River City Aecom Defence

4,
rUILIA
17:
Form 33
Rule 16.32
ORIGINAL
T;
17:
r_77 D
.sor
0.4o
Further Amended Defence r te, c . 6.

No.
757 ot 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 appointed) ACN 117 343 361
Second Respondent
RiverCity Motorway Services Pty Ltd (Administrators appointed) (Receivers and Managers
appointed) ACN 117 139 992
Third Respondent
Headings are used in this Further Amended Defence for convenience only. They do not
form part of the response by the Respondent (AECOM Australia) to the Amended
Statement of Claim filed on 1 August 2012 (the Amended Statement of Claim).
Unless the context requires otherwise, AECOM Australia adopts the defined terms used
in the Amended Statement of Claim, but does not admit any factual assertions contained
in, or in any way implied by, any defined term used in the Amended Statement of Claim
and repeated in this Further Amended Defence.
Preliminary
1.
To the extent that paragraph 1 of the Amended Statement of Claim makes allegations
against AECOM Australia, AECOM Australia:
AECOM Australia Pty Ltd (ACN 093 846 925) (formerly known as
Maunsell Australia Pty Ltd), First Respondent
Mark Desmond Chapple and Dr Ruth Higgins of counsel and settled by
Prepared by (name of persondlawyer)
Dr Andrew Bell SC.
Law firm (if applicable)
Baker & McKenzie
Tel
+ 61 2 8922 5227
Fax
+61 2 9225 1595
Email
Mark.Chappleabakermckenzie.com
Address for service
Level 27, A.M.P. Centre, 50 Bridge Street, Sydney NSW 2000
(include state and postcode)
Filed on behalf of (name & role of party)
[Form approved 01/08/2011]
(a)
does not know and therefore cannot admit that the Applicants or any Group
Members (individually a Class Member and together, the Class Members)
acquired an interest in the securities referred to in sub-paragraph (a) (the 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 Amended Statement of Claim 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.
2.
AECOM Australia does not know and therefore cannot admit paragraph 2 of the
Amended Statement of Claim.
3.
4.
AECOM Australia admits paragraph 4 of the Amended Statement of Claim.
RiverCity Motorway Group

5.
6.
As to paragraph 5 of the Amended Statement of Claim, AECOM Australia:

(a)
admits that RCM Management is and was at all material times a company
registered pursuant to the Act; and
(b)
otherwise does not know and therefore cannot admit paragraph 5.
As to paragraph 6 of the Amended Statement of Claim AECOM Australia:

(a)
admits that RCM Services is and was at all material times a company registered
pursuant to the Act; and
(b)
7.
8.
9.
10,
11,
AECOM Australia does not know and therefore cannot admit paragraph
11 of the
Clem7 Tunnel
12.

(a)
says that the Brisbane City Council (BCC) granted a 45 year concession to
finance, design, construct and operate the Tunnel (the NSBT Concession) to:
(1
(ii)
(b)
13.
RiverCity Motorway Asset Nominee Pty Limited (Administrators

Appointed) (Receivers and Managers Appointed) (RCM Asset) as trustee
of RCMAT; and
RCMPL; and
otherwise does not know and therefore cannot admit paragraph 12,

(a)
admits that the Tunnel opened to traffic on or about 16 March 2010; and
(b)
Product Disclosure Statement

14.
In relation to paragraph 14 of the Amended Statement of Claim, AECOM Australia:

(a)
admits that RCM Management was the responsible entity of RCMIT and RCMHT
(together, the RCM Trusts) on or about 21 June 2006;
(b)
admits that RCM Management 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 RCM Management was the issuer of the PDS;
(f)
says that, in the PDS, RCM Management stated that:
(g)
15.
16.
(i)
it had previously appointed RCM Services to provide certain

administrative and other services to RCM Management;
(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

(a)
admits that, in the PDS, RCM Management stated that RCM Services had
prepared the PDS as alleged in paragraph 15 of the Amended Statement of
Claim; and
(b)
otherwise does not know and therefore cannot admit that RCM Services in fact
prepared the PDS as alleged in paragraph 15.

(a)
admits that, in the PDS, RCM Management stated that RCM Services had given
the consent alleged; and
(b)
17.
18,
otherwise does not know and therefore cannot admit that RCM Services had in
fact given the consent alleged in paragraph 16.

(a)
says that it gave the consent as set out in the particulars to paragraph 17 in
respect of the PDS (the AECOM Australia PDS Consent);
(b)
will refer to the terms of the AECOM Australia PDS Consent for their full force and
effect at any trial; and
(o)
otherwise admits paragraph 17.

(a)
says that the "Consented Material" only comprised the statements to which
AECOM Australia expressly consented in writing to being included in the PDS;
(b)
admits that the Consented Material included the Summary Letter and that the
Summary Letter contained certain projections of future average annual daily
traffic for the Tunnel far a stated scenario;
(c)
will refer to the terms of the Summary Letter for their full force and effect at any
trial;
(d)
says the Consented Material otherwise only comprised (the Additional
Consented Material):
(a)
(i)
the first sentence of section 7.5.2 of the PDS;
(ii)
the fifth paragraph of section 10.11 of the PDS;
(iii)
the sixth paragraph of section 10.12 of the PDS; and
(iv)
the definition of "Traffic Expert" in section 11 of the PDS; and
otherwise denies paragraph 18 if, and insofar as, it alleges that AECOM Australia
consented to any other statements being included in the PDS apart from the
Summary Letter and the Additional Consented Material.
Alleged issue of RCM Stapled Units to Applicants
19.
20.
Earlier Forecasts
21.

(a)
says that its earlier forecasts were in respect of a possible Brisbane North South
Bypass Tunnel across the Brisbane River at or about where the Tunnel is now
located (the Possible NSBT Tunnel), rather than the Tunnel;
22.
(b)
says that its earlier forecasts in respect of the Possible NSBT Tunnel 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 its forecasts in respect of the Tunnel 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.

(a)
refers to and repeats its response at paragraph 21 herein;
(b)
admits sub-paragraphs (a) and (b);
(c)
admits that the outcomes of those earlier forecasts were as set out in subparagraph (c);
(d)
denies sub-paragraph (d); and
(e)
further says that references by AECOM Australia in earlier forecasts to a notional

capacity of 95,000 vehicles were references to the notional vehicle capacity of the
Possible NSBT Tunnel, rather than the Tunnel.
The allegation that the Consented Material contained misleading or deceptive statemen
ts
Forecasts
23.

(a)
admits that the Forecasts set out in paragraph 23 in respect of the "base"
scenario, which was otherwise known as the equity scenario (the Base/Equity
Scenario), 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/Equity Scenario;
(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/Equity Scenario;
(ii)
other forecasts, using different and additional conservative assumptions

and caps on daily traffic flows, had been prepared for another scenario
(known as the "bank" scenario) for debt markets (the Debt Market
Forecasts);
(iii)
the Debt Market Forecasts for the "bank' scenario produced lower traffic
forecasts than the Forecasts for the Base/Equity Scenario as a result of
the different and additional conservative assumptions and caps on daily
traffic flows alleged in sub-paragraph (ii) herein; and
(iv)
(d)
RCM Management considered the Base/Equity Scenario traffic forecast to

be the most appropriate traffic forecast and had thus directed that
AECOM Australia provide a summary letter of that scenario;
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 Tunnel traffic volumes for the
Base/Equity Scenario, made:
within the time and budget available for the assignment; and
using reasonably available data and other information, including
assumptions and forecasts pertaining to population, population growth,
employment, land use, economic development and trip generation
developed, and directly or indirectly provided, by the National Institute of
Economics and Industry Research (NIEIR) to AECOM Australia (NIEIR's
Forecasts);
(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;
(iii)
traffic volumes on the future road network of a large and rapidly growing
city such as Brisbane depend upon many factors, including:
(A)
future population and employment demographics; and
(B)
traffic and congestion levels on the road network, taking account

of future changes to the city and its road network;
(iv)
the traffic modelling process, from which the Forecasts were derived,
involved various steps, each with a number of inputs;
(v)
each of the following were steps or inputs in that traffic modelling process:
(A)
estimates of road trips taken during the average weekday two

hour morning peak period (AM Peak);
(B)
assumptions as to trip purposes;
(C)
estimates and forecasts of trip origins and trip destinations and

estimates and assumptions pertaining to population growth,
employment, land use and regional economic development, which
were the subject of NIEIR's 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)
assumed expansion and annualisation factors;
(H)
ramp up assumptions and estimates;
(1 )
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 Tunnel and associated road network
changes: and
(J)
an assumption that the ultimate design of the Tunnel would deliver

the capacity required to carry the forecast traffic flows;
(vi)
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;
(vii)
AECOM Australia could not, and did not, guarantee that the Forecasts or
other projected outcomes would be achieved;
(viii)
the Forecasts were only a prediction of what might happen in the future
and actual future Tunnel traffic volumes could vary materially from the
Forecasts by reason of numerous factors;
(ix)
actual future Tunnel 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;
(x)
examples of factors which would affect actual future Tunnel traffic

volumes, both directly and indirectly, included:
(A)
the capacity of the Tunnel and its feeder roads;
(B)
additional andtor 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 Tunnel;
(E)
the quality and proximity of alternative roads and other transport

infrastructure;
(xi)
(xii)
(F)
toll rates; and
(0)
fuel prices;
there was a significant risk that the Tunnel's actual traffic volumes and
revenue may be adversely affected by the factors identified in section 8 of
the PDS, which included, but were not 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 Tunnel 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

Tunnel would service;
(K)
drivers' willingness to pay tolls; and
(L)
whether the benefits offered by the Tunnel (including travel time

savings) were considered by drivers to be worth the payment;
there was both an obvious risk and an inherent risk that actual future
traffic volumes in the Tunnel would be materially below the Forecasts,
through no fault of AECOM Australia, if NIEIR's Forecasts were to prove
to be overly optimistic for any reason, including if:
(A)
actual economic growth was lower andfor slower than was

forecast or assumed in NIEIR's Forecasts, either generally or in
zones of particular relevance to the Tunnel;
(B)
actual population was different and/or or actual population growth

was lower than was forecast or assumed in NIEIR's Forecasts,
either generally or in zones of particular relevance to the Tunnel;
(C)
actual employment and/or actual employment growth was lower

than forecast or assumed in NIEIR's Forecasts, either generally or
in zones of particular relevance to the Tunnel;
(D)
there were unanticipated increases in actual unemployment which

NIEIR had not forecast or taken into account in NIEIR's Forecasts,
either generally or in zones of particular relevance to the Tunnel;
(E)
actual wages and/or actual wages growth was lower than forecast
or assumed in NIEIR's Forecasts, either generally or in zones of
particular relevance to the Tunnel; and/or
(F)
unplanned or unexpected changes in public transport policy

negatively impacted the trip matrices produced by NIEIR by
making public transport more attractive;
(xiii)
AECOM Australia did not undertake any duty, nor did it accept any
responsibility, to potential acquirers of RCM Stapled Units;
(xiv)
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 Tunnel
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);
(xv)
RCM Management, as the responsible entity of the RCM Trusts and the
proposed and ultimate issuer of RCM Stapled Units, had agreed to
indemnity 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); and
(xvi)
investors in RCM Stapled Units bore the risk of any claims being made
against AECOM Australia for which AECOM Australia could claim against
RCM Management under the RCM Trusts Indemnity;
(f)
will refer to the Summary Letter for its full force and effect at any trial;
(9)
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 Tunnel, amongst many other things;
(ii)
traffic modelling and forecasting:
(iii)
(A)

assumptions;
(S)
(C)
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 Tunnel was underpinned by RCM Management's

belief (the RCM Growth Belief) that:
(A)
the Tunnel 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
Tunnel's 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 provided by NIEIR in NIEIR's

Forecasts and not by AECOM Australia;
(viii) but for NIEIR's Forecasts, RCM Management would not have held the
RCM Growth Belief;
(ix)
traffic volumes may not grow at the rate or at the times projected;
(x)
investors in RCM Stapled Units bore the risk that the Tunnel's traffic
volumes may be adversely affected by various factors;
(xi)
actual future Tunnel 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;
(xii)
examples of factors which would affect actual future Tunnel traffic

volumes, both directly and indirectly, included:
(A)
the capacity of the Tunnel and its feeder roads;
(B)
additional and/or unexpected roadway alternatives;
(C)

economic growth (or decline) in Brisbane;
10
(D)
the Tunnel;
(E)
the quality and proximity of alternative roads and other

infrastructure;
(F)
toll rates; and
(G)
fuel prices;
(xiii) there was a significant risk that the Tunnel's actual traffic volumes and
revenue may be adversely affected by the factors identified in section 8 of
the PDS which included, but were not 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 Tunnel 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)

(F)
(G)
the expansion factors used in the Forecasts;
(H)
the penetration of a-tolls into the marketplace;
(I)
(J)
industrial and residential shifts in the area of Brisbane that the

Tunnel would service;
(K)
(L)
whether the benefits offered by the Tunnel (including travel time

savings) were considered by drivers to be worth the payment;
(xiv) 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
Tunnel, the RiverCity Motorway Group's financial condition and the value
of any investment in RCM Stapled Units if there were subsequent adverse
developments;
(xv)
there was both an obvious risk and an Inherent risk that actual traffic
volumes using the Tunnel, the results of operating the Tunnel, the
RiverCity Motorway Group's financial condition and the value of RCM
Stapled Units would be materially adversely impacted by subsequent
adverse developments in:
11
(A)
economic conditions, including lower and/or slower and/or

different growth, lower employment and/or higher unemployment
and/or declines in consumer sentiment and/or consumer
spending, either generally or in zones of particular relevance to
the Tunnel;
(B)
demography and land use, including lower or different population

and/or lower population growth and/or adverse changes in land
use, either generally or In zones of particular relevance to the
Tunnel;
(C)
network configuration, including developments which made

competing routes relatively more attractive compared to the
Tunnel, especially in zones of particular relevance to the Tunnel;
(D)
network congestion, in circumstances in which declines in network

congestion made un-tolled alternatives significantly more attractive
than a tolled Tunnel;
(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, including by

reason of sudden and/or significant declines in economic
conditions either generally or in zones of particular relevance to
the Tunnel;
(xvi)
nothing in the PDS should be construed as a recommendation

concerning, or to invest in, the RCM Stapled Units;
(xvii)
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;
(xviii) the RiverCity Motorway Group's debt facilities may not be available if the
Tunnel performed poorly;
(xix)
an investment in the RCM Stapled Units would be subject to investment

risk, including possible loss of capital invested;
(xx)
repayment of capital was not guaranteed; and
(xxi)
AECOM Australia had been granted the RCM Trusts Indemnity.
Actual traffic
24.

(a)
admits that actual traffic volumes in the Tunnel have been lower than predicted in
the Forecasts in respect of the period up to and including April 2012; and
(b)
12
Alleged misleading or deceptive Forecasts

25.
26.

(a)
admits sub-paragraph (a);
(b)
admits that actual traffic volumes in the Tunnel 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.
AECOM Australia denies paragraph 26 of the Amended Statement of Claim, 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 (including N1EIR's Forecasts) 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 Forecasts;
(e)
in developing and implementing AECOM Australia's traffic 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
competent professional practice;
(f)
the mere fact that actual traffic volumes in the Tunnel up to and including April
2012 have been 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;
(g)
actual traffic volumes using the Tunnel up to and including April 2012 were below
the Forecasts because of, or, in the alternative, materially because of, the
combined effects of a number of subsequent, significant, adverse factors (the
Subsequent Adverse Factors), including:
different population and/or lower or different population growth and/or
adverse changes in land use compared to that forecast and assumed in
NIEIR's Forecasts, especially in zones of particular relevance to the
Tunnel;
(ii)
actual economic growth being lower and different than forecast and
assumed in NIEIR's Forecasts:
13
(iii)
(A)
both generally and in zones of particular relevance to the Tunnel;

and
(B)
especially within the 12-18 month period prior to the opening of

the Tunnel on or about 16 March 2010 and following, during which
period actual economic growth was significantly lower than
forecast and assumed in NIEIR's Forecasts, in particular due to
the unanticipated and severe effects of the global financial crisis
(the GFC);
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 Tunnel: and
(B)
remained significantly higher at or about the time the Tunnel

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 N[EIR's Forecasts, including 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 Tunnel, including 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, including 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, such as:

(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
(C)
the failure to implement what had been a planned T3 lane on the

Story Bridge;
(x)
a resultant significant decline in network congestion, both generally and in

zones of particular relevance to the Tunnel, which makes untolled
alternatives significantly more attractive than the tolled Tunnel; and
(xi)
a resultant decline in driver capacity and/or willingness to pay to tolls.
14
Alleged further misleading or deceptive statements in Consented Material
27.
AECOM Australia denies paragraph 27 of the Amended Statement of Claim, and further
says that:
(a)
AECOM Australia denies that the Consented Material at pages 91, 92 and 97 of
the PDS (being pages of the Summary Letter) stated that the assumptions
adopted by AECOM Australia for its traffic modelling of the Base/Equity Scenario
were "conservative':
(b)
AECOM Australia's statements in the Consented Material, at pages 91 and 92 of

the PDS, that any assumptions were "conservative", related only to the
assumptions used in the "bank" scenario and not the Base/Equity Scenario as
alleged or at all;
(C)
such statements as AECOM Australia did make, in relation to the reasonableness

of assumptions used for the purposes of its modelling of the Base/Equity
Scenario, were statements as to its belief that those assumptions were
reasonable and that it did, in fact, believe those assumptions to be reasonable;
(d)
in the alternative to (c) if, which is denied, AECOM Australia stated that the
assumptions it used for the purposes of its modelling of the Base/Equity Scenario
were, in fact, reasonable (rather than stating its belief that those assumptions
were reasonable) it was, in fact, reasonable to use those assumptions for that
purpose;
(e)
such statements as AECOM Australia did make as to the Forecasts being "based
on sound inputs and appropriate modelling processes" were statements as to its
belief that the Forecasts were "based on sound inputs and appropriate modelling
processes" and that it did, in fact, believe that the Forecasts were "based on
sound inputs and appropriate modelling processes";
(f)
in the alternative to (e) 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";
(9)
AECOM Australia denies that it wrongly overstated the size of the market for the
Tunnel and misstated the operation of Brisbane's existing road network in the
event of the opening of the Tunnel;
(h)
AECOM Australia denies that the statements attributed to AECOM Australia in

sub-paragraph (b) of the particulars to paragraph 27 of the Amended Statement
of Claim were Consented Material;
(i)
AECOM Australia is not required to plead to the particulars of paragraph 27, and
in any event cannot otherwise respond to the particulars in paragraph (b) (i)-(ii) of
paragraph 27 because the formulation of paragraph 27 of the Amended
Statement of Claim and those particulars is both ambiguous and embarrassing;
0)
AECOM Australia denies that it relied upon "population, land-use, economic

growth and employment growth forecasts for Brisbane for the period from 2005 to
2011 which were overly optimistic with a compound inflationary effect";
15
(k)
the population, land-use, economic growth and employment growth forecasts for
Brisbane for the period from 2005 to 2011 upon which AECOM Australia did rely
in the preparation of the Forecasts;
(i)
were prepared and provided by NIElR 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 employment growth assumptions and
forecasts and/or 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)
were contained within NlEIR's Forecasts;
(iii)
were based upon reasonable grounds;
(iv)
further, or in the alternative, to (iii), were reasonably believed by AECOM

Australia to be based upon reasonable grounds;
(v)
were not overly optimistic;
(vi)
further, or in the alternative, to (v), were reasonably believed by AECOM

Australia not to be overly optimistic; and
(vii)
were reasonably relied upon by AECOM Australia;
(I)
AECOM Australia denies the allegation made against it in respect of Tunnel

catchment areas;
(m)
in relation to sub-paragraph (c) of the particulars to paragraph 27 of the Amended

Statement of Claim:
(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/Equity Scenario
and the "bank" scenario prepared for consideration by the debt markets;
(ii)
AECOM Australia denies that the statement set out in sub-paragraph

27(m)(i) herein was wrong;
(iii)
AECOM Australia included a sufficient description of the "bank" scenario

in the Summary Letter, including an explanation that:
(A)
the "bank" scenario took into account different or additional

conservative assumptions compared to the Base/Equity Scenario
as well as caps on daily flows;
(B)
the "bank" scenario produced traffic forecasts which were lower

than the Forecasts in respect of the Base/Equity Scenario as a
result; and
16
(C)
(iv)
(n)
RCM Management considered the Base/Equity Scenario 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 of that scenario; and
in those circumstances, denies that there is any reasonable basis for the
implication alleged against AECOM Australia; and
in relation to sub-paragraph (d) of the particulars to paragraph 27 of the Amended

Statement of Claim:
(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 Tunnel
facility would deliver the capacity required to carry the traffic volumes
predicted by the Forecasts; and
(ii)
in the alternative to (i), 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 Tunnel or the operation of Brisbane's existing road
network in the event of the opening of the Tunnel.
Alleged omissions from the Consented Material
28.

(a)
refers to and repeats its response at paragraph 23 herein;
(b)
says that the Summary Letter which formed part of the 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/Equity
Scenario as documented in AECOM Australia's full traffic report to RCM, titled
"North South Bypass Tunnel Traffic Report Forecasts for the North South Bypass
NSBT Project", which report was dated 22 May 2006 (the Final May 2006 Traffic
Report);
(c)
denies that the Consented Material omitted information that it would be

reasonable, for a person considering, as a retail client, whether to acquire RCM
Stapled Units (a Potential RCM Stapled Unit Acquirer), to expect to find in the
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 the 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 methodology and its
resultant traffic forecast for the Base/Equity Scenario documented in the
Final May 2006 Traffic Report; and
(iv)
the length and complexity of the Final May 2006 Traffic Report;
17
(d)
(e)
(f)
says 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 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 daily and
annual expansion 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 Tunnel and its revenue
included risks relating to the expansion factors used in the Forecasts;
denies that additional statements in respect of either the process of, or risks
associated with, AM Peak modelling, or the use of expansion factors (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;
(ii)
the nature and complexity of traffic modelling and forecasting; and
(iii)
disclosures made in both the Consented Material, and otherwise in the

PDS, as to the nature and complexity of, and the numerous obvious risks,
and forecasting, including in relation to the use of expansion factors;
further says that it would not have been reasonable for a Potential RCM Stapled
Unit Acquirer to expect to find Additional AM Peak Modelling Statements in the
Consented Material given:
(i)
the explanations that were given as to the modelling process, including in

relation to AM Peak modelling and expansion factors;
(ii)
the nature and complexity of traffic modelling and forecasting;
(iii)

Inherent risks and intrinsic uncertainties associated with, traffic modelling
and forecasting, including in relation to the use of expansion factors; and
18
(iv)
29.
Final May 2006 Traffic Report;
(9)
denies that there were omissions in the Consented Material in relation to AECOM
Australia's use of AM Peak modelling; and
(h)
denies that there were omissions in the Consented Material in relation to AECOM
Australia's use of, and risks associated with the use of, expansion factors
(whether daily or annual).
In further answer to paragraph 28(b)(i) of the Amended Statement of Claim, AECOM

Australia:
(a)
admits that Parsons Brinkerhoff (PB) had stated, in its peer review of AECOM
Australia's base year model and base year model calibration for the Tunnel, that
ideally that base year model would have extended to an "all day" traffic model
(the PB Preference Statement);
(b)
says that, notwithstanding the PB Preference Statement, PB:

(I
(H)
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, while sound data for validation of the base year AM Peak trip table
was available in the form of the Australian Bureau of Statistics (ABS)
journey to work data; and
concluded that:
(A)
the duration of the AM Peak was adequate to reflect travel

throughout the traffic network; 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,
(together, PB's Ultimate Conclusions);

(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 PB's
Preference Statement in the Consented Material or, in the alternative, at least
without an additional clarifying explanation as to the substance and effect of PB's
Ultimate Conclusions (the Further PB Clarifying Statement);
(d)
denies that a combination of the PB Preference Statement, 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;
(e)
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 the PB Preference
Statement in the Consented Material given:
(i)
PB's Ultimate Conclusions were that AM Peak was the most robust period
for Brisbane in modelling terms, as existing empirical data was more
readily available for this period, while sound data for validation of the base
19
year AM Peak trip table was available in the form of the ABS journey to
work data;
30.
(ii)
that AM Peak was, in fact, the most robust period for Brisbane in
modelling terms because existing empirical data was more readily
available for this period, while sound data for validation of the base year
AM Peak trip table was available in the form of the ABS journey to work
data;
(iii)
PB's Ultimate Conclusion that AECOM Australia's base year model was a
suitable base year model on which to base forecasting models;
(iv)
the disclosures made in both the Consented Material and otherwise in the
PDS as to the nature and complexity of, and the numerous obvious risks,
and forecasting; and
(v)
the fact that including the PB Preference Statement would have required
the inclusion of the Further PB Clarifying Statement in order to properly
reflect PB's Ultimate Conclusions and so as to avoid the PB Preference
Statement causing confusion or potential confusion or rendering the
Consented Material misleading or likely to mislead; and
(vi)
Final May 2006 Traffic Report.
In further answer to paragraph 28(b)(ii) of the Amended Statement of Claim, AECOM

Australia:
(a)
says that PB was retained by the sponsors of the Tunnel project to undertake a
review of AECOM Australia's base year model and to provide advice to those
sponsors and to financiers regarding the model's calibration;
(b)
says that, to the best of AECOM Australia's current knowledge and belief, PB was
not retained by those sponsors or financiers to review AECOM Australia's
forecasting assumptions in respect of future years or its resultant traffic forecasts;
(c)
says that the Summary Letter accurately 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;
(d)
denies that statements as to all of the things PB had not been asked to do by the
sponsors or RCM Management might reasonably have been expected to have
had a material influence on the decision making of a Potential RCM Stapled Unit
Acquirer;
(e)
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;
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 the Consented Material,
statements as to all of the things PB had not been asked to do by the sponsors or
RCM Management given:
20
31.
(1)
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)
In further answer to paragraph 28(c) of the Amended Statement of Claim, AECOM

Australia:
(a)
admits that the earlier forecasts had been prepared by AECOM Australia using
"all day" modelling;
(b)
says 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 prepared by
NIEIR and contained in NIEIR's 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 daily and
annual expansion 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 Tunnel and its revenue
included risks relating to the expansion factors used in the Forecasts;
(c)
says that the earlier forecasts and the Forecasts were not meaningfully
comparable, given that AECOM Australia's earlier forecasts were made in respect
of the Possible NSBT Tunnel using the Older EIS Information while AECOM
Australia's later Forecasts were made in respect of the Tunnel 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
Tunnel 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;
21
(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;
(g)
and would have been misleading or likely to mislead, to have included a
statement that the earlier forecasts had been prepared using an "all day" traffic
model (the All Day Statement) in the Consented Material or, in the alternative, at
least without an additional clarifying explanation as to why AM Peak modelling
provided a better basis for Tunnel traffic modelling for the base year in Brisbane
than
day" modelling, as to the substance and effect of PB's Ultimate
Conclusions and as to the many reasons why the earlier forecasts and the
Forecasts were not meaningfully comparable (the Further All Day Clarifying
Statement);
32.
(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)
Unit Acquirer to expect to find in the Consented Material any statement as to the
fact that the earlier forecasts were modelled on a different basis in all of the
circumstances, given:
(I)
the matters set out in sub-paragraphs 31(c) to (f) herein;
(ii)
(iii)

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 Ultimate Conclusions, and
so as to avoid the Consented Material causing confusion or potential
confusion or being misleading or likely to mislead; and
(v)
In further answer to paragraph 28(d) of the Amended Statement of Claim, AECOM

Australia:
(a)
admits that the Consented Material did not contain the earlier forecasts or any
reference to the percentage by which the Forecasts were higher than the earlier
forecasts (the Earlier Forecasts Statements);
(b)
says that the earlier forecasts and the Forecasts are not meaningfully
comparable, because AECOM Australia's earlier forecasts were made in respect
of the Possible NSBT Tunnel using the Older EIS Information while AECOM
Australia's later Forecasts were made in respect of the Tunnel using the Later
RCM Information;
22
(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 the earlier 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)
and would have been misleading or likely to mislead, to have included the Earlier
Forecasts Statements in the Consented Material having regard to:
(i)
the matters in sub-paragraphs 32(b) and (c) herein; 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 Tunnel 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 the Earlier Forecasts Statements, together with any
necessary further explanation as to why the earlier forecasts are not meaningfully
comparable with the Forecasts (the Further Earlier 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)
Unit Acquirer to expect to find that information in the Consented Material in all of
the circumstances, including given:
(I)
the matters set out in sub-paragraphs 32(b) to (d) herein;
(ii)
(iii)

and forecasting;
(iv)
the fact that including the Earlier Forecasts Statement would have
required the inclusion of the Further Earlier Forecasts Clarifying
Statement in order to properly reflect the fact that the earlier forecasts and
the Forecasts were not meaningfully comparable and so as to avoid the
Consented Material causing confusion or potential confusion or being
misleading or likely to mislead; and
(v)
23
33.
In further answer to paragraph 28(e) of the Amended Statement of Claim, AECOM

Australia:
(a)
does not know and therefore cannot admit the allegations as to the performance
of the Cross City Tunnel (the CCT) and the WestlinkM7 (M7);
(b)
admits that the Consented Material did not contain any reference to the
performance of either the COT or the M7 (Cross CityJM7 Statements);
(c)
says that neither the CCT nor the M7 were meaningfully comparable to the
Tunnel so as reasonably to require the inclusion of Cross City/M7 Statements in
the Consented Material;
(d)
and would have been misleading or likely to mislead, to have included the Cross
City/M7 Statements in the 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 Tunnel (the Further Cross City/M7
Clarifying Statement);
(e)
denies that including the Cross City/M7 Statements, together with any Further
Cross City/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 COT or the
M7 in the Consented Material in all of the circumstances, including given:
(i)
that neither the CCT nor the M7 were meaningfully comparable to the
Tunnel;
(ii)
(iii)

(iv)
34_
In further answer to paragraph 28(f) of the Amended Statement of Claim, 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.
35.
In further answer to paragraph 26(g) of the Amended Statement of Claim, AECOM

Australia refers to and repeats it response at paragraph 34 herein.
36.
In further answer to paragraph 28(h) of the Amended Statement of Claim, AECOM

Australia:
24
37.
(a)
admits that the Consented Material did not state that "the feeder routes" for the
Tunnel were "not constrained by capacity" in the off-peak period in 2005 (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 Tunnel were not fully congested in offpeak 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)
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)
In further answer to paragraph 28(i) of the Amended Statement of Claim, AECOM

Australia:
(a)
denies that the traffic forecast prepared by AECOM Australia for the BCC's
Feasibility Study in November 2004 stated that the notional daily capacity of the
Tunnel was 95,000 cars (the 2004 EIS Possible NSBT Tunnel Notional
Capacity Statement);
(b)
says that the 2004 EIS Possible NSBT Tunnel Notional Capacity Statement was
a reference to the notional vehicle capacity of the Possible NSBT Tunnel rather
than the Tunnel;
(c)
says that the Summary Letter expressly stated that the Forecasts were made
upon the assumption that the ultimate design of the Tunnel would deliver the
capacity required to carry the flows predicted in the Forecasts (the 2006
Summary Letter Tunnel 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 Tunnel Notional Capacity Statement in the Consented Material;
and
(e)
denies that the 2004 EIS Possible NSBT Tunnel 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 Tunnel Capacity Statement;
25
(f)
38.
39.
Unit Acquirer to expect to find the 2004 EIS Possible NSBT Tunnel Notional
Capacity Statement in the Consented Material in all of the circumstances, given:
(i)
the 2006 Summary Letter Tunnel Capacity Statement; and
(ii)
In further answer to paragraph 28(j) of the Amended Statement of Claim, AECOM

Australia:
(a)
says that the Summary Letter included the 2006 Summary Letter Tunnel Capacity
Statement;
(b)
denies that the Consented Material does not make any reference to the risks
associated with Tunnel capacity and says that the Summary Letter expressly
stated that traffic volumes could be affected by Tunnel capacity (the Further
Summary Letter Tunnel 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 Tunnel Capacity Statement and the
Further Summary Letter Tunnel Capacity Statement; and
(d)
Unit Acquirer to expect to find anything more on this topic in the Consented
Material in all of the circumstances given:
(i)
the 2006 Summary Letter Tunnel Capacity Statement and the Further
Summary Letter Tunnel Capacity Statement in the Summary Letter;
(ii)
(iii)

(iv)
In further answer to paragraph 28(k) of the Amended Statement of Claim, AECOM

Australia:
(a)
admits that the Consented Material did not contain a reference to an estimate
made in connection with the earlier 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);
(b)
denies that the Consented Material contains any statement as to the percentage
of through trips over the Three EIS Bridges;
26
(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:
(e)
(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;
says that, by contrast, the statements as to percentage through trips which

appear on pages 4 and 32 of the PDS are statements by RCM Management 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;
(1)
and would have been misleading or likely to mislead, to have included the 2005
Three EIS Bridges Through Trips Statement in the 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 2006 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);
(9
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)
Unit Acquirer to expect to find the 2005 Three EIS Bridges Through Trips
Statement in the Consented Material given:
(I)
27
40.
41.
(ii)

PDS, as to the nature and complexity of, and the numerous obvious,
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 the earlier
forecasts and the Forecasts were not meaningfully comparable and so as
to avoid the Consented Material causing confusion or potential confusion
or being misleading or likely to mislead; and
(iv)
In further answer to paragraph 28(1) of the Amended Statement of Claim, AECOM

Australia
(a)
refers to and repeats its response at paragraph 39 herein; and
(b)
says that, in all of those circumstances, the reference contended for in paragraph
28(1) of the Amended Statement of Claim would have been based on a false
premise and been false, misleading or likely to mislead if included in the
Consented Material.
In further answer to paragraph 28(m) and paragraph 28(n) of the Amended Statement of
Claim, AECOM Australia:
(a)
says that it was clear from the Consented Material, and other parts of the PDS,
that;
(i)
the Final 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 up to $1 million of the maximum amount of up to $2.5 million payable

to AECOM Australia as its retainer for that work was not payable unless financial
close was achieved;
(c)
admits that the Consented Material did not state that up to $1 million of that up to
$2.5 million retainer was not payable to AECOM Australia unless financial dose
was achieved;
(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;
28
(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
the full retainer would, in fact, be payable to AECOM Australia; and
(iii)
it was expressly disclosed in the Summary Letter that AECOM Australia

anticipated further engagements in respect of the Tunnel 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.
Alleged Contraventions by AECOM Australia
42.
43.

(a)
refers to and repeats its denial in paragraph 27(h) herein, that the statements
attributed to AECOM Australia in sub-paragraph (b) of the particulars to
paragraph 27 of the Amended Statement of Claim were Consented Material; and
(b)
otherwise admits that it consented to the inclusion of the Consented Material in

the PDS pursuant to section 1013K of the Act.

(a)
denies that sections 1013C and 1013E of the 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 10130 and 1013E of the 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
Act imposed any obligation upon AECOM Australia to provide any other
information in its Consented Material.
44.
AECOM Australia denies paragraph 31 of the Amended Statement of Claim and refers to
and repeats paragraphs 25 to 27 herein in answer to paragraph 25 to 27 of the Amended
Statement of Claim.
45.
and repeats paragraphs 28 to 41 herein in answer to paragraph 28 of the Amended
Statement of Claim.
46.

(a)
denies that it made the Misleading Statements and refers to and repeats
paragraphs 25 to 27 herein in answer to paragraph 25 to 27 of the Amended
Statement of Claim;
(b)
denies that there were Omissions and refers to and repeats paragraphs 28 to 41
herein in answer to paragraph 28 of the Amended Statement of Claim; and
(c)
says, in the alternative to (a) and (b) that if, which is denied, there were
Misleading Statements and/or Omissions, it denies that they were, either
29
separately or in combination, materially adverse from the point of view of a

Potential RCM Stapled Unit Acquirer for the purposes of section 1021L(1)(c) of
the Act; and
(d)
otherwise denies paragraph 33.
47.
AECOM Australia denies paragraph 34 of the Amended Statement of Claim.
48.
In further answer to paragraph 34 of the Amended Statement of Claim in respect of each

Class Member, AECOM Australia:
49.
(a)
denies that the Consented Material contained Misleading Statements and refers
to and repeats paragraphs 25 to 27 herein in answer to paragraph 25 to 27 of the
Amended Statement of Claim;
(b)
denies there were Omissions from the Consented Material and refers to and
repeats paragraphs 28 to 41 herein in answer to paragraph 28 of the Amended
Statement of Claim;
(c)
denies that the Forecasts were significantly inflated and refers to and repeats
paragraphs 26 and 27 herein;
(d)
does not know and therefore cannot admit whether any Class Member relied
upon the 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
the Consented Material; and
(ii)
it does not know and therefore cannot admit that any Class Member has
suffered loss or damage;
(g)
Member has suffered loss or damage it denies that the Class Member has
suffered loss or damage because the Consent was given by AECOM Australia;
and
(h)
Member has suffered loss or damage and if, which is denied, that Class Member
suffered that loss or damage because the 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 Events
by reason of the External Change Events Release and AECOM Australia refers to
and repeats paragraph 23 and 26(g) herein.
and repeats paragraphs 45 to 48 herein.
30
Alleged contraventions by RCM Management and RCM Services
50.
As to paragraphs 36 to 40 of the Amended Statement of Claim, AECOM Australia:

(a)
refers to and repeats paragraphs 25 to 41 herein in answer to paragraphs 25 to

28 of the Amended Statement of Claim; and
(b)
otherwise does not plead to those paragraphs as they make no allegation against
it.
Alleged negligence by AECOM Australia
51.

(a)
admits that it knew that the PDS containing the Summary Letter and the
Additional Consented Material was to be provided to Potential RCM Stapled Unit
Acquirers; and
(b)
52.
53.
In further answer to paragraph 42 of the Statement of Claim, AECOM Australia denies

that it was reasonably foreseeable by AECOM Australia that any Class Member would,
directly or indirectly through their advisors, rely on the Consented Material, in particular
given the matters set out in paragraph 23 herein, to which AECOM Australia refers and
repeats in further answer to paragraph 42 of the Amended Statement of Claim.
54.
55.
In further answer to paragraph 43 of the Amended Statement of Claim, AECOM Australia

denies that it was reasonable for any Class Member to, directly or indirectly through their
advisors, rely on the Consented Material, in particular given the matters set out in
paragraph 48 herein, to which AECOM Australia refers and repeats in further answer to
paragraph 43 of the Amended Statement of Claim.
56.
repeats paragraphs 51 to 55 herein in answer to paragraphs 41 to 43 of the Amended
Statement of Claim.
57.
58.

refers to and repeats paragraphs 25 to 41 and 46(a) and 46(b) herein.
59.
60.

refers to and repeats paragraphs 25 to 41, 46(a) and 46(b), 47, 48 and 51 to 58 herein.
61.
In the alternative to paragraphs 51 to 60 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;
31
(c)
that Class Member acquired RCM Stapled Units in reliance upon the Consented
Material or, in the alternative, the Summary Letter and the Forecasts; and
(d)
that Class Member suffered loss or damage as a result,
(an AECOM Australia Negligence Claim) then:

(e)
any loss or damage actually suffered 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 26(g) herein;
(f)
further, or in the alternative, to (e), any loss or damage 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 (e) and (f):
(I)
any loss and damage 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 loss and damage 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 sections SR and SS 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) (the Victorian Wrongs Act),

where a Class Member's cause of action arose in Victoria;
3.
the Law Reform Act 1995 (Old) and/or the Civil Liability Act
2003 (QId), where a Class Member's cause of action arose
in Queensland;
4.
the Wrongs Act 1954 (Tas) and/or the Civil Liability Act
2002 (Tas), where a Class Member's cause of action arose
in Tasmania;
32
62.
5.
the Civil Liability Act 1936 (SA) and the Law Reform
(Contributory Negligence and Apportionment of Liability)
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.
Further, and in answer to the whole of the Statement of Claim, if, which is denied, any
Class Member is otherwise entitled to recover loss or damage from AECOM Australia
either or both pursuant to section 1022B(2) of the 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 Tunnel of External Change Events (the External
Change Events Contract);
(c)
the Subsequent External Factors were External Change Events;
(d)
by reason thereof, the Class Member has released AECOM Australia from any
Corporations Act Claim and any Negligence Claim (together, the Class
Member's Claims) to which it might otherwise be entitled;
(e)
further, or in the alternative, to (d), the Glass 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 (e):

(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
33
which would entitle AECOM Australia to recover the equivalent amount

from that Class Member (Recovery Damages); and
(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.
Apportionment defences
63.
If, as is alleged by the Applicants at paragraph 46 of the Amended Statement of Claim

(but denied by AECOM Australia), any Class Member has suffered loss and damage by
reason of AECOM Australia's acts or omissions as alleged at paragraphs 41-45 of the
Amended Statement of Claim (AECOM Australia's Alleged Wrongful Acts) then the
AECOM Australia Negligence Claim made against AECOM Australia in respect of
AECOM Australia's Alleged Wrongful Acts in the Amended Originating Application is:
(a)
a claim for economic loss arising from a duty to take reasonable care; and
(b)
thereby an apportionable claim.

Particulars
Liability for AECOM Australia's Alleged Wrongful Acts is apportionable

under the:
64.
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 (Old), Part 2, sections 28 to 33; or, in the
alternative:
4.
Civil Liability Act 2002 (WA), Part 1F, sections 6AI to 5A0; 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.
AECOM Australia's allegations in the remaining paragraphs of this Further Amended

Defence (AECOM Australia's Apportionment Defences) are made without admission
and only for the purposes of AECOM Australia's Further Amended Defence insofar as it
relates to the reduction of any liability AECOM Australia may have to any Class Member
in respect of the AECOM Australia Negligence Claim (the existence of which liability is
again denied) so as to reflect the proportion of loss the Court considers just having
regard to any other person's responsibility for the same loss,
34
65.
For the purposes of AECOM Australia's Apportionment Defences only and without
admission save to the extent expressly stated below, AECOM Australia refers to and
repeats:
(a)
paragraphs 2-11 of the Amended Statement of Claim;
(b)
paragraph 12 of the Amended Statement of Claim and paragraph 12 herein,
(c)
paragraphs 13 and 14 of the Amended Statement of Claim;
(d)
paragraph 15 of the Amended Statement of Claim, save to the extent that it

alleges that RCM Services, on behalf of RCM Management, did not have any role
in preparing any of the Consented Material;
(e)
paragraph 16 of the Amended Statement of Claim;
(f)
paragraph 17 of the Amended Statement of Claim to the extent admitted by

AECOM Australia in paragraph 17 herein, and paragraph 17 herein;
(g)

(h)
paragraphs 19 and 20 of the Amended Statement of Claim;
(I)

(j)

(k)

(I)

AECOM Australia in paragraph 24 herein;
(m)
paragraph 25(a) and (b) of the Amended Statement of Claim; and
(n)
paragraphs 36-40 of the Amended Statement of Claim.
Background
66.
On 28 February 2005, the Queensland Government entered into a memorandum of

understanding with the BCC to facilitate the finance, design, construction and operation
of the Tunnel.
67.
By no later than April 2005, the following companies (together, the Sponsors) had
formed a consortium for the purpose of bidding, directly and, or in the alternative,
indirectly through special purpose vehicles to be created for that purpose (RCM SPVs),
for the right to design, finance, construct and operate the Tunnel (the NSBT Project):
(a)
Leighton Contractors Pty Ltd (Leighton);
(b)
RBS Group (Australia) Pty Limited (then known as ABN AMR() Australia Limited)
(ABN AMRO);
35
68.
(c)
Baulderstone Pty Limited (then known as Baulderstone Hornibrook Pty Limited

(Baulderstone); and
(d)
Bilfinger Berger Project investments Pty Limited (then known as Bilfinger Berger
Concessions Pty Limited) (Bilfinger).
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 able to be sued;
(b)
is and was a corporation within the meaning of section 4 of the Trade Practices
Act 1974 (Cth) (the TPA);
(c
supplied goods and services in the course of trade and commerce within the
meaning of the TPA;
(d)
(e)
had prior to all material times and by no later than 2005 prepared and made bids,
(either in its own right or as part of a consortium and either directly or through
special purpose vehicles), for or in respect of at least the following major toll road
infrastructure projects (the Prior Leighton Toll Road Projects):
(i)
the Eastern Distributor in Sydney, New South Wales (the ED);
(ii)
the Sydney Harbour Tunnel in Sydney, New South Wales (the SHT);
(iii)
the M7;
(iv)
the Lane Cove Tunnel in Sydney, New South Wales (the LCT);
(v)
the Mitcham Frankston Motorway in Melbourne, Victoria (the MFM); and
(vi)
the COT;
had thereby developed, and at all material times, had, and held itself out as
having:
(i)
(ii)
extensive experience in, and a deep and thorough understanding of, all
aspects of the development of major toll road infrastructure projects of
which the NSBT Project was an example, including:
(A)
the commissioning, co-ordinating and providing of instructions in

respect of, and input into or in connection with, the preparation of
forecasts of future traffic;
(B)
reporting on those forecasts;
(C)
the preparation of financial models;
(D)
the submission of bids in competitive tenders; and
(E)
the raising of debt and equity to fund those projects; and
a core competency in properly managing and understanding patronage

risk,
36
(together, Toll Road Expertise);

(f)
had, at all material times, including by reason of its Toll Road Expertise, extensive
knowledge of, a deep and thorough understanding of, and a core competency in,
all or, in the alternative, all of the material, assumptions, inputs, factors,
judgements, issues, risks and uncertainties involved in traffic forecasting, and
reporting on traffic forecasts, for proposed major toll road infrastructure projects of
which the NSBT Project was an example (Relevant Traffic Forecasting
Expertise), including extensive knowledge and experience of:
(i)
the different scenarios and bases upon which, and the different purposes
for which, traffic forecasts can be commissioned and prepared, including
that different traffic forecasts in respect of the same project could, and
would or, in the alternative, 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 (as the case may be):
(A)
a worse 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 andior
project (such as principal construction contractor, debt arranger
and/or equity underwriter);
(F)
lenders;
(G)
institutional or wholesale equity investors;
(H)
retail equity investors; or
(I)
in order to win a tender;
(ii)
the relevance of the context of the traffic forecaster's commission,

including the type(s) of, and the basis for, the forecasts commissioned,
the instructions given in relation to, and the time and budget allowed for,
that commission, and the use(s) to which the forecasts were to be put;
(iii)
the fact that traffic modelling and forecasting:

(A)

assumptions;
(B)
(C)
(iv)
the fact that traffic volumes may not grow at the rate andfor times
projected;
(v)
the fact that traffic forecasters cannot guarantee that all, or necessarily
any, estimates and assumptions upon which traffic forecasts are based
37
will, in fact, be correct or accurate or that projected future traffic volumes

or other project outcomes will be achieved;
(vi)
the fact 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;
(vii)
the fact that traffic volumes on a future road network of a large and rapidly
growing city depend upon many factors, including future population and
employment demographics, traffic and congestion levels on the road
network and future changes to the city and its road network;
(viii) the fact that the traffic modelling process, from which traffic forecasts are
derived, involves many various steps, each with a number of inputs which
may be interdependent, which would or may include:
(A)
traffic count 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;
(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)
toll model development;
(J)
trip assignment;
(K)
model calibration and validation;
(L)
expansion and annualisation factors;
(M)
base and future year estimates of traffic and travel time; and
(N)
assumptions in relation to government and council plans for

roadwork development;
(ix)
the relevance and effect of population, population growth or decline,

employment, land use (including the nature and locations of population
and employment opportunities and other sources or attractors of traffic),
economic development and trip generation;
(x)
the necessity for, and the role and importance of, assumptions and
forecasts pertaining to population, population growth, employment, land
use, economic development and trip generation;
38
(xi)
the fact 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 necessarily predicted by either the traffic
forecaster or those providing instructions, assumptions and/or inputs to
the traffic forecaster;
(xii)
the factors which could affect actual future traffic volumes, both directly
and indirectly, including:
(A)
(B)

(C)

economic growth (or decline);
(0)
industrial and residential shifts in the areas that the proposed toll
road would, or might, service;
(E)
the toll road;
(F)
the quality and proximity of alternative roads and other transport

infrastructure;
(G)
the capacity of a proposed toll road and its feeder roads;
(H)
the occurrence and timing of other planned road projects;

additional and/or unexpected roadway alternatives;
(J)
any failure to make anticipated or assumed network changes;
(K)
other future network changes;
(L)
(M)
toll rates;
(N)
the penetration of e-tolls into the marketplace (where applicable);
(0)
(P)
whether the benefits offered by the proposed toll road (including

travel time savings) were considered by drivers to be worth the toll
payment actually made and/or perceived to be made;
(xiii)
the adverse effect(s) that lower than assumed, or forecast, population,

population growth, employment, land use, economic development and/or
trip generation would, or may, have on actual traffic compared to forecast
traffic;
(xiv)
the adverse effect(s) that unanticipated, significantly lower consumer

confidence and/or disposable incomes and/or a sudden, sharp, significant
and enduring decline in consumer spending would, or may, have on
actual traffic compared to forecast traffic;
39
(xv)
the adverse effect(s) that an unanticipated recession or local, national or

global economic downtum(s) or crises would, or may, have on actual
traffic compared with forecast traffic;
(xvi)
the adverse effect(s) that an abnormal level of growth and/or abnormal

volatility in fuel prices would, or may, have on actual traffic compared to
forecast traffic;
(xvii)
the relevance and impact of the proximity and quality of alternative roads
and competing transport infrastructure;
(xviii) the potentially adverse effect(s) that existing and future government plans
and policies would, or may, have on actual traffic compared to forecast
traffic;
(xix)
the adverse effect(s) that significantly increased public transport usage

(either, or both, in absolute terms and relative to private vehicle usage),
would, or may, have on actual traffic compared to forecast traffic;
(xx)
the adverse effect(s) that adverse changes in network configuration

compared to forecast network configuration (including additional and/or
unexpected roadway alternatives) would, or may, have on actual traffic
compared to forecast traffic;
(xxi)
the adverse effect(s) that unanticipated significant declines in driver

capacity and/or willingness to pay tolls would, or may, have on actual
traffic compared to forecast traffic;
(xxii)
the adverse effect(s) that unanticipated lower network congestion would,

or may, have on actual traffic compared to forecast traffic;
(xxiii)
the material factors relevant to the assessment of the short and longer
term possible future capacity of a proposed toll road and its feeder roads,
including the anticipated rate of future improvements in vehicle
technology, and their impact upon traffic forecasts;
(xxiv) the applications and limitations of historical traffic data, including to

effectively calibrate a base year traffic model;
(xxv)
the choices and judgements to be made as to whether, and to what

extent, new or additional traffic surveys or traffic counts could, or should,
be undertaken in a given circumstance;
(xxvi) the available choices as between, and the advantages and disadvantages
of, forecasting traffic by reference to week day AM Peak traffic volumes
or, instead, by reference to week day All-Hour or other multi-period traffic
volumes;
(xxvii) the consequences of choosing to base traffic forecasts upon week day
AM Peak traffic volumes, rather than All-Hour or other multi-period traffic
volumes, including the resultant need to use expansion factors to forecast
future average weekday traffic demand for a proposed toll road;
(xxviii) the use and impact of, and the judgements, uncertainties, limitations and
risks involved in determining, appropriate expansion factors;
40
(xxix) the necessity for, the use and impact of, and the judgements,
uncertainties and risks involved in determining, annualisation factors to
predict future annual traffic demand for a proposed toll road based upon
estimated future average weekday traffic;
(xxx)
the use, value and inherent limitations, as a point of comparison and

guidance, of data regarding other roads, including other toll roads;
(xxxi) trip generation estimation;

(xxxii) assumptions and forecasts regarding trip purpose;
(xxxiii) toll choice and route predictions;
(xxxiv) the relevance, correlation and impact of network congestion, speed of
travel, traffic volumes and driver willingness to pay tolls to and upon
forecast toll road volumes;
(xxxv) issues concerning driver willingness to pay, and driver perception of the
cost and value, of tolls, including the impact of any inherent or other
features of a toll road on driver willingness to pay;
(xxxvi) the use, value and inherent limitations of using behavioural surveys to
understand driver preferences;
(xxxvii) issues relating to actual, and perceived, travel time savings, including
negative travel time savings;
(xxxviii)issues relating to the penetration and use of e-tolls into the relevant
market (where relevant);
()mix) estimating traffic "ramp-up" after opening;
(xl)
the inherent risks associated with forecasting future traffic and that risks
inevitably increased as the forecast period lengthened;
(xli)
the risk that actual future traffic volumes may be lower, including very
significantly lower, and that a new toll road project may prove to be
unsuccessful, or even financially disastrous, for owners, lenders and
investors through no fault of the traffic forecaster, including if:
(xlii)
(A)
third party inputs, including assumptions and/or forecasts, upon

which the traffic forecasts depended were to prove to be overly
optimistic for any reason; and/or
(B)
there were unanticipated adverse external developments,

including adverse external developments which were either not
reasonably capable of being predicted by the traffic forecaster
within the available scope, time and budget or which were not
required to be assumed or predicted by the traffic forecaster;
the preparation of both detailed and summary traffic reports;
(xliii) the inherent complexities involved in such traffic reports;
41
69.
70.
(xliv)
the explanations, disclosures, qualifications, exclusions, disclaimers and

other limitations typically associated with traffic forecasting and traffic
reports; and
(xlv)
the use of fee structures where part of the third party consultant's fee is
dependent upon financial close of the project;
(g)
was, at all material times, one of the Sponsors; and
(h)
at all material times conducted itself as, and held itself out to be, an originator,
instigator and sponsor of the NSBT Project;
ABN AIVIRO:
(a)

shares, registered in New South Wales on 7 January 1971, is now known as RBS
Group (Australia) Pty Ltd and is able to be sued;
(b)
is and was at all material times a corporation within the meaning of section 4 of
the TPA;
(C)
at all material times supplied goods and services in the course of trade and
commerce within the meaning of the TPA;
(d)
had prior to all material times, and by no later than 2005, 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), for or in respect of at least the
ED, the M7, the LCT, the MFM and the CCT (the Prior ABN AMR() Toll Road
Projects);
(e)
had thereby developed, and at all material times had, Toll Road Expertise;
(f)
had thereby developed, and at all material times had, Relevant Traffic
Forecasting Expertise;
(g)
(h)
instigator and sponsor of the NSBT Project.
Baulderstone:
(a)

shares, registered in New South Wales on 8 June 1983, is now known as
Baulderstone Pty limited and is able to be sued;
(b)
the TPA;
(c)
(d)
had, prior to all material times, and by no later than 2005, prepared and made
bids (either in its own right or as part of a consortium and either directly or
through special purpose vehicles), for or in respect of at least the M7, the LCT,
the MFM and the CCT (the Prior Baulderstone Toll Road Projects);
42
71.
(e)
had thereby developed, and at all material times, had, Toll Road Expertise;
(f)
had thereby also developed, and at all material times also had, Relevant Traffic
(g)
(h)
Bilfinger:
(a)

shares, registered in New South Wales on 18 March 1992, is now known as
Bilfinger Project Investments Australia Pty Limited and is able to be sued;
(b)
the TPA;
(c)
(d)
had, prior to all material times, and by no later than 2005, prepared and made
bids, (either in its own right or as part of a consortium and either directly or
through special purpose vehicles), for or in respect of at least the M7, the LCT
and the CCT (the Prior Bilfinger Toll Road Projects);
(e)
had thereby developed, and at all material times, had, Toll Road Expertise;
(f)
(g)
(h)
72.
By no later than April 2005, the Sponsors had determined that they would, or, in the
alternative, likely would, subsequently cause RCM SPVs to be registered, including to bid
for NSBT Concession and if that bid was successful, to hold the NSBT Concession and
undertake and complete the NSBT Project.
73.
Peter Jeremy Hicks (Peter Hicks):

(a)
is and was at all material times, a natural person, able to be sued in his personal
capacity;
(b)
had, at all material times, extensive experience in the development, management,

maintenance and operation of major transport and other infrastructure assets and
strong management skills;
(c)
was, between 2005 and 2006, and at all material times, a senior manager
employed by Leighton In a role designated "Executive General Manager,
investment and Facility Management" (Hicks' Leighton Employment);
(d)
had primary responsibility in 2005 and 2006, and at all material times, for
managing, for and on behalf of Leighton, all infrastructure projects in which
43
Leighton participated as an equity investor, including toll road projects (Hicks'
Leighton's Responsibilities);
(e)
was, at all material times, a director of Westlink Motorway Limited (ACN 096 512
300) (Westlink), which developed and operated the M7;
(1)
had, by no later than 2005 and prior to all material times, led, or otherwise
occupied and discharged senior management roles in respect of, at least the
Prior Leighton Toll Road Projects, with responsibilities which included
commissioning, co-ordinating and providing instructions in respect of, and input
into, or in connection with, the preparation of forecasts of future traffic and
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 (together, Toll Road Project Management Responsibilities);
Particulars
1. Schedule D.4 Commitment to Procurement Process, Response to

invitation for Expressions of Interest for NSBT Concession dated April
2005.
2. The PDS, page 55.
3. Further particulars may be supplied upon further review of discovered
and subpoenaed documents.
(9)
had, at all material times, including by reason of Hicks' Leighton Employment, his
exercise and discharge of Hicks' Leighton Responsibilities and, or in the
alternative, his exercise and discharge of Toll Road Project Management
Responsibilities in respect of Prior Leighton Toll Road Projects, extensive
knowledge and experience of, and in, bidding in competitive tenders for, and
delivering, major new toll road infrastructure projects of which the NSBT Project
was an example (Toll Road Project Delivery Expertise);
(h)
had thereby developed, and at all material times had, Toll Road Expertise;
(i)
(j)
was, at all material times, appointed by the Sponsors, and acted, as:
(1)
the head of the NSBT Project's "Project Steering Group" and, or in the
alternative, of the NSBT Project's "Steering Committee" (if and to the
extent that they were different); and
(ii)
the "RCM Project Director" and, or in the alternative, "Project Director" for
the NSBT Project (if and to the extent that they were different);
Particulars
1. Schedule D.4 Commitment to Procurement Process, Response to

invitation for Expressions of Interest for NSBT Concession dated April
2005.
44
(k)
was, at all material times until his appointment upon or shortly after their
respective registrations, an intended secondee from Leighton to, and an intended
director and the intended Chief Executive Officer of, each RCM SPV once
registered or, in the alternative, each RCM SPV once registered other than the
RCM SPV which became RCM Management;
(I)
by reason of the matters alleged in sub-paragraphs (c), (d) and (j)-(k) above, had
the authority of the Sponsors and the RCM SPVs once registered, and the
responsibility, to lead the NSBT Project and to act generally for and on behalf of
the Sponsors and those RCM SPVs once registered in connection with all
aspects of the implementation of the NSBT Project (Hicks' NSBT Project
Authority and Responsibilities);

(m)
further to sub-paragraph (I) above, Hicks' NSBT Project Authority and
Responsibilities included the authority, and responsibility, to co-ordinate,

supervise and provide instructions and other inputs, feedback and assistance to,
and to receive, approve and accept reports, advice and other work product from,
employees of the Sponsors, third party consultants and other advisers working for
the Sponsors and the RCM SPVs once registered in connection with all aspects
of the implementation of the NSBT Project, including in respect of:
(i)
traffic and revenue modelling;
(ii)
traffic model calibration;
(iii)
traffic report, bid and PDS writing;
(iv)
finance issues;
(v)
legal issues;
(vi)
capital raising and structuring;
(vii)
tax issues; and
(viii)
bid documentation.
Particulars
1.
AECOM Australia refers to and repeats the particulars to subparagraph (j) above.

(n)
further to sub-paragraphs (1) and (m) above, was personally responsible for
"Traffic and Revenue Modelling" in connection with the NSBT Project;
Particulars
1.
AECOM Australia refers to and repeats the particulars to sub-
paragraph (j) above.

45
(a)
further to sub-paragraphs (1)-(n) above, had the authority of the Sponsors and the
RCM SPVs once registered, and the responsibility, to:
(I)
co-ordinate, supervise and provide instructions and other inputs,

feedback and technical and other advice and assistance to AECOM
Australia in connection with its commission to provide AECOM Australia's
Tunnel traffic forecasts (including the Forecasts); and
(ii)
receive, approve and accept reports, advice and other work product from
AECOM Australia in relation thereto,
(Hicks' AECOM Authority and Responsibilities); and

(p)
further to sub-paragraphs (I)-(o) above, had the authority of the Sponsors and the
RCM SPVs once registered, and the responsibility, to:
(i)
co-ordinate, supervise and provide instructions and other inputs,

feedback and technical and other advice and assistance to NIEIR in
connection with its commission to provide N I EIR's Forecasts; and
(ii)
receive, approve and accept reports, advice and other work product from
NIEIR in relation thereto,
(Hicks' NIEIR Authority and Responsibilities).
74.
On or about 4 April 2005:

(a)
the Sponsors engaged AECOM Australia (then known as Maunsell Australia Pty
Ltd) to provide certain professional traffic forecasting services in connection with
the NSBT Project to the Sponsors and each RCM SPV once registered (AECOM
Australia's Commission); and
(b)
the Sponsors (both on their own behalf and on behalf of each yet to be registered
RCM SPV) and AECOM Australia, entered into a Consultancy Agreement (the
Original Consultancy Agreement).
Particulars
The Original Consultancy Agreement is in writing, dated 4 April 2005, and

was executed on or about 14 July 2005.
75.
Within, and without limiting, Hicks' NSBT Project Authority and Responsibilities, Peter
Hicks had the authority of the Sponsors, and each RCM SPV once registered, and the
responsibility, to:
(a)
co-ordinate, supervise and provide instructions and other inputs, feedback and
technical and other advice and assistance to AECOM Australia in connection with
its commission to provide traffic forecasts for the Tunnel; and
(b)
receive, approve and accept reports, advice and other work product from AECOM
Australia in relation to traffic forecasts for the Tunnel.
Particulars
1. Clause 8 of the Original Consultancy Agreement.
46

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River City Aecom Defence

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4,

Further Amended Defence r te, c . 6.

Federal Court of Australia

[Form approved 01/08/2011]

AECOM Australia admits paragraph 4 of the Amended Statement of Claim.

RiverCity Motorway Group

As to paragraph 5 of the Amended Statement of Claim, AECOM Australia:

otherwise does not know and therefore cannot admit paragraph 5.

As to paragraph 6 of the Amended Statement of Claim AECOM Australia:

otherwise does not know and therefore cannot admit paragraph 6.

AECOM Australia admits paragraph 8 of the Amended Statement of Claim.

AECOM Australia admits paragraph 9 of the Amended Statement of Claim.

AECOM Australia admits paragraph 10 of the Amended Statement of Claim.

As to paragraph 12 of the Amended Statement of Claim, AECOM Australia:

RiverCity Motorway Asset Nominee Pty Limited (Administrators

As to paragraph 13 of the Amended Statement of Claim, AECOM Australia:

Product Disclosure Statement

In relation to paragraph 14 of the Amended Statement of Claim, AECOM Australia:

admits that RCM Management held AFSL No. 297867;

admits the issue of the PDS on or about 21 June 2006;

admits that RCM Management was the issuer of the PDS;

says that, in the PDS, RCM Management stated that:

it had previously appointed RCM Services to provide certain

RCM Services had agreed to prepare a product disclosure statement in

As to paragraph 15 of the Amended Statement of Claim, AECOM Australia:

As to paragraph 16 of the Amended Statement of Claim, AECOM Australia:

As to paragraph 17 of the Amended Statement of Claim, AECOM Australia:

otherwise admits paragraph 17.

As to paragraph 18 of the Amended Statement of Claim, AECOM Australia:

says the Consented Material otherwise only comprised (the Additional

the first sentence of section 7.5.2 of the PDS;

the fifth paragraph of section 10.11 of the PDS;

the sixth paragraph of section 10.12 of the PDS; and

the definition of "Traffic Expert" in section 11 of the PDS; and

Alleged issue of RCM Stapled Units to Applicants

As to paragraph 21 of the Amended Statement of Claim, AECOM Australia:

otherwise admits paragraph 21.

As to paragraph 22 of the Amended Statement of Claim, AECOM Australia:

refers to and repeats its response at paragraph 21 herein;

admits sub-paragraphs (a) and (b);

denies sub-paragraph (d); and

further says that references by AECOM Australia in earlier forecasts to a notional

As to paragraph 23 of the Amended Statement of Claim, AECOM Australia:

other forecasts, using different and additional conservative assumptions

RCM Management considered the Base/Equity Scenario traffic forecast to

traffic modelling and forecasting:

necessarily relies upon a complex set of data inputs and

is otherwise complex; and

is not a precise science;

traffic forecasting and traffic forecasts are subject to obvious risks,

future population and employment demographics; and

traffic and congestion levels on the road network, taking account

estimates of road trips taken during the average weekday two

assumptions as to trip purposes;

estimates and forecasts of trip origins and trip destinations and

assumptions as to the perceived benefits and drawbacks of

base and future year estimates of traffic and travel time;

assumed expansion and annualisation factors;

ramp up assumptions and estimates;

assumptions in relation to government and council plans for

an assumption that the ultimate design of the Tunnel would deliver

examples of factors which would affect actual future Tunnel traffic

the capacity of the Tunnel and its feeder roads;

additional andtor unexpected roadway alternatives;

the pace, nature and locations of population, employment or

the quality and proximity of alternative roads and other transport

toll rates; and