98 Kevin Hadingham is employed by VicRoads as Manager Road System Strategies. He is responsible for monitoring the state of the Victorian road network and identifying ways in which it may need to be changed in order to respond to traffic demand. He swore an affidavit in which he confirmed a number of statements in Mr Mottram's affidavit. In particular, Mr Hadingham confirmed that VicRoads is not presently considering the construction of a larger project called the Eastern Ring Road, that currently no funds have been allocated for either project development or construction of a link between the Western Ring Road and the Scoresby Freeway, that VicRoads is not doing any work in relation to the road the applicant alleges, either at the strategic or project planning levels, and that there is no plan presently being developed by VicRoads for the construction of the road described as the remainder of the Eastern Ring Road. Mr Hadingham was not cross-examined.
99 Rudy Kohut holds the position of Senior Project Manager in the Strategic Planning Division of the Department of Infrastructure. He affirmed two affidavits, dealing with the process whereby the Metropolitan Strategy, published on 8 or 9 October 2002, was produced. This was the document a draft of which is relied on by the applicant as evidence of the existence of a secret plan or intention to build a freeway link through Bulleen. In neither of his affidavits did Mr Kohut refer to the question whether there existed any plan or intention to construct that link. He was cross-examined, but the applicant did not ask him any questions on this issue.
100 In his submissions, the applicant drew attention to the fact that a number of people who might have been in a position to know whether a secret plan or intention existed did not make affidavits and were not called to give evidence. As well as Mr McDonald, to whom I have referred in [59], the applicant referred to the principal authors of the draft Metropolitan Strategy, John Collins and Geoff Anson, as well as Eric Keys, who drafted the part of the Metropolitan Strategy that referred to the need to complete the Metropolitan Ring Road, which was deleted before the final document was published. Failure to call a witness who might be able to give relevant evidence can be a ground for drawing an inference otherwise
available from evidence before a court. It cannot be a substitute for the lack of such evidence.
101 On the evidence before me, the applicant has failed to establish that there is a secret plan or intention on the part of the respondents to build a freeway link between the Eastern Freeway and its interchange with Bulleen Road and the Metropolitan Ring Road at Greensborough. I cannot be satisfied on the balance of probabilities that such a secret plan existed at the time of the referral. If I were to find that there was such a plan, it would be necessary to find that Mr Mottram was giving evidence that was deliberately false, and to find so on the basis of evidence that, apart from the conversation between Mr McDonald and Dr Morton, was entirely circumstantial and consistent with other explanations. Even if, at the time when Mr McDonald spoke to Dr Morton, it was the intention of the second respondent that a freeway link should be constructed, it does not follow that he remained of that view at the time of the referral. If there had been a secret plan, Mr Mottram would be expected to know of it. I am not prepared to draw an inference that such a plan existed in the face of his evidence to the contrary. It is therefore necessary to turn to the question whether the construction of the Scoresby Freeway, joining the Eastern Freeway near Ringwood, makes the construction of such a link inevitable.
102 The applicant conceded that the statement in the referral of the northern section of the Scoresby Freeway to the Environment Minister, to the effect that the independent panel investigating the Scoresby Corridor was advised that there would be very little traffic impact from the Scoresby Freeway on routes crossing the Yarra River, was literally true. The independent panel had been so advised, at least in relation to motor car traffic, apparently on the basis that most journeys using a ring road involve the use of small sections of such a road. Most people will take a direct route, rather than using the ring road to reach a destination on the opposite side of the city that the ring road circumscribes. The applicant did suggest that the independent panel had been misled by such advice, but that is not a question falling within the issues that the Court must determine in this case. It may be accepted that those who use a freeway network from starting points nearer to the centre of the city concerned will often use a radial freeway, and then a small section of a ring road to transfer to another route away from the city. Ready examples are provided at present by those who use the Western Freeway and then the Western Ring Road to transfer to the freeway leading to Ballarat, or those who use the Tullamarine Freeway and then the Western Ring Road to transfer to the Hume Highway.
103 In [28], I have referred to Linking Melbourne. That document identified as a purpose of joining the Western Ring Road and the Eastern Ring Road the improvement of access between the eastern and south-eastern suburbs and the northern suburbs, Hume Highway and Melbourne Airport. In other words, that document specifically contemplated that an Eastern Ring Road link would be used by significant numbers of people over long distances for those purposes. Similarly, the 1995 forward strategy document, to which I have referred in [31] - [35], identified linking manufacturing areas in the eastern and south-eastern suburbs of Melbourne to, among other things, air terminals and the national highway network as an objective. In other words, it recognised that there would be a desire to move significant numbers of commercial vehicles over long sections of a ring road, to provide access to Melbourne Airport and the Hume Highway, among other destinations.
104 These documents were written prior to the construction of the City Link system. It is possible now for traffic from the south-eastern suburbs of Melbourne to use the Monash Freeway, City Link and the Tullamarine Freeway to reach the airport and, by travelling east along the Western Ring Road, to transfer from the Tullamarine Freeway to the Hume Highway. A journey using City Link involves the payment of tolls for various sections of the roads part of that system.
105 A question therefore arises whether the construction of the northern section of the Scoresby Freeway is likely to result in the diversion of significant amounts of traffic that would otherwise have used the Monash Freeway, City Link and the Tullamarine Freeway onto the Eastern Freeway and thence north to Greensborough. The answer to such a question would depend upon how particular drivers or operators, particularly of commercial vehicles, viewed the trade-off between the payment of tolls on City Link and, in some cases, the travelling of additional kilometres on the existing system, against the need to spend some time on ordinary roads to get from the Eastern Freeway to Greensborough. The applicant stated that the advice given to the independent panel was in terms of car journeys, not of truck journeys. The subject of commercial traffic was dealt with briefly by the National Institute of Economic and Industry Research ("the NIEIR") in a report dated May 1996, which became part of the documents making up the environmental effects statement. That report contained the following passage:
"5.4 Traffic related matters
Moving to more specific transport matters, with the survey of Corridor firms identifying freight improvements to the South East Arterial as the major strategic road priority for the Corridor, followed by upgrading of access to/from the north of Melbourne, the scale of possible road upgrading in the corridor to the north and the selection of the most appropriate southern commencement point for such upgrading become important economic efficiency issues for the study. Whether upgrading of existing Corridor and nearby north-south arterials, to deal with peak congestion concerns, supported by improvements to the north-east to complete access to/from the north, can meet medium to longer term needs must be investigated, compared to higher standard solutions. Any such package of arterial upgrading (e.g. duplication) needs to encompass consideration of construction of some new routes, such as a Dandenong Bypass.
The analysis of freight movement patterns in Section 4 has raised the issue of prospective freight diversion away from the inner Melbourne area if a major new eastern ring route is built. While the estimates of potential diversion tonnages presented in that section can be taken as no more than first guesstimates, they do suggest that this issue is one of importance for the study, in both traffic/economic terms and in terms of environmental and social impacts. By way of example, if 9 million tonnes of freight traffic was contestable between the central route to/from the north and an eastern route and if all this traffic diverted to an eastern route, this would represent a significant level of traffic diversion. If one assumes (say) 18 tonnes per truck and 250 work days per year, some 2,000 trucks per day would be involved (more if average loadings were less), which would represent a significant proportion of truck traffic on City Link (if that was the central route to be used). This estimate of potentially divertable traffic seems high at first glance but it indicates the need for much more careful analysis of this issue in the context of the Corridor study."
106 The figure of nine million tonnes of freight traffic, used as the basis for the calculation in this passage, is a "very cautious estimate" reached in the section of the NIEIR report numbered 4.1 as freight that might potentially switch from a central corridor to an eastern ring corridor to or from Melbourne's north, if such a route were available. The calculation in the passage I have quoted is based on the assumption of 100 per cent diversion from a central route to an eastern route. Even if the assumption were made of only 50 per cent diversion, on the figures given by the NIEIR, this would result in 1,000 trucks per day using the eastern route. If, instead of the eastern route being a complete freeway ring road, it was one that involved using ordinary roads, with traffic lights and bottlenecks at river crossings, a lower diversion rate could be expected. It is impossible for me to calculate what such a rate might be, as it would be dependent on the sort of trade-off to which I have referred. The longer the delays in crossing the river, waiting at traffic lights and mingling with other traffic, the more drivers and operators are likely to prefer to pay the tolls and take the long way round on City Link, assuming that there will not be significant delays on that system. The time of day of a journey, and the consequent state of other traffic, would also be a factor.
107 The arguments in favour of the completion of a ring road spoke of substantial economic benefits that would be expected to flow from linking the outer south-eastern suburbs of Melbourne with the Hume Highway and the Melbourne Airport. It is impossible to accept that such economic benefits would flow if there were a complete ring road but that there would be no economic benefits from a partial ring road involving a link using existing roads. It is therefore impossible to accept that all commercial traffic will continue to use the Monash Freeway, City Link and the Tullamarine Freeway once the Frankston Freeway and the Monash Freeway are linked to the Eastern Freeway by the Scoresby Freeway. It must therefore be the case that there would be some increase in commercial traffic using a link involving existing roads, up to the point at which the congestion on those roads became severe enough to lead operators and drivers to take the view that their costs were increased by using that route, as against the payment of tolls and taking the long way round, using City Link. What might be an acceptable level of congestion cannot be predicted accurately on the evidence before me. It is a safe assumption, however, that some commercial transport operators, faced with the choice, will at least try out the route using the northern section of the Scoresby Freeway, the Eastern Freeway and the Western Ring Road from Greensborough, using a link involving existing roads. Of those who experiment, some will be turned away by the experience but it is likely that others will persist and that experimentation will continue.
108 In my view, it is probable that there will be an increase in traffic levels, particularly commercial traffic levels, on the existing roads which, for the foreseeable future, are intended to constitute the link between the Eastern Freeway and Greensborough. As crossing points over the Yarra River are limited in number, the choice of routes is not great. Some traffic might use the Fitzsimmons Lane Bridge, but the greatest pressure is likely to be on the Banksia Street crossing. The shortest distance for a link will involve leaving the Eastern Freeway at its interchange with Bulleen Road and Thompsons Road, proceeding north along Bulleen Road to its intersection with Manningham Road, turning west to cross the river by the Banksia Street Bridge and then north again along Rosanna Road, to link with Lower Plenty Road and the Greensborough Highway. As I have said, the numbers of vehicles using this route will depend upon the level of congestion on those roads that is acceptable to persons faced with the choice, in the light of the other option to use City Link. In my view, it is probable that such a level of congestion will be significantly higher than the level presently caused by traffic using those existing roads. Indeed, it would hardly be surprising if, having designated those existing roads to be the link between freeways for the foreseeable future, the respondents were to find that people used those roads as such a link. In a sense, it is the very thing intended. Although it might have been literally true that the independent panel was advised that there would be very little traffic impact from a Scoresby Freeway on routes crossing the Yarra River, it is probable that a significant number of vehicles, including commercial vehicles, will use the "link" provided by "existing roads".
109 If such a development should occur, it will have a significant effect on the process of determining whether a freeway link is to be built in the future. Existing users of the roads that will become the link, as well as those who live and work on and near those roads, will be affected adversely by any significant increase in traffic volumes on them. Even if modifications are to be made to those roads to facilitate the flow of traffic from one freeway to the other, such modifications will only be a factor in determining how much traffic will be on the roads until its volume reaches the level of congestion that is found to be unacceptable. Disaffection with traffic volumes on existing roads will lead to an increase in support for the construction of a freeway link, as a means of alleviating the situation for those who need to use the existing roads. In this way, there is the prospect that there will come to be a division of opinion in the community between those who might be adversely affected by a freeway
link and those who are adversely affected by the absence of one. Such a division increases the likelihood that a government in the future will decide that a link can, and should, be built.
110 In my view, such a course of events is far from fanciful. In his evidence, Mr Mottram referred to the advice provided to the independent panel, which suggested the likelihood of a two and a half per cent maximum increase in traffic at several locations crossing the Yarra River as a consequence of the construction of the Scoresby Freeway. He referred to the fact that people wishing to travel from the outer-eastern suburbs of Melbourne to the north do not have a lot of choices now and suggested it was not surprising that transport modelling done by expert consultants found that there would not be much impact. He also referred to a study for a possible future connection between the Eastern Freeway and the Tullamarine Freeway. When I pressed him for his view, he said that, as a resident of the East Ivanhoe area, travelling from time to time along the Eastern Freeway and leaving it at Bulleen Road, he did not detect enormous amounts of traffic leaving the Eastern Freeway at Bulleen Road at present. He found it hard to see enormous change in that. He failed to grapple with the proposition that the high level of industrial activity in the south-east of the metropolitan area, and the desire of people engaged in that activity to send and receive goods by road, would have a significant impact. In my view, in this respect, Mr Mottram was simply unwilling to admit the obvious - that a Scoresby Freeway linked with the Eastern Freeway near Ringwood will attract significant traffic, including commercial traffic, proceeding from the outer south-eastern metropolitan area towards the Hume Highway and Melbourne Airport, at least up to whatever level of congestion is regarded as making the use of City Link a preferable alternative. In my view, there is a probability that a significant increase in traffic using the Banksia Street Bridge route that I have described will occur, with the consequent boost to the impetus for a freeway link in the way I have described.
111 There can be little doubt that there is a body of opinion in favour of a freeway link between the Eastern Freeway at its Bulleen Road interchange and Greensborough within VicRoads and the Department of Infrastructure. Mr Mottram's evidence was that he has discussed the matter with a number of officers of VicRoads and there are some who support the link, as well as some who are against it. Mr Mottram's own view was that, if such a link were to be built, a Bulleen route would be a more likely place than a route through Warrandyte. Clearly, there is opinion within the Department of Infrastructure that a link is necessary. This view was expressed by the authors of the draft Metropolitan Strategy, who are senior officers of that department.
112 In addition, Terry Laidler, a member of the Roads Corporation Board, has that view. The Roads Corporation Board is appointed by the Minister for Transport, pursuant to s 30 of the Transport Act 1983 (Vic). Its function is to advise the Chief Executive of VicRoads. Mr Laidler swore an affidavit, filed in this proceeding, in which he stated that his personal opinion is that the construction of a ring freeway would be beneficial for Melbourne, that the obvious way to complete such a ring freeway would be to construct the Scoresby section first and then construct the balance. Mr Laidler deposed to a discussion with the applicant, in which he discussed how the Scoresby Freeway could be connected to the ring road and canvassed possible routes and methods, including tunnels, by which this could be achieved. He conceded that there are environmental constraints that would affect any route through Bulleen and Heidelberg and that these would need to be responded to appropriately.
113 It is not surprising that there would be persons within the Department of Infrastructure and VicRoads who hold personal opinions in favour of the construction of a freeway link and that at least some of them would take the view that a link from the Eastern Freeway at Bulleen to Greensborough would be an appropriate route for such a link. There is no evidence of the numbers of such persons. Irrespective of the size of such a body of opinion, however, its presence is a factor strengthening the likelihood that a freeway link will be built.
114 For all of these reasons, I am of the view that the construction of the Scoresby Freeway, linked to the Eastern Freeway, with a link between the Eastern Freeway and the Western Ring Road at Greensborough being left to existing roads, creates a strong chance that a freeway link will be built in the future. Whether such a strong chance can be described as an inevitability may involve an argument of semantics. I prefer to describe it as a strong chance, because it cannot be said that it is a certainty. In my view, however, the construction of such a freeway link is highly likely. If it is constructed, a route using the current alignment of Bulleen Road north of the Eastern Freeway, passing close to the Bolin Bolin Billabong, crossing the Yarra near the Banyule Flats and perhaps using a tunnel instead of the former F18 freeway reservation, to link with the Greensborough Highway, is the most likely route. It is therefore necessary to determine whether the existence of this strong chance made what was said in the referral to the Environment Minister in relation to the northern section of the Scoresby Freeway misleading.
115 This question can be characterised as whether a failure to refer to the strong chance of a future freeway link through Bulleen, in the context of what was said about the relationship of the proposal for the northern section of the Scoresby Freeway to other actions or proposals in the region, amounts to misleading. The question whether silence about a particular matter can amount to misleading conduct has been the subject of examination in the context of s 52 of the Trade Practices Act 1974 (Cth). In Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) (1988) 39 FCR 546 a Full Court took the view that the question whether silence about a matter could amount to misleading conduct depended upon whether the particular facts gave rise to a duty to disclose. See the judgment of Lockhart J at 557. A subsequent Full Court took a different view in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31. At 32, Black CJ said:
"Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of 'mere silence' or of a duty of disclosure can divert attention from that primary question. Although 'mere silence' is a convenient way of describing some fact situations, there is in truth no such thing as 'mere silence' because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed."
Gummow J, with whose reasons for judgment Black CJ and Cooper J expressed agreement, referred to numerous authorities at 38 - 41. At 41, his Honour said: