott and
Malcolm Coleman in their respective RCM
Representative Roles and, in the alternative, in
their respective RCM Agency Roles,
Part D. AECOM Australia's Apportionment Defences
223
to disclose to the RCM Consortium (in the case of Peter
Hicks, Robert Morris, Charles Mott and Malcolm Coleman)
and to the Sponsor Clients (in the case of Duncan Olde),
all material facts, information, knowledge, opinions, beliefs
and suspicions they had relating to, or arising from, the
NSBT Project, which duty:
(iii) arose in circumstances where the RCM
Consortium (in the case of Peter Hicks, Robert
Morris, Charles Mott and Malcolm Coleman) and
the Sponsor Clients (in the case of Duncan Olde)
were reliant on their respective specialist
knowledge, experience, abilities and judgement;
and, or in the alternative
(iv) is to be inferred from the relevance and proximity of
information and knowledge concerning the NSBT
Project to their respective RCM Authorities and
Responsibilities and actions in connection with the
NSBT Project.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
194. Further to paragraph 193 herein, at all material times, in, and by reason of, the
circumstances alleged in paragraph 193 herein, the Sponsor Clients, acting together in
furtherance of the Joint RCM Plan as alleged in paragraph 5 herein or, in the alternative,
individually, owed the limited class comprising Potential RCM Stapled Unit Acquirers,
under the general law, a duty to exercise the skill, care and diligence that could
reasonably be expected of a specialist with Sponsor Clients' Expertise or, in the
alternative, due skill, care and diligence, or in the alternative, reasonable skill, care and
diligence (which duties are alleged further, and in the alternative, to each other):
(a) in providing instructions to, supervising and obtaining relevant information from,
each of the RCM Project Team Members or, in the alternative, Peter Hicks, and
Mallesons, in connection with the preparation of the PDS;
(b) in obtaining and providing instructions, directions and other inputs, feedback and
assistance in relation to, and in reviewing, approving and accepting, each of
NIEIR's Growth Forecasts and NIEIR's Additional Statements, in circumstances
where the Sponsor Clients knew that AECOM Australia's Traffic Forecasts, the
May 2006 Traffic Report and AECOM Australia's Consented Material would be,
and were, prepared by AECOM Australia in reliance thereon;
(c) in co-ordinating and supervising, obtaining and providing instructions, directions
and other inputs, feedback and assistance in relation to, and in reviewing,
approving and accepting:
(i) the Forecasts;
(ii) the Summary Letter;
Part D. AECOM Australia's Apportionment Defences
224
(iii) Beca's PDS Summary Report;
(d) in conducting and, or in the alternative, overseeing the implementation of, an
appropriate due diligence process in connection with the preparation of the PDS;
(e) to warn Potential RCM Stapled Unit Acquirers if and insofar as it was unsafe to
rely upon the PDS because it was defective within the meaning of section 1022A
of the Corporations Act and, or in the alternative, was not prepared with
reasonable care, by reason of any fact, matter or circumstance known to him
(Sponsor Clients' PDS Warning),
(hereafter these various duties are collectively referred to as the Sponsor Clients' PDS
Duties of Care).
Sponsor Clients' PDS Representations
195. Further and in the alternative to paragraphs 194 herein:
(a) by failing to provide any Sponsor Clients' PDS Warning; and, or in the alternative,
(b) by being involved in the preparation of and, or in the alternative, by facilitating,
supporting and, or in the alternative, permitting the issue of, the PDS, directly or,
in the alternative, through their representative and agent Peter Hicks, in each
case without any Sponsor Clients' PDS Warning,
the Sponsor Clients, acting together in furtherance of the Joint RCM Plan as alleged in
paragraph 5 herein or, in the alternative, individually, thereby represented to the limited
class comprising Potential RCM Stapled Unit Acquirers:
(c) that they, or it, had exercised the skill, care and diligence that could reasonably
be expected of a specialist with the Sponsor Clients' Expertise or, in the
alternative, due skill, care and diligence, or in the alternative, reasonable skill,
care and diligence:
(i) in providing instructions to, supervising and obtaining relevant information
from, each of the RCM Project Team Members or, in the alternative, Peter
Hicks, and Mallesons, in connection with the preparation of the PDS;
(ii) in obtaining and providing instructions, directions and other inputs,
feedback and assistance in relation to, and in reviewing, approving and
accepting, each of NIEIR's Growth Forecasts and NIEIR's Additional
Statements;
(iii) in co-ordinating and supervising, obtaining and providing instructions,
directions and other inputs, feedback and assistance in relation to, and in
reviewing, approving and accepting:
(A) the Forecasts;
(B) the Summary Letter;
(C) Beca's PDS Summary Report; and, or in the alternative
(iv) in conducting and, or in the alternative, overseeing the implementation of,
an appropriate due diligence process in connection with the preparation of
the PDS; and, or in the alternative
(d) that no Sponsor Clients' PDS Warning was required,
Part D. AECOM Australia's Apportionment Defences
225
(Sponsor Clients' PDS Representations).
Vicarious Liability
196. In the alternative to paragraphs 187 - 192 herein and further and in the alternative to
paragraphs 193 - 195 herein, at all material times the Sponsor Clients, acting together in
furtherance of the Joint RCM Plan as alleged in paragraph 5 herein or in the alternative,
individually:
(a) were, and are, vicariously liable, under the general law, for the acts and
omissions of Peter Hicks:
(i) in connection with the PDS in his performance or purported performance,
of his roles as alleged in sub-paragraph 29(e) (Hicks' RCM
Representative Roles) and, or in the alternative, his agency of and for
the RCM Consortium as alleged in sub-paragraph 29(f) herein (Hicks'
RCM Agency Role); and, or in the alternative
(ii) in his exercise of and discharge, or purported exercise and discharge, of
actual or apparent Hicks' Authority and Responsibilities; and
(b) would, in the premises, be liable to pay damages to the Class Members if and to
the extent that Peter Hicks is found liable, with AECOM Australia, for any Class
Member Corporations Act Loss and, or in the alternative, Class Member
Negligence Loss (which is denied).
197. In the alternative to paragraphs 187 - 192 herein and 196 herein and further and in the
alternative to paragraphs 193 - 195 herein, Leighton:
(a) was, at all material times, and is, vicariously liable, under the general law, for the
acts and omissions of Peter Hicks in connection with the PDS in the actual or
purported performance, of Hicks' RCM Representative Roles and, or in the
alternative, Hicks' RCM Agency Role and, or in the alternative, his actual or
purported exercise and discharge of Hicks' Authority and Responsibilities in the
course of and, or in the alternative, as a requirement of, his employment by
Leighton; and
(b) would, in the premises, be individually liable to pay damages to the Class
Members if and to the extent that Peter Hicks is found liable, with AECOM
Australia, for any Class Member Corporations Act Loss and, or in the alternative,
Class Member Negligence Loss (which is denied).
Particulars
1. Leighton is liable for the acts and omissions of Peter Hicks in
circumstances where Peter Hicks actually or purportedly
undertook those roles, and exercised and discharged those
authorities and responsibilities in connection with the PDS, in the
course of and, or in the alternative, as a requirement of, Hicks'
Leighton Employment.
2. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
Part D. AECOM Australia's Apportionment Defences
226
198. In the alternative to paragraphs 187 - 192 herein and further and in the alternative to
paragraphs 193 - 197 herein, the Sponsor Clients are deemed, together, by reason of
their acting together in furtherance of the Joint RCM Plan as alleged in paragraph 5
herein, or, in the alternative, individually, pursuant to section 769B of the Corporations
Act, to have engaged in the conduct consisting of the acts and omissions of Peter Hicks
in connection with the PDS, in circumstances where the acts and omissions of Peter
Hicks in connection with the PDS, were undertaken or made by Peter Hicks intending to
do so for and on behalf of the Sponsor Clients or on behalf of the Sponsor Clients in the
course of the Sponsor Clients' business, affairs or activities in connection with the NSBT
Project or, in the alternative, in connection with the PDS and:
(a) in the course of acting within the scope of his actual or apparent authority as
agent of, inter alia, the Sponsor Clients as alleged in paragraph 29(f) herein; and,
or in the alternative
(b) with the consent or agreement of Robert Morris and, or in the alternative, Charles
Mott acting within the scope of their respective actual or apparent authorities as
agents of, inter alia, the Sponsor Clients as alleged in paragraph 30(j) herein in
respect of Robert Morris and paragraph 31(h) herein in respect of Charles Mott.
Particulars
1. The consents or agreements alleged in sub-paragraph (b)
above are to be inferred from:
(a) the knowledge of each of Robert Morris and Charles
Mott of the roles, authorities and responsibilities of
Peter Hicks; and
(b) the apparent absence of any warning to RCM Services
or RCMML by either of Robert Morris or Charles Mott
that Peter Hicks was not acting with the requisite skill,
care and diligence in connection with the PDS.
2. Further particulars may be supplied upon further review of
already discovered and subpoenaed documents and the
review of documents and evidence to be produced or served,
including documents stored on servers maintained by, or for
and on behalf of, the Sponsor Clients or, in the alternative,
ABN AMRO, in the course of the NSBT Project.
199. In the alternative to paragraphs 187 - 192 herein and further and in the alternative to
paragraphs 193 - 198 herein, Bilfinger is deemed, pursuant to section 769B of the
Corporations Act, to have engaged in the conduct consisting of the acts and omissions of
Peter Hicks in connection with the PDS because those acts and omissions were made by
Peter Hicks:
(a) intending to do so for and on behalf of Bilfinger or on behalf of Bilfinger in the
course of the Bilfinger's business, affairs or activities in connection with the NSBT
Project or, in the alternative, in connection with the PDS; and
(b) with the consent or agreement of Charles Mott acting within the scope of his
respective actual or apparent authority as the agent of, inter alia, Bilfinger (as
alleged in paragraph 31(h) herein) and, or in the alternative, a director and an
employee of Bilfinger (as alleged in paragraph 31(d) herein).
Part D. AECOM Australia's Apportionment Defences
227
Particulars
1. As to sub-paragraph (b) above, the consents or agreements
alleged are to be inferred from:
(a) the knowledge of Charles Mott of Peter Hicks' roles,
authorities and responsibilities; and
(b) the apparent absence of any warning to RCM Services
or RCMML by Charles Mott that Peter Hicks was not
acting with the requisite skill, care and diligence in
connection with the PDS.
2. Further particulars may be supplied upon further review of
already discovered and subpoenaed documents and the
review of documents and evidence to be produced or served,
including documents stored on servers maintained by, or for
and on behalf of, the Sponsor Clients or, in the alternative,
ABN AMRO, in the course of the NSBT Project.
200. In the alternative to paragraphs 187 - 192 and 198 herein and further and in the
alternative to paragraphs 193 - 197 and 199 herein, the acts and omissions of Peter
Hicks in connection with the PDS were undertaken or made by Peter Hicks intending to
do so on behalf of, inter alia, Leighton or on behalf of Leighton in the course of Leighton's
business, affairs or activities in connection with the NSBT Project or, in the alternative, in
connection with the PDS and his employment by Leighton, with the result that Leighton is
deemed, pursuant to section 769B of the Corporations Act, to have engaged in that
conduct.
Sponsor Clients' PDS involvement, Sponsor Clients' PDS Breaches of Duty and Sponsor
Clients' PDS Misrepresentations
201. If and insofar as:
(a) AECOM Australia is found to have committed AECOM Australia's Alleged
Wrongful Acts (which is denied);
(b) any Class Member suffered any Class Member Corporations Act Loss and, or in
the alternative, Class Member Negligence Loss as alleged or at all (which is
denied);
(c) such Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss was caused by AECOM Australia's Alleged Wrongful
Acts (which is denied); and
(d) AECOM Australia is liable for such Class Member Corporations Act Loss and, or
in the alternative, Class Member Negligence Loss as alleged or at all (which is
denied),
then, in those circumstances:
(e) if and insofar as AECOM Australia is found to have committed AECOM Australia's
Alleged Wrongful Acts in whole or in part because:
(i) in the case of Leighton:
(A) AECOM Australia did not have reasonable grounds for making the
Forecasts and failed to exercise reasonable care and diligence in
Part D. AECOM Australia's Apportionment Defences
228
preparing the Summary Letter and the Forecasts in whole or in
part by reason of one or more of the issues identified in Schedule
4 of the particulars served on Leighton on 24 November 2015 (the
Leighton Particulars);
(B) the Consented Material contained one or more of the further
misleading or deceptive statements identified in Schedule 5 of the
Leighton Particulars; and/or
(C) there were omissions from the Consented Material as identified in
Schedule 6 of the Leighton Particulars (other than the omission
identified in paragraph 1A(c) of Schedule 6 of the Leighton
Particulars with respect to sub-paragraph 28(aa)(iii) of the
SFASOC),
(AECOM Australia's Alleged Wrongful Acts (Leighton));
(ii) in the case of ABN AMRO:
(A) AECOM Australia did not have reasonable grounds for making the
Forecasts and failed to exercise reasonable care and diligence in
preparing the Summary Letter and the Forecasts in whole or in
part by reason of one or more of the issues identified in Schedule
3 of the particulars served on ABN AMRO on 24 November 2015
(the ABN AMRO Particulars);
(B) the Consented Material contained one or more of the further
misleading or deceptive statements identified in Schedule 4 of the
ABN AMRO Particulars; and/or
(C) there were omissions from the Consented Material as identified in
Schedule 5 of the ABN AMRO Particulars (other than the omission
identified in paragraph 1A(c) of Schedule 5 of the ABN AMRO
Particulars with respect to sub-paragraph 28(aa)(iii) of the
SFASOC),
(AECOM Australia's Alleged Wrongful Acts (ABN AMRO));
(iii) in the case of Bilfinger:
(A) AECOM Australia did not have reasonable grounds for making the
Forecasts and failed to exercise reasonable care and diligence in
preparing the Summary Letter and the Forecasts in whole or in
part by reason of one or more of the issues identified in Schedule
3 of the particulars served on Bilfinger on 24 November 2015 (the
Bilfinger Particulars);
(B) the Consented Material contained one or more of the further
misleading or deceptive statements identified in Schedule 4 of the
Bilfinger Particulars; and/or
(C) there were omissions from the Consented Material as identified in
Schedule 5 of the Bilfinger Particulars (other than the omission
identified in paragraph 1A(c) of Schedule 5 of the Bilfinger
Particulars with respect to sub-paragraph 28(aa)(iii) of the
SFASOC),
Part D. AECOM Australia's Apportionment Defences
229
(AECOM Australia's Alleged Wrongful Acts (Bilfinger)); and/or
(iv) in the case of Baulderstone:
(A) AECOM Australia did not have reasonable grounds for making the
Forecasts and failed to exercise reasonable care and diligence in
preparing the Summary Letter and the Forecasts in whole or in
part by reason of one or more of the issues identified in Schedule
3 of the particulars served on Baulderstone on 24 November 2015
(the Baulderstone Particulars);
(B) the Consented Material contained one or more of the further
misleading or deceptive statements identified in Schedule 4 of the
Baulderstone Particulars; and/or
(C) there were omissions from the Consented Material as identified in
Schedule 5 of the Baulderstone Particulars (other than the
omission identified in paragraph 1A(c) of Schedule 5 of the
Baulderstone Particulars with respect to sub-paragraph 28(aa)(iii)
of the SFASOC),
(AECOM Australia's Alleged Wrongful Acts (Baulderstone)),
(which is denied in each case) then the material facts or matters giving rise to
AECOM Australia's Alleged Wrongful Acts (Leighton) in the case of Leighton,
AECOM Australia's Alleged Wrongful Acts (ABN AMRO) in the case of ABN
AMRO, AECOM Australia's Alleged Wrongful Acts (Bilfinger) in the case of
Bilfinger and/or AECOM Australia's Alleged Wrongful Acts (Baulderstone) in the
case of Baulderstone AECOM Australia's Alleged Wrongful Acts and which form
part of the subject matter of NIEIR's Growth Forecasts and NIEIR's Additional
Statements, the Forecasts, the Summary Letter and Beca's PDS Summary
Report were facts or information:
(i)(v) relevant to whether the PDS was defective within the meaning of section
1022A of the Corporations Act and, or in the alternative, the PDS was not
prepared with reasonable care; and
(ii)(vi) which the that Sponsor Clients knew or, by reason of the Sponsor Clients'
Expertise, ought to have known;
(e)(f) the PDS was defective within the meaning of section 1022A of the Corporations
Act and the Class Member will have suffered Class Member Corporations Act
Loss and, or in the alternative, Class Member Negligence Loss by reason of their
reliance upon the PDS or, in the alternative, by reason of the existence of the
PDS if and insofar as reliance is not a relevant pre-requisite to the entitlement to
recover such loss or damage (which is denied);
(f)(g) the Sponsor Clients, acting together in furtherance of the Joint RCM Plan as
alleged in paragraph 5 herein or in the alternative, individually:
(i) was a person, or were persons, who, directly or indirectly, caused the
PDS to be defective or contributed to it being defective within the meaning
of section 1022B(3)(b)(ii) of the Corporations Act;
(ii) did not take reasonable steps to ensure that the PDS would not be
defective; and
Part D. AECOM Australia's Apportionment Defences
230
(iii) is a person, or are persons, from whom the Class Members are entitled to
recover their loss and damage pursuant to section 1022B(2) of the
Corporations Act; and, or in the alternative
(g)(h) the Sponsor Clients, acting together in furtherance of the Joint RCM Plan as
alleged in paragraph 5 herein or in the alternative, individually, in breach of the
Sponsor Clients' PDS Duties of Care, failed to exercise the skill, care and
diligence that could reasonably be expected of a specialist with the Sponsor
Clients' Expertise or, in the alternative, with due skill, care and diligence, or in the
alternative, with reasonable skill, care and diligence:
(i) in providing instructions to, supervising and obtaining relevant information
from, each of the RCM Project Team Members or, in the alternative, Peter
Hicks, and Mallesons, in connection with the preparation of the PDS;
(ii) in obtaining and providing instructions, directions and other inputs,
feedback and assistance in relation to, and in reviewing, approving and
accepting, each of NIEIR's Growth Forecasts and NIEIR's Additional
Statements;
(iii) in co-ordinating and supervising, obtaining and providing instructions,
directions and other inputs, feedback and assistance in relation to, and in
reviewing, approving and accepting:
(A) the Forecasts;
(B) the Summary Letter;
(C) Beca's PDS Summary Report;
(iv) in conducting and, or in the alternative, overseeing the implementation of,
an appropriate due diligence process in connection with the preparation of
the PDS;
(h)(i) the Sponsor Clients, acting together in furtherance of the Joint RCM Plan as
alleged in paragraph 5 herein or, in the alternative, individually, failed, in breach
of the Sponsor Clients' PDS Duties of Care, to give a Sponsor Clients' PDS
Warning as required; and, or in the alternative
(i)(j) the Sponsor Clients' PDS Representations were:
(i) made without the skill, care and diligence that could reasonably be
expected of a specialist with the Sponsor Clients' Expertise or, in the
alternative, due skill, care and diligence, or in the alternative, reasonable
skill, care and diligence in breach of the Sponsor Clients' PDS Duties of
Care (Sponsor Clients' PDS Misrepresentations); and
(ii) were relied upon by that Class Member,
(hereafter, the breaches of the Sponsor Clients' Duties of Care alleged in sub-
paragraphs (h) - (j) above are together referred to as the Sponsor Clients' PDS
Breaches of Duty); and, or in the alternative,
(j)(k) the Sponsor Clients PDS Breaches of Duty and, or in the alternative, Hicks' PDS
Breaches of Duty and, or in the alternative, the Sponsor Clients' PDS
Misrepresentations and, or in the alternative, Hicks' PDS Misrepresentations,
Part D. AECOM Australia's Apportionment Defences
231
caused, or in the alternative, materially contributed to the Class Member
Consequences; and, or in the alternative
(k)(l) but for Sponsor Clients PDS Breaches of Duty and, or in the alternative, Hicks'
PDS Breaches of Duty and, or in the alternative, the Sponsor Clients' PDS
Misrepresentations, and, or in the alternative, Hicks' PDS Misrepresentations
none of the Class Member Consequences would have occurred.
Particulars
1. AECOM Australia refers to and repeats paragraph 1 of the
particulars to paragraph 190 herein.
2. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
202. If AECOM Australia has any liability to any Class Member for Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) then, by reason of the matters alleged in paragraphs 193 - 201 herein, the
Sponsor Clients are also liable to that Class Member for that Class Member Corporations
Act Loss and, or in the alternative, Class Member Negligence Loss.
203. In the premises, any liability of AECOM Australia in relation to that Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) should be reduced, under the Apportionment Legislation, to reflect that
proportion of the Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss which the Court considers just having regard to the extent of
the Sponsor Clients' responsibility for that Class Member Corporations Act Loss and, or
in the alternative, Class Member Negligence Loss.
AECOM Australia's Apportionment Defence - RCM Services and RCMML
The RCM Respondent Companies
204. Each of RCM Services and RCMML (together, the RCM Respondent Companies) is,
and was at all material times, an Australian proprietary company, limited by shares and
able to be sued.
RCM Respondent Companies Duties of Care
205. AECOM Australia refers to and repeats paragraph 5 herein.
206. Each of the RCM Respondent Companies were formed and registered, or caused to be
formed and registered, by the Sponsor Clients, as RCM SPVs, as alleged in paragraph 7
herein, to perform or share different functions in furtherance of the Joint RCM Plan.
Particulars
1. RCM Services was intended to provide, and ultimately did provide,
administrative and other services to the RCM Group, including to
RCMML in connection with the preparation of the PDS and the RCM
IPO.
Part D. AECOM Australia's Apportionment Defences
232
2. RCMML was intended to be, and ultimately was, the issuer of the PDS
and securities in the RCM IPO.
3. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of documents
and evidence to be produced or served, including documents stored
on servers maintained by, or for and on behalf of, the Sponsor Clients
or, in the alternative, ABN AMRO, in the course of the NSBT Project.
207. AECOM Australia refers to and repeats, for the purposes of this apportionment defence
in respect of the RCM Respondent Companies only, paragraphs 5 - 7, 14 - 16 and
37 - 38B of the SFASOC.
208. At all material times, the RCM Respondent Companies:
(a) each knew that members of the RCM Project Team had been appointed to the
various roles alleged in sub-paragraphs 29(e) and (f) herein in relation to Peter
Hicks, in sub-paragraphs 30(h) - (j) herein in relation to Robert Morris, in sub-
paragraphs 31(g) and (h) herein in relation to Charles Mott, in sub-paragraphs
32(d) and (e) in relation to Malcolm Coleman and in sub-paragraphs 33(d) and (e)
in relation to Duncan Olde;
(b) each had or, in the alternative, each had available to them the experience, skills
and knowledge (including, where applicable, knowledge of NSBT Traffic Forecast
Facts or, in the case of Malcolm Coleman, Coleman's NSBT Traffic Forecast
Facts) alleged in paragraphs 29 and 68 herein in relation to Peter Hicks, in
paragraphs 30 and 70 herein in relation to Robert Morris, in paragraphs 31 and
72 herein in relation to Charles Mott, in paragraphs 32 and 74 herein in relation to
Malcolm Coleman and in paragraph 33 herein in relation to Duncan Olde;
(c) each had or, in the alternative, each had available to them, RCM Project Team
Expertise;
(d) further and in the alternative to sub-paragraph (c) above, each knew or, in the
alternative, ought to have known:
(i) that the limited class comprising Potential RCM Stapled Unit Acquirers
reasonably would, or likely reasonably would, rely upon:
(A) the PDS in deciding whether to acquire RCM Stapled Units;
(B) persons who were involved in the preparation of, the PDS, to not
prepare a PDS which was defective within the meaning of section
1022A of the Corporations Act and, or in the alternative, which
was not prepared with reasonable care; and, or in the alternative
(C) persons on whose behalf the PDS was prepared, to not permit the
issue of a PDS which was defective within the meaning of section
1022A of the Corporations Act and, or in the alternative, which
was not prepared with reasonable care;
(ii) there was a not insignificant risk, and it was reasonably foreseeable that:
(A) any failure by the RCM Respondent Companies to act with the
skill, care and diligence that could reasonably be expected of a
specialist with the RCM Project Team Expertise or, in the
Part D. AECOM Australia's Apportionment Defences
233
alternative, with due skill, care and diligence, or in the alternative,
with reasonable skill, care and diligence; and, or in the alternative
(B) any failure by Peter Hicks, in his capacity as the representative
and agent of the RCM Respondent Companies, to act with the
skill, care and diligence that could reasonably be expected of a
specialist with Hicks' Expertise or, in the alternative, with due skill,
care and diligence, or in the alternative, with reasonable skill, care
and diligence,
in connection with the preparation and issue of the PDS, would, or may,
have been likely to, cause material loss or damage to any Potential RCM
Stapled Unit Acquirer who proceeded to acquire RCM Stapled Units in
reliance upon the PDS or in the alternative, by reason of the existence of
the PDS, if and insofar as reliance is not a relevant pre-requisite to the
entitlement to recover such loss or damage (which is denied).
Particulars
1. As to sub-paragraph (c) above, the RCM Project Team Expertise
is to be imputed and, or in the alternative, attributed to the RCM
Respondent Companies by reason of the following facts, matters
and circumstances (each of which is alleged further and in the
alternative):
(a) each of the RCM Project Team Members acted for the
RCM Consortium in the RCM Representative Roles and in
their respective RCM Agency Roles;
(b) the granting of the RCM Authorities and Responsibilities;
(c) the reliance placed, or which it is to be inferred, by reason
of the facts, matters and circumstances alleged in sub-
paragraphs (a) and (b) above, was placed, by the RCM
Consortium upon the expertise, experience, skills,
knowledge and judgement of the RCM Project Team
Members;
(d) the duty of:
(i) the RCM Project Team Members as members of
the RCM Project Team; and, or in the alternative
(ii) Peter Hicks, Robert Morris, Charles Mott and
Malcolm Coleman in their respective RCM
Representative Roles and, in the alternative, in
their respective RCM Agency Roles,
to disclose to the RCM Consortium (in the case of Peter
Hicks, Robert Morris, Charles Mott and Malcolm Coleman)
and to the Sponsor Clients (in the case of Duncan Olde),
all material facts, information, knowledge, opinions, beliefs
and suspicions they had relating to, or arising from, the
NSBT Project, which duty:
(iii) arose in circumstances where the RCM
Consortium (in the case of Peter Hicks, Robert
Part D. AECOM Australia's Apportionment Defences
234
Morris, Charles Mott and Malcolm Coleman) and
the Sponsor Clients (in the case of Duncan Olde)
were reliant on their respective specialist
knowledge, experience, abilities and judgement;
and, or in the alternative
(iv) is to be inferred from the relevance and proximity of
information and knowledge concerning the NSBT
Project to their respective RCM Authorities and
Responsibilities and actions in connection with the
NSBT Project.
2. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
209. Further to paragraphs 206 - 208 herein, at all material times, in, and by reason of, the
circumstances alleged in paragraphs 206 - 208 herein, each of the RCM Respondent
Companies owed the limited class comprising Potential RCM Stapled Unit Acquirers,
under the general law, a duty to exercise the skill, care and diligence that could
reasonably be expected of a specialist with RCM Project Team Expertise or, in the
alternative, due skill, care and diligence, or in the alternative, reasonable skill, care and
diligence (which duties are alleged further, and in the alternative, to each other):
(a) in providing instructions to, supervising and obtaining relevant information from,
Mallesons in connection with the preparation of the PDS;
(b) in obtaining and providing instructions, directions and other inputs, feedback and
assistance in relation to, and in reviewing, approving and accepting, each of
NIEIR's Growth Forecasts and NIEIR's Additional Statements, in circumstances
where the Sponsor Clients knew that AECOM Australia's Traffic Forecasts, the
May 2006 Traffic Report and AECOM Australia's Consented Material would be,
and were, prepared by AECOM Australia in reliance thereon;
(c) in co-ordinating and supervising, obtaining and providing instructions, directions
and other inputs, feedback and assistance in relation to, and in reviewing,
approving and accepting:
(i) the Forecasts;
(ii) the Summary Letter;
(iii) Beca's PDS Summary Report;
(d) in conducting and, or in the alternative, overseeing the implementation of, an
appropriate due diligence process in connection with the preparation of the PDS;
(e) to warn Potential RCM Stapled Unit Acquirers if and insofar as it was unsafe to
rely upon the PDS because it was defective within the meaning of section 1022A
of the Corporations Act and, or in the alternative, was not prepared with
reasonable care, by reason of any fact, matter or circumstance known to him
(RCM Respondent Companies PDS Warning),
Part D. AECOM Australia's Apportionment Defences
235
(hereafter these various duties are collectively referred to as the RCM Respondent
Companies PDS Duties of Care).
RCM Respondent Companies PDS Representations
210. Further and in the alternative to paragraphs 209 herein:
(a) by failing to provide any RCM Respondent Companies PDS Warning; and, or in
the alternative,
(b) by being involved in the preparation of and, or in the alternative, by facilitating,
supporting and, or in the alternative, permitting the issue of, the PDS, directly or,
in the alternative, through their representative and agent Peter Hicks, in each
case without any RCM Respondent Companies PDS Warning,
each of the RCM Respondent Companies thereby represented to the limited class
comprising Potential RCM Stapled Unit Acquirers:
(c) that it had exercised the skill, care and diligence that could reasonably be
expected of a specialist with RCM Project Team Expertise or, in the alternative,
due skill, care and diligence, or in the alternative, reasonable skill, care and
diligence:
(i) in providing instructions to, supervising and obtaining relevant information
from, Mallesons in connection with the preparation of the PDS;
(ii) in obtaining and providing instructions, directions and other inputs,
feedback and assistance in relation to, and in reviewing, approving and
accepting, each of NIEIR's Growth Forecasts and NIEIR's Additional
Statements;
(iii) in co-ordinating and supervising, obtaining and providing instructions,
directions and other inputs, feedback and assistance in relation to, and in
reviewing, approving and accepting:
(A) the Forecasts;
(B) the Summary Letter;
(C) Beca's PDS Summary Report; and, or in the alternative
(iv) in conducting and, or in the alternative, overseeing the implementation of,
an appropriate due diligence process in connection with the preparation of
the PDS; and, or in the alternative
(d) that no RCM Respondent Companies PDS Warning was required;
(RCM Respondent Companies PDS Representations).
RCM Respondent Companies PDS involvement, RCM Respondent Companies PDS
Breaches of Duty and RCM Respondent Companies PDS Misrepresentations
211. If and insofar as:
(a) AECOM Australia is found to have committed AECOM Australia's Alleged
Wrongful Acts (which is denied);
Part D. AECOM Australia's Apportionment Defences
236
(b) any Class Member suffered any Class Member Corporations Act Loss and, or in
the alternative, Class Member Negligence Loss as alleged or at all (which is
denied);
(c) such Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss was caused by AECOM Australia's Alleged Wrongful
Acts (which is denied); and
(d) AECOM Australia is liable for such Class Member Corporations Act Loss and, or
in the alternative, Class Member Negligence Loss as alleged or at all (which is
denied),
then, in those circumstances:
(e) if and insofar as:
(i) AECOM Australia did not have reasonable grounds for making the
Forecasts and failed to exercise reasonable care and diligence in
preparing the Summary Letter and the Forecasts in whole or in part by
reason of the matters numbered 1 - 3, 5, 7, 9, 10, 18, 21, 23 - 25, 30, 33,
39, 41 - 46, 47(a) and (b), 48, 49, 51, 61, 63, 64 (c) and (d), 65, 67, 69 -
71, 73, 77, 74, 76 - 81, 83 - 112, 114, 115, 121 - 126, 128 and 129 in the
"Consolidated List of Complaints in respect of AECOM's traffic forecasts
and reports" dated 23 June 2014;
(ii) the Consented Mmaterial contained misleading or deceptive statements
as alleged in paragraph 27 of the SFASOC; and/or
(iii) there were omissions from the Consented Material as alleged in
paragraph 28 of the SFASOC, with the exception of the alleged omission
set out in sub-paragraph 28(aa)(iii) of the SFASOC,
(e) (together, the AECOM Australia's Alleged Wrongful Acts (RCM
Services) in the case of RCM Services and AECOM Australia's Alleged
Wrongful Acts (RCMML) in the case of RCMML), which is denied, then the
material facts facts or matters giving rise to AECOM Australia's Alleged Wrongful
ActsAECOM Australia's Alleged Wrongful Acts (RCM Services) and AECOM
Australia's Alleged Wrongful Acts (RCMML) (as the case may be) and which form
part of the subject matter of NIEIR's Growth Forecasts and NIEIR's Additional
Statements, the Forecasts, the Summary Letter and Beca's PDS Summary
Report were facts or information:
(i)(iv) relevant to whether the PDS was defective within the meaning of section
1022A of the Corporations Act and, or in the alternative, the PDS was not
prepared with reasonable care; and
(ii)(v) which that each of the RCM Respondent Companies RCM Respondent
Companies respectively knew or, by reason of the RCM Project Team
Expertise, ought to have known;
(f) the PDS was defective within the meaning of section 1022A of the Corporations
Act and the Class Member will have suffered Class Member Corporations Act
Loss and, or in the alternative, Class Member Negligence Loss by reason of their
reliance upon the PDS or, in the alternative, by reason of the existence of the
PDS if and insofar as reliance is not a relevant pre-requisite to the entitlement to
recover such loss or damage (which is denied);
Part D. AECOM Australia's Apportionment Defences
237
(g) for the purposes of section 1022B(3)(b)(i) of the Corporations Act:
(i) RCM Services:
(A) was the person by whom the PDS was prepared;
(B) did not take reasonable steps to ensure that the PDS would not be
defective; and
(C) is a person from whom the Class Members are entitled to recover
their loss and damage pursuant to section 1022B(2) of the
Corporations Act; and
(ii) RCMML:
(A) was the person on whose behalf the PDS was prepared;
(B) did not take reasonable steps to ensure that the PDS would not be
defective; and
(C) is a person from whom the Class Members are entitled to recover
their loss and damage pursuant to section 1022B(2) of the
Corporations Act;
(h) in the alternative to sub-paragraph (g)(i) above, and further to sub-paragraph
(g)(ii) above, RCM Services:
(i) was a person who, directly or indirectly, caused the PDS to be defective
or contributed to it being defective within the meaning of section
1022B(3)(b)(ii) of the Corporations Act;
(ii) did not take reasonable steps to ensure that the PDS would not be
defective; and
(iii) is a person from whom the Class Members are entitled to recover their
loss and damage pursuant to section 1022B(2) of the Corporations Act;
(i) further to sub-paragraph (g)(i) above, and in the alternative to sub-paragraph
(g)(ii) above, RCMML:
(i) was a person who, directly or indirectly, caused the PDS to be defective
or contributed to it being defective within the meaning of section
1022B(3)(b)(ii) of the Corporations Act;
(ii) did not take reasonable steps to ensure that the PDS would not be
defective; and
(iii) is a person from whom the Class Members are entitled to recover their
loss and damage pursuant to section 1022B(2) of the Corporations Act;
and, or in the alternative
(j) each of the RCM Respondent Companies failed to exercise the skill, care and
diligence that could reasonably be expected of a specialist with the RCM Project
Team Expertise or, in the alternative, with due skill, care and diligence, or in the
alternative, with reasonable skill, care and diligence:
(i) in providing instructions to, supervising and obtaining relevant information
from, Mallesons in connection with the preparation of the PDS;
Part D. AECOM Australia's Apportionment Defences
238
(ii) in obtaining and providing instructions, directions and other inputs,
feedback and assistance in relation to, and in reviewing, approving and
accepting, each of NIEIR's Growth Forecasts and NIEIR's Additional
Statements;
(iii) in co-ordinating and supervising, obtaining and providing instructions,
directions and other inputs, feedback and assistance in relation to, and in
reviewing, approving and accepting:
(A) the Forecasts;
(B) the Summary Letter;
(C) Beca's PDS Summary Report;
(D) in conducting and, or in the alternative, overseeing the
implementation of, an appropriate due diligence process in
connection with the preparation of the PDS;
(k) each of the RCM Respondent Companies failed, in breach of the RCM
Respondent Companies PDS Duties of Care, to give a RCM Respondent
Companies PDS Warning as required; and, or in the alternative
(l) the RCM Respondent Companies PDS Representations were:
(i) made without the skill, care and diligence that could reasonably be
expected of a specialist with the RCM Project Team Expertise or, in the
alternative, due skill, care and diligence, or in the alternative, reasonable
skill, care and diligence in breach of the RCM Respondent Companies
PDS Duties of Care (RCM Respondent Companies PDS
Misrepresentations); and
(ii) were relied upon by that Class Member,
(hereafter, the breaches of the RCM Respondent Companies PDS Duties of Care
alleged in sub-paragraphs (j) - (l) above are together referred to as the RCM
Respondent Companies PDS Breaches of Duty); and, or in the alternative,
(m) the RCM Respondent Companies PDS Breaches of Duty and, or in the
alternative, the RCM Respondent Companies PDS Misrepresentations materially
contributed to the Class Member Consequences; and, or in the alternative
(n) but for RCM Respondent Companies PDS Breaches of Duty and, or in the
alternative, the RCM Respondent Companies PDS Misrepresentations, none of
the Class Member Consequences would have occurred.
Particulars
1. AECOM Australia refers to and repeats paragraph 1 of the
particulars to paragraph 190 herein.
2. Further particulars may be supplied upon further review of already
discovered and subpoenaed documents and the review of
documents and evidence to be produced or served, including
documents stored on servers maintained by, or for and on behalf
of, the Sponsor Clients or, in the alternative, ABN AMRO, in the
course of the NSBT Project.
Part D. AECOM Australia's Apportionment Defences
239
212. If AECOM Australia has any liability to any Class Member for Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) then, by reason of the matters alleged in paragraphs 204 - 211 herein, each of
the RCM Respondent Companies are also liable to that Class Member for that Class
Member Corporations Act Loss and, or in the alternative, Class Member Negligence
Loss.
213. In the premises, any liability of AECOM Australia in relation to that Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) should be reduced, under the Apportionment Legislation, to reflect that
proportion of the Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss which the Court considers just having regard to the extent of
the responsibility of each of the RCM Respondent Companies for that Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss.
AECOM Australia's Apportionment Defence - Beca
Applicants' Beca Allegations
214. The Applicants allege against AECOM Australia (which is denied) that:
(a) AECOM Australia's Consented Material contained misleading or deceptive
statements for the purposes of section 1021L(1)(b)(i) of the Corporations Act and
AECOM Australia refers to and repeats, for the purposes of this apportionment
defence only, paragraph 31 of the SFASOC;
(b) there were Omissions from AECOM Australia's Consented Material for the
purposes of section 1021L(1)(b)(ii) of the Corporations Act and AECOM Australia
refers to and repeats, for the purposes of this apportionment defence only,
paragraph 32 of the SFASOC; and
(c) AECOM Australia failed to act with reasonable care in preparing the Summary
Letter and AECOM Australia refers to and repeats, for the purposes of this
apportionment defence only, paragraph 45 of the SFASOC,
in each case because, relevantly to this apportionment defence in relation to Beca:
(d) the Forecasts were not made upon reasonable grounds and AECOM Australia
refers to and repeats, for the purposes of this apportionment defence only,
paragraph 26 of the SFASOC;
(e) AECOM Australia used a consistent set of "favourable" assumptions and inputs in
its NSBT traffic model and AECOM Australia refers to and repeats, for the
purposes of this apportionment defence only, paragraph 28(f) of the SFASOC;
(f) AECOM Australia's use of a consistent set of "favourable" assumptions and
inputs in its NSBT traffic model to generate the Forecasts, increased the risk that
the Forecasts were overly optimistic and AECOM Australia refers to and repeats,
for the purposes of this apportionment defence only, paragraph 28(g) of the
SFASOC;
(g) once daily traffic volumes on the NSBT reached 95,000 cars per day traffic
growth thereafter would be so limited as to require specific disclosure in the PDS
and AECOM Australia refers to and repeats, for the purposes of this
apportionment defence only, paragraph 28(i) of the SFASOC; and
Part D. AECOM Australia's Apportionment Defences
240
(h) risks associated with the assumption that the NSBT would or could operate at full
capacity were so material as to require specific disclosure in the PDS and
AECOM Australia refers to and repeats, for the purposes of this apportionment
defence only, paragraph 28(j) of the SFASOC.
Beca's PDS involvement
215. At all material times:
(a) Beca was retained by the Sponsor Clients, both on their own behalf and acting for
the yet-to-be registered RCM SPVs, as lead independent engineer to review, and
report upon, certain technical aspects of the proposed NSBT Project in
accordance with Beca's Engagement and AECOM Australia refers to and repeats
paragraph 26 herein and the particulars thereto;
(b) undertook Beca's Work, made Beca's NSBT Capacity Findings and summarised
Beca's NSBT Capacity Findings in Beca's PDS Summary Report which was
included in the PDS with Beca's consent pursuant to section 1013K of the
Corporations Act and AECOM Australia refers to and repeats paragraphs 60, 61
and 98 herein and the particulars thereto;
216. By reason of the matters alleged in paragraph 215(b) herein, Beca was a person who
was involved in the preparation of the PDS within the meaning of section 1022B(3)(b)(ii)
of the Corporations Act.
Beca's PDS Duties of Care
217. At all material times:
(a) Beca had Beca's Expertise;
(b) Beca knew or, in the alternative, ought to have known, and it was reasonably
foreseeable, that a limited class comprising Potential RCM Stapled Unit Acquirers
would, or were likely to, depend and, or in the alternative, rely, upon:
(i) Beca's PDS Summary Report in deciding whether to acquire RCM
Stapled Units; and, or in the alternative
(ii) persons involved in the preparation of the PDS to not prepare and, or in
the alternative, not permit the issue of, a PDS which was defective within
the meaning of section 1022A of the Corporations Act and, or in the
alternative, which was not prepared with reasonable care;
(c) it was reasonable for the limited class comprising Potential RCM Stapled Unit
Acquirers to so rely in deciding whether to acquire RCM Stapled Units; and
(d) there was a not insignificant risk, it was reasonably foreseeable, and Beca knew,
or ought to have known, that any failure by Beca to act with the skill, care and
diligence that could reasonably be expected of a specialist with Beca's Expertise
or, in the alternative, with due skill, care and diligence, or in the alternative, with
reasonable skill, care and diligence, in connection with the preparation and issue
of Beca's PDS Summary Report or, in the alternative, the PDS insofar as it
comprised Beca's PDS Summary Report, would, or may, have been likely to,
cause material loss or damage to any Potential RCM Stapled Unit Acquirer who
proceeded to acquire RCM Stapled Units:
Part D. AECOM Australia's Apportionment Defences
241
(i) in reliance upon Beca's PDS Summary Report or, in the alternative, the
PDS; or in the alternative
(ii) by reason of the existence of Beca's PDS Summary Report or, in the
alternative, the PDS, if and insofar as reliance is not a relevant pre-
requisite to the entitlement to recover such loss or damage (which is
denied).
218. Further and in the alternative to paragraph 216, and further to paragraph 217 herein, at
all material times, in, and by reason of, the circumstances alleged in paragraph 217
herein, Beca owed the limited class comprising Potential RCM Stapled Unit Acquirers,
under the general law, a duty to exercise the skill, care and diligence that could
reasonably be expected of a specialist with Beca's Expertise and knowledge or, in the
alternative, due skill, care and diligence, or in the alternative, reasonable skill, care and
diligence (which duties are alleged further, and in the alternative, to each other):
(a) in the performance of Beca's Work, in making Beca's NSBT Capacity Findings
and, or in the alternative, including a summary of Beca's NSBT Capacity Findings
in Beca's PDS Summary Report;
(b) to warn Potential RCM Stapled Unit Acquirers if and insofar as it was unsafe to
rely upon:
(i) Beca's Work or the summary of Beca's NSBT Capacity Findings
contained in Beca's PDS Summary Report in connection with the offer of
RCM Stapled Units pursuant to the PDS; and
(ii) the PDS if and insofar as it was defective within the meaning of section
1022A of the Corporations Act and, or in the alternative, could not be
safely relied upon by Potential RCM Stapled Unit Acquirers, by reason of
Beca's PDS Summary Report,
(together, Beca's PDS Warnings),
(hereafter these various duties are collectively referred to as Beca's PDS Duties of
Care).
Beca's PDS Representations
219. Further and in the alternative to paragraphs 216 - 218 herein, by:
(a) being involved in the preparation of the PDS as alleged in paragraph 218 herein,
without any Beca's PDS Warnings being given to the limited class comprising
Potential RCM Stapled Unit Acquirers; and, or in the alternative
(b) consenting to the inclusion of Beca's PDS Summary Report in the PDS, without
any Beca's PDS Warnings being given to the limited class comprising Potential
RCM Stapled Unit Acquirers,
Beca thereby represented to the limited class comprising Potential RCM Stapled Unit
Acquirers that:
(c) Beca had exercised the skill, care and diligence that could reasonably be
expected of a specialist with Beca's Expertise and knowledge or, in the
alternative, due skill, care and diligence or, in the alternative, reasonable skill,
care and diligence in undertaking Beca's Work, in making Beca's NSBT Capacity
Part D. AECOM Australia's Apportionment Defences
242
Findings and, or in the alternative, in including a summary of Beca's NSBT
Capacity Findings in Beca's PDS Summary Report;
(d) Beca's Work, Beca's NSBT Capacity Findings and, or in the alternative, the
summary of Beca's NSBT Capacity Findings contained in Beca's PDS Summary
Report was, or were, the product of the application, by Beca, of:
(i) the skill, care and diligence that could reasonably be expected of a
specialist with Beca's Expertise and knowledge;
(ii) due skill, care and diligence; and, or in the alternative
(iii) reasonable skill, care and diligence; and, or in the alternative
(e) no Beca's PDS Warnings were required,
(Beca's PDS Representations).
Beca's PDS involvement and Beca's PDS Negligence
220. If and insofar as:
(a) AECOM Australia is found to have committed AECOM Australia's Alleged
Wrongful Acts in whole or in part because:
(i) AECOM Australia made the NSBT Capacity Assumptions in the NSBT
traffic model without reasonable care and diligence (which is denied);
(ii) there were no reasonable grounds for the NSBT Capacity Assumptions
(which is denied);
(iii) the NSBT Capacity Assumptions were unreasonably favourable
assumptions (which is denied);
(iv) the NSBT Capacity Assumptions were unreasonably favourable
assumptions which unreasonably increased the risk that the Forecasts
would be overly optimistic and materially less reliable (which is denied);
and, or in the alternative
(v) growth in traffic volumes in the NSBT would be so materially limited once
daily traffic volumes on the NSBT reached 95,000 cars per day traffic as
to require specific disclosure in the PDS (which is denied);
(b) any Class Member suffered any Class Member Corporations Act Loss and, or in
the alternative, Class Member Negligence Loss as alleged or at all (which is
denied);
(c) such Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss was caused by AECOM Australia's Alleged Wrongful
Acts in whole or in part by reason of any of the matters alleged in sub-paragraph
(a) above (which is denied); and
(d) AECOM Australia is liable for such Class Member Corporations Act Loss and, or
in the alternative, Class Member Negligence Loss as alleged or at all (which is
denied),
then, in those circumstances:
Part D. AECOM Australia's Apportionment Defences
243
(e) the material facts or matters giving rise to AECOM Australia's Alleged Wrongful
Acts, insofar as they comprised or concerned the NSBT Capacity Assumptions,
were facts or information:
(i) relevant to whether the PDS was defective within the meaning of section
1022A of the Corporations Act and, or in the alternative, the PDS was not
prepared with reasonable care; and
(ii) which Beca knew or, by reason of Beca's Work or, in the alternative,
ought to have known;
(f) the PDS was defective within the meaning of section 1022A of the Corporations
Act and that Class Member will have suffered Class Member Negligence Loss by
reason of their reliance upon the Beca's PDS Summary Report or, in the
alternative, by reason of the existence of the PDS if and insofar as reliance is not
a relevant pre-requisite to the entitlement to recover such loss or damage (which
is denied);
(g) Beca:
(i) was a person who, directly or indirectly, caused the PDS to be defective
or contributed to it being defective within the meaning of section
1022B(3)(b)(ii) of the Corporations Act;
(ii) did not take reasonable steps to ensure that the PDS would not be
defective; and
(iii) is a person from whom the Class Members are entitled to recover their
loss and damage pursuant to section 1022B(2) of the Corporations Act;
and, or in the alternative
(h) in breach of Beca's PDS Duties of Care, Beca's NSBT Capacity Findings and, or
in the alternative, the summary of Beca's NSBT Capacity Findings contained in
Beca's PDS Summary Report:
(i) was, or were, not undertaken, prepared or given (as the case may be), by
Beca with the skill, care and diligence that could reasonably be expected
of a specialist with Beca's Expertise and knowledge or, in the alternative,
due skill, care and diligence, or in the alternative, reasonable skill, care
and diligence; and, or in the alternative
(ii) could not safely be relied upon by any Potential RCM Stapled Unit
Acquirers in deciding whether to acquire RCM Stapled Units;
(i) Beca's PDS Representations were:
(i) made in breach of Beca's PDS Duties of Care; and
(ii) relied upon by the Class Members;
(j) in breach of Beca's PDS Duties of Care, Beca failed to give Beca's PDS
Warnings to the limited class comprising Potential RCM Stapled Unit Acquirers,
(hereafter, the breaches of Beca's PDS Duties of Care alleged in sub-paragraphs
(h) - (j) above are together referred to as Beca's PDS Negligence); and, or in the
alternative,
Part D. AECOM Australia's Apportionment Defences
244
(k) Beca's PDS Summary Report contained misleading or deceptive statements for
the purposes of section 1021L(1)(b)(i) of the Corporations Act or, in the
alternative, an omission of information for the purposes of section 1021L(1)(b)(ii)
of the Corporations Act insofar as Beca's PDS Summary Report summarised, or
summarised the effect and consequences of, Beca's NSBT Capacity Findings or,
in the alternative, failed to state that the NSBT Capacity Assumptions were not
made upon reasonable grounds (Beca's Misleading Capacity Statements);
(l) Beca's Misleading Capacity Statements were materially adverse from the point of
view of a reasonable person considering whether to acquire RCM Stapled Units
for the purposes of section 1021L(1)(c) of the Corporations Act and, or in the
alternative
(m) Beca's Misleading Capacity Statements and, or in the alternative, Beca's PDS
Negligence, caused, or in the alternative, materially contributed to the Class
Member Consequences; and, or in the alternative
(n) but for Beca's Misleading Capacity Statements and, or in the alternative, Beca's
PDS Negligence, none of the Class Member Consequences would have
occurred.
221. If AECOM Australia has any liability to any Class Member for Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) then, by reason of the matters alleged in paragraphs 214 - 220 herein, Beca is
also liable to that Class Member for that Class Member Corporations Act Loss and, or in
the alternative, Class Member Negligence Loss.
222. In the premises, any liability of AECOM Australia in relation to that Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) should be reduced, under the Apportionment Legislation, to reflect that
proportion of the Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss which the Court considers just having regard to the extent of
Beca's responsibility for that Class Member Corporations Act Loss and, or in the
alternative, Class Member Negligence Loss.
AECOM Australia's Apportionment Defence - Mallesons
Applicants' Mallesons Allegations
223. The Applicants allege against AECOM Australia (which is denied) that:
(a) AECOM Australia's Consented Material contained misleading or deceptive
statements for the purposes of section 1021L(1)(b)(i) of the Corporations Act and
AECOM Australia refers to and repeats, for the purposes of this apportionment
defence only, paragraph 31 of the SFASOC;
(b) there were Omissions from AECOM Australia's Consented Material for the
purposes of section 1021L(1)(b)(ii) of the Corporations Act and AECOM Australia
refers to and repeats, for the purposes of this apportionment defence only,
paragraph 32 of the SFASOC; and
(c) AECOM Australia failed to act with reasonable care in preparing the Summary
Letter and AECOM Australia refers to and repeats, for the purposes of this
apportionment defence only, paragraph 45 of the SFASOC,
in each case because, relevantly to this apportionment defence in relation to Mallesons,
AECOM Australia's Consented Material did not contain:
Part D. AECOM Australia's Apportionment Defences
245
(d) any disclosure of the risks associated with the use of AM Peak modelling only
and AECOM Australia refers to and repeats, for the purposes of this
apportionment defence only, paragraph 28(a) of the SFASOC;
(e) required disclosures in relation to AECOM Australia's Earlier EIS Forecasts and
AECOM Australia refers to and repeats, for the purposes of this apportionment
defence only, paragraph 28(c) and (d) of the SFASOC;
(f) any reference to the failure of recently opened Australian toll roads to meet
forecast traffic numbers and AECOM Australia refers to and repeats, for the
purposes of this apportionment defence only, paragraph 28(e) of the SFASOC;
(g) any disclosure that the Forecasts were prepared as part of a competitive bid to
win the NSBT Concession and AECOM Australia refers to and repeats, for the
purposes of this apportionment defence only, paragraph 28(m) of the SFASOC;
(h) any disclosure of AECOM Australia's Retainer Discount and AECOM Australia
refers to and repeats, for the purposes of this apportionment defence only,
paragraph 28(n) of the SFASOC; and
(i) any disclosure of the matters alleged to be omissions in paragraph 28(na) of the
SFASOC and AECOM Australia refers to and repeats, for the purposes of this
apportionment defence only, paragraph 28(na) of the SFASOC,
(together, the Alleged Mallesons Omissions).
Mallesons' PDS involvement
224. At all material times:
(a) Mallesons was engaged as the legal advisors to the RCM Consortium to provide
legal advice on all issues pertaining to the NSBT Project in accordance with
Mallesons' Engagement and AECOM Australia refers to and repeats paragraph
28 herein and the particulars thereto;
(b) undertook Mallesons' RCM IPO Actions and AECOM Australia refers to and
repeats paragraphs 81 and 83 herein and the particulars thereto;
(c) provided legal advice to RCM Consortium or, in the alternative, RCMML and
RCM Services and to the DDC and the TDDSC in respect of the subject matters
of the Alleged Mallesons Omissions and how, if at all, those matters were to be
disclosed in the PDS and otherwise in connection with the offer of RCM Stapled
Units pursuant to the PDS and AECOM Australia refers to and repeats sub-
paragraphs 81(a), (c) - (e), 82 - 84, 86 and 87 herein and the particulars thereto;
and
(d) by no later than 13 June 2006 knew, or ought to have known, Mallesons' Traffic
Forecast Facts and AECOM Australia refers to and repeats paragraph 100 herein
and the particulars thereto.
225. By reason of the matters alleged in paragraph 224 herein, Mallesons was a person who
was involved in the preparation of the PDS within the meaning of section 1022B(3)(b)(ii)
of the Corporations Act.
Mallesons' PDS Duties of Care
226. At all material times:
Part D. AECOM Australia's Apportionment Defences
246
(a) Mallesons had Mallesons' Expertise;
(b) the PDS, with Mallesons' approval or, in the alternative, to Mallesons' knowledge
and with Mallesons' acquiescence, stated, in section 10.11 thereof, and it was the
case, that Mallesons had advised both the "RiverCity Motorway Group", and
RCMML, in connection with the offer of RCM Stapled Units pursuant to the PDS;
(c) Mallesons knew or, in the alternative, ought to have known, and it was reasonably
foreseeable, that a limited class comprising Potential RCM Stapled Unit Acquirers
would, or were likely to, depend and, or in the alternative, rely, upon:
(i) Mallesons' RCM IPO Actions or, in the alternative, Mallesons' PDS
Preparation or, in the alternative, the fact that Mallesons had advised both
the "RiverCity Motorway Group", and RCMML, in connection with the offer
of RCM Stapled Units pursuant to the PDS, in deciding whether to acquire
RCM Stapled Units;
(ii) the PDS in deciding whether to acquire RCM Stapled Units; and, or in the
alternative
(iii) persons involved in the preparation of the PDS to not prepare and, or in
the alternative, not permit the issue of, a PDS which was defective within
the meaning of section 1022A of the Corporations Act and, or in the
alternative, which was not prepared with reasonable care;
(d) it was reasonable for the limited class comprising Potential RCM Stapled Unit
Acquirers to so rely in deciding whether to acquire RCM Stapled Units; and
(e) there was a not insignificant risk, it was reasonably foreseeable, and Mallesons
knew, or ought to have known, that:
(i) Mallesons' RCM IPO Actions or, in the alternative, Mallesons' PDS
Preparation and, or in the alternative, Mallesons' advice in connection with
the offer of RCM Stapled Units pursuant to the PDS, would, or in the
alternative, may have been likely to, cause loss or damage to a limited
class comprising Potential RCM Stapled Unit Acquirers who acquired
RCM Stapled Units if not undertaken with the skill, care and diligence that
could reasonably be expected of a specialist with Mallesons' Expertise
and knowledge or, in the alternative, with due skill, care and diligence, or
in the alternative, with reasonable skill, care and diligence; and, or in the
alternative
(ii) any failure by Mallesons to act with the skill, care and diligence that could
reasonably be expected of a specialist with Mallesons' Expertise or, in the
alternative, with due skill, care and diligence, or in the alternative, with
reasonable skill, care and diligence, in connection with the preparation
and issue of the PDS, would, or may, have been likely to, cause material
loss or damage to any Potential RCM Stapled Unit Acquirer who
proceeded to acquire RCM Stapled Units:
(A) in reliance upon the PDS; or in the alternative
(B) by reason of the existence of the PDS, if and insofar as reliance is
not a relevant pre-requisite to the entitlement to recover such loss
or damage (which is denied).
Part D. AECOM Australia's Apportionment Defences
247
227. Further and in the alternative to paragraph 225, and further to paragraph 226 herein, at
all material times, in, and by reason of, the circumstances alleged in paragraph 226
herein, Mallesons owed the limited class comprising Potential RCM Stapled Unit
Acquirers, under the general law, a duty to exercise the skill, care and diligence that
could reasonably be expected of a specialist with Mallesons' Expertise and knowledge or,
in the alternative, due skill, care and diligence, or in the alternative, reasonable skill, care
and diligence (which duties are alleged further, and in the alternative, to each other):
(a) in the performance of Mallesons' RCM IPO Actions or, in the alternative,
Mallesons' PDS Preparation and, or in the alternative, in providing advice in
connection with the offer of RCM Stapled Units pursuant to the PDS;
(b) to warn Potential RCM Stapled Unit Acquirers if and insofar as it was unsafe to
rely upon:
(i) Mallesons' RCM IPO Actions or, in the alternative, Mallesons' PDS
Preparation and, or in the alternative, advice provided by Mallesons in
connection with the offer of RCM Stapled Units pursuant to the PDS;
(ii) the PDS if and insofar as it was defective within the meaning of section
1022A of the Corporations Act, was not prepared with reasonable care
and, or in the alternative, could not be safely relied upon by Potential
RCM Stapled Unit Acquirers, by reason of Mallesons' RCM IPO Actions
or, in the alternative, Mallesons' PDS Preparation and, or in the
alternative, Mallesons' advice in connection with the offer of RCM Stapled
Units pursuant to the PDS,
(together, Mallesons' PDS Warnings),
(hereafter these various duties are collectively referred to as Mallesons' PDS Duties of
Care).
Mallesons' PDS Representations
228. Further and in the alternative to paragraphs 225 - 227 herein, by:
(a) being involved in the preparation of the PDS as alleged in paragraph 225 herein,
without any Mallesons' PDS Warnings being given to the limited class comprising
Potential RCM Stapled Unit Acquirers;
(b) undertaking Mallesons' RCM IPO Actions or, in the alternative, Mallesons' PDS
Preparation and, or in the alternative, providing advice in connection with the offer
of RCM Stapled Units pursuant to the PDS, without any Mallesons' PDS
Warnings being given to the limited class comprising Potential RCM Stapled Unit
Acquirers;
(c) agreeing to the inclusion, in the PDS, of content drafted by Mallesons in the
course of Mallesons' PDS Preparation, without any Mallesons' PDS Warnings
being given to the limited class comprising Potential RCM Stapled Unit Acquirers;
and, or in the alternative
(d) agreeing to, or acquiescing in, the issue of the PDS which named Mallesons as
having advised in connection with the offer of RCM Stapled Units pursuant to the
PDS, without any Mallesons' PDS Warnings being given to the limited class
comprising Potential RCM Stapled Unit Acquirers,
Part D. AECOM Australia's Apportionment Defences
248
Mallesons thereby represented to the limited class comprising Potential RCM Stapled
Unit Acquirers that:
(e) Mallesons had exercised the skill, care and diligence that could reasonably be
expected of a specialist with Mallesons' Expertise and knowledge or, in the
alternative, due skill, care and diligence or, in the alternative, reasonable skill,
care and diligence in undertaking Mallesons' RCM IPO Actions or, in the
alternative, Mallesons' PDS Preparation and, or in the alternative, in providing
advice in connection with the offer of RCM Stapled Units pursuant to the PDS;
(f) Mallesons' RCM IPO Actions or, in the alternative, Mallesons' PDS Preparation
and, or in the alternative, advice provided in connection with the offer of RCM
Stapled Units pursuant to the PDS was, or were, the product of the application, by
Mallesons, of:
(i) the skill, care and diligence that could reasonably be expected of a
specialist with Mallesons' Expertise and knowledge;
(ii) due skill, care and diligence; and, or in the alternative
(iii) reasonable skill, care and diligence; and, or in the alternative
(g) no Mallesons' PDS Warnings were required,
(Mallesons' PDS Representations).
Mallesons' PDS involvement and Mallesons' PDS Negligence
229. If and insofar as:
(a) AECOM Australia is found to have committed AECOM Australia's Alleged
Wrongful Acts in whole or in part because AECOM Australia's Consented Material
or, in the alternative, the PDS, did not contain the Alleged Mallesons Omissions
(which is denied);
(b) any Class Member suffered any Class Member Corporations Act Loss and, or in
the alternative, Class Member Negligence Loss as alleged or at all (which is
denied);
(c) such Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss was caused by AECOM Australia's Alleged Wrongful
Acts in whole or in part because AECOM Australia's Consented Material or, in the
alternative, the PDS, did not contain the Alleged Mallesons Omissions (which is
denied); and
(d) AECOM Australia is liable for such Class Member Corporations Act Loss and, or
in the alternative, Class Member Negligence Loss as alleged or at all (which is
denied),
then, in those circumstances:
(e) the material facts or matters giving rise to AECOM Australia's Alleged Wrongful
Acts insofar as they comprised or concerned Alleged Mallesons Omissions were
facts or information:
(i) relevant to whether the PDS was defective within the meaning of section
1022A of the Corporations Act and, or in the alternative, the PDS was not
prepared with reasonable care; and
Part D. AECOM Australia's Apportionment Defences
249
(ii) which Mallesons knew or, by reason of Mallesons' RCM IPO Actions or, in
the alternative, Mallesons' PDS Preparation and, or in the alternative,
providing advice in connection with the offer of RCM Stapled Units
pursuant to the PDS, and, or in the alternative, their knowledge of the
Mallesons' Traffic Forecast Facts, ought to have known;
(f) the PDS was defective within the meaning of section 1022A of the Corporations
Act and that Class Member will have suffered Class Member Corporations Act
Loss and, or in the alternative, Class Member Negligence Loss by reason of their
reliance upon the PDS or, in the alternative, by reason of the existence of the
PDS if and insofar as reliance is not a relevant pre-requisite to the entitlement to
recover such loss or damage (which is denied);
(g) Mallesons:
(i) was a person who, directly or indirectly, caused the PDS to be defective
or contributed to it being defective within the meaning of section
1022B(3)(b)(ii) of the Corporations Act;
(ii) did not take reasonable steps to ensure that the PDS would not be
defective; and
(iii) is a person from whom the Class Members are entitled to recover their
loss and damage pursuant to section 1022B(2) of the Corporations Act;
and, or in the alternative
(h) in breach of Mallesons' PDS Duties of Care:
(i) Mallesons' RCM IPO Actions or, in the alternative, Mallesons' PDS
Preparation and, or in the alternative, advice provided in connection with
the offer of RCM Stapled Units pursuant to the PDS:
(A) was, or were, not undertaken, prepared or given (as the case may
be), by Mallesons, with the skill, care and diligence that could
reasonably be expected of a specialist with Mallesons' Expertise
and knowledge or, in the alternative, due skill, care and diligence,
or in the alternative, reasonable skill, care and diligence; and, or in
the alternative
(B) could not safely be relied upon by any Potential RCM Stapled Unit
Acquirers in deciding whether to acquire RCM Stapled Units;
(i) Mallesons' PDS Representations were:
(i) made in breach of Mallesons' PDS Duties of Care; and
(ii) relied upon by the Class Members;
(j) in breach of Mallesons' PDS Duties of Care, Mallesons failed to give Mallesons'
PDS Warnings to the limited class comprising Potential RCM Stapled Unit
Acquirers,
(hereafter, the breaches of Mallesons' PDS Duties of Care alleged in sub-
paragraphs (h) - (j) above are together referred to as Mallesons' PDS
Negligence); and, or in the alternative,
(k) Mallesons' PDS Negligence, caused, or in the alternative, materially contributed
to the Class Member Consequences; and, or in the alternative
Part D. AECOM Australia's Apportionment Defences
250
(l) but for Mallesons' PDS Negligence, none of the Class Member Consequences
would have occurred.
230. If AECOM Australia has any liability to any Class Member for Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) then, by reason of the matters alleged in paragraphs 223 - 229 herein,
Mallesons is also liable to that Class Member for that Class Member Corporations Act
Loss and, or in the alternative, Class Member Negligence Loss.
231. In the premises, any liability of AECOM Australia in relation to that Class Member
Corporations Act Loss and, or in the alternative, Class Member Negligence Loss (which
is denied) should be reduced, under the Apportionment Legislation, to reflect that
proportion of the Class Member Corporations Act Loss and, or in the alternative, Class
Member Negligence Loss which the Court considers just having regard to the extent of
Mallesons' responsibility for that Class Member Corporations Act Loss and, or in the
alternative, Class Member Negligence Loss.
Part D. AECOM Australia's Apportionment Defences
251
Date: 11 July 2014 20 April 2016
Signed by Mark Desmond Chapple
Lawyer for the Respondent
This pleading was prepared by Dr Andrew Bell SC, Elliot Hyde of Counsel, Dr Ruth Higgins of
Counsel and Mark Chapple and Jayme-Lyn Hendriks of Baker & McKenzie.
Certificate of lawyer
I Mark Desmond Chapple certify to the Court that, in relation to the defence filed on behalf of the
Respondent, the factual and legal material available to me at present provides a proper basis for:
(a) each allegation in the pleading; and
(b) each denial in the pleading; and
(c) each non admission in the pleading.
Date: 11 July 2014 20 April 2016
Signed by Mark Desmond Chapple
Lawyer for the Respondent