Tunnelling on the toll road was due to start about nine months ago but has not begun due to a dispute over how to process and dispose of soil contaminated with PFAS.
The builders have claimed the soil issue is a force majeure event – an unforeseeable circumstance that makes it impossible to fulfil the terms of a contract.
In a major development, court documents reveal that Transurban wrote to the state government in March, stating if the builders’ force majeure claim was deemed valid and the contract could be terminated, then this would surely extend to Transurban’s deal with the government.
“Project Co [Transurban] also requested that the state advise whether it considers that Project Co is entitled to terminate the project agreement,” Major Projects Victoria’s program director David Clements stated in an affidavit.
The State Government, on April 17, flatly rejected this request: “The state’s position is that no force majeure event has occurred,” the affidavit stated, quoting the government’s letter of response to Transurban.
“It remains the state’s position that Project Co [Transurban] is not entitled to terminate the project agreement.”
It has also been alleged that Transurban came to the state government on several occasions with fresh claims that had been originally put to the company by the builders.
But the state has consistently knocked these claims back, having “subsequently failed, refused and/or determined not to accept Project Co’s [Transurban’s] claims,” an originating motion states.
The project’s builders have accused Transurban of being dishonest about the extent of PFAS contamination as part of a suite of claims they are making against the company, according to the documents.
“Project Co [Transurban] has allegedly engaged in misleading or deceptive conduct in respect of representations made … in relation to the extent of PFAS affected spoil likely to be encountered at the site,” Mr Clements’ affidavit states.
A spokeswoman for the West Gate Tunnel Project, the government agency that’s managing the works, said the state government was told late on Friday afternoon that Transurban was taking action and is not currently involved in the proceedings.
The government expects works to continue while the lawsuit is under way.
“This is a matter between Transurban and their builder and we hope they can come to a speedy resolution,” the spokeswoman said. “We expect construction will continue while the matter is heard.”
A Transurban spokeswoman said the company was “taking action to ensure CPB John Holland Joint Venture comply with the contract they signed up to.”
“We are doing everything possible to work through the challenges and we remain committed to delivering the community its much-needed alternative to the West Gate Bridge.”
The project’s builders CPB Contractors and John Holland have axed about 450 jobs in the lead-up to the legal challenge, with more than 300 still likely to be shed, according to threats made by the builders.
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Timna Jacks is Transport Reporter at The Age
Clay Lucas is a senior reporter for The Age. Clay has worked at The Age since 2005, covering urban affairs, transport, state politics, local government and workplace relations for The Age and Sunday Age.