Brisbane Airport Corporation Pty Ltd v Airservices Australia & Anor [No 3] [2025] QSC 234

• [1] Before the court are a collection of interlocutory disputes in this commercial list proceeding involving applications by both the plaintiff, Brisbane Airport Corporation ('BAC'), and the first defendant, Airservices Australia ('ASA'). The second defendant took no active part in these disputes.
• [2] Some urgency is required for these reasons because of some timetabling issues and fast approaching deadlines. For that reason, these reasons are necessarily abbreviated.
• [3] The background to the dispute and the overall issues are described in previous decisions.[1] A 12-week trial has been set down to commence in August 2026. The parties are working towards that trial pursuant to some case management directions made in May 2025.

• [4] The first issue concerns disclosure of documents relating to a water treatment plant at the Brisbane Airport. Some documents in that category have already been disclosed. That is because the parties have been operating on the basis of a document management plan that was ordered by Applegarth J on 13 February 2020. That order was made by consent and specified, in a comprehensive way, how the parties were to carry out disclosure.
• [5] The parties' disclosure obligations included an obligation to carry out certain searches and to exchange lists of documents in relation to a number of key issues, namely:

(a) Acquisition, storage, use (including transition and cessation of use) or emission (including spills) of AFFF containing PFAS by any person (including the defendant) at Brisbane Airport.

(b) Composition of such AFFF.

(c) Properties, including the potential environmental or human health effects of PFAS, and in particular, PFOS and PFOA.

(d) Any government or industry standards of thresholds relating to the levels of remediation of PFAS.

(e) The use of ASA Sites since 1988 in connection with the use of AFFF.

(f) The results of any investigations or testing and any reports produced regarding AFFF or PFAS at Brisbane Airport (including the ASA Sites).

(g) Preparation, implementation, monitoring and review of the defendant's Environmental Management Plans in relation to PFAS.

(h) Costs, loss and damage claimed by the plaintiff in the proceedings, including any consideration of, or response to, those costs, loss and damage by the defendant.

(i) Consideration and the carrying out of any steps to manage, contain, remove, remediate, deal with or reduce the quantity of PFAS present at any of the ASA Sites or emanating from any of the ASA Sites.

(j) The transfer of assets and liability of CAA to the Defendant.

• [6] ASA submits that those documents sought by BAC that are directly relevant are comprehended by the existing document plan. Nevertheless, ASA is prepared to agree to specifically disclose documents falling into the following five categories:

(a) documents recording the purpose, intended and actual operation of the Water Treatment Plant commissioned by ASA proximal to the Main Fire Station (WTP) and its location;

(b) documents recording the as-installed design and operation of the WTP;

(c) documents recording concentration of PFAS in surface water treated at the WTP;

(d) documents recording the remedial criteria selected, and the reasons for the remedial criteria selected for the treatment of surface water at the WTP; and

(e) documents recording the incurred costs of installing, maintaining and operating the WTP.

• [7] BAC contends for a wider scope of documents to be further disclosed, namely:

"(a) In respect of the water treatment plant commissioned by ASA proximal to the Main Fire Station (water treatment plant):

(i) documents recording or referring to ASA's decision to install a water treatment plant, including documents recording or referring to ASA's internal approval(s) to install the water treatment plant and the reason(s) for the location of the water treatment plant;

(ii) documents recording or referring to the design, construction and operation of the water treatment plant;

(iii) documents recording concentrations of PFAS in surface water treated at the water treatment plant;

(iv) correspondence exchanged with the Airport Environment Officer or Airport Building Controller in relation to the installation of the water treatment plant;

(v) documents and correspondence recording or referring to the selection of remedial criteria for the treatment of surface water at the water treatment plant; and

(vi) documents recording the costs of installing, maintaining and operating the water treatment plant."

• [8] The categories sought by BAC are too broad. Category a(ii), for example, requires production of all documents recording or referring to the design, construction and operation of the water treatment plant. The assumption seems to be that all such documents would be directly relevant to the issues in this case. I do not accept that.
• [9] In my view the agreed document plan is a sound basis for disclosure, and continuing disclosure, because it identifies the key issues and, in that way, the directly relevant documents. Without good reason, I am reluctant to depart from the agreed document plan, which has governed the parties' disclosure for a number of years. I do not accept that there is a good reason for departing from the document plan, especially in the circumstances where BAC's proposed extension is too wide.
• [10] BAC relies on the fact that its expert, Mr Goulding says that the documents would be "material". I do not think that what Mr Goulding regards as material is decisive as to what the court should require to be disclosed as 'directly relevant'.
• [11] I will make an order in terms of the five categories of disclosure proposed by ASA.

• [12] The second dispute also concerns disclosure. This dispute has its origins in a submission that ASA made to the Senate Select Committee on PFAS (per and polyfluoroalkyl substances). That submission said this:

"Airservices has finalised Remediation Action Plans (RAP) for the former fire training ground at Launceston Airport; the fire training ground at Canberra; and the main fire station at Canberra. The works for Launceston received approval through the Public Works Committee in early 2024 with a cost estimate for remediation of this one site exceeding $20m. Remediation works commenced in October 2024 and are expected to conclude within six months. Approvals to undertake the remediation work at Canberra are in progress. There are an additional six RAPs under development across Mackay, Rockhampton, Brisbane, Avalon, Karratha, and Melbourne airports. These RAPs will be progressively finalised by mid 2025. In addition to the remedial works, we have taken a number of actions to manage PFAS impacts. For example, improvement works to stormwater infrastructure to reduce PFAS migration from our lease sites have been completed at Canberra, Melbourne, Hobart, Launceston, and Sydney. We have also removed and disposed of PFAS-impacted material (soils and stockpiled spoil from other works) from airports at Hobart, Launceston, Perth, Alice Springs, Yulara, Avalon and Sydney." [BAC's emphasis]

• [13] Further, in its submission to the Senate Committee, the ASA stated that it:

(a) "advocates for a nationally consistent, cross-sectoral strategy to address PFAS" and PFAS management needs to be nationally enforced and consistently applied for efforts to be effective";

(b) "has collaborated with leading industry and research institutions to better understand PFAS and to support the development of solutions and technologies to manages PFAS";

(c) "has made significant investment in research and development activities to better understand PFAS related issues. [ASA] has engaged health and environmental experts to provide advice and developed guidance material to assist [ASA] and its stakeholders managed PFAS at airports".

• [14] BAC contends that these statements mean that ASA should disclose documents relating to the treatment of PFAS in airports other than Brisbane Airport. In its proposed orders BAC seeks documents:

(a) relating to the finalised remediation plans for Launceston and Canberra airports;

(b) relating to draft and final remediation plans for Mackay, Rockhampton, Avalon, Karratha and Melbourne airports;

(c) relating to the stormwater infrastructure at Canberra, Melbourne, Hobart, Launceston and Sydney airports;

(d) recording or referring to the works for the removal and disposal of PFAS-impacted material at Hobart, Launceston, Perth, Alice Springs, Yulara, Avalon and Sydney airports.

• [15] I decline to make such an order. These documents are not shown to be directly relevant. The remediation at each airport is site-specific.
• [16] Mr Kelly KC for BAC argued that the techniques used on the Brisbane Airport site made the material from other airports relevant:

"The other thing we're told is, 'Well, there's different geological conditions at the other airport sites, there's different topographies, there's different situations.' Of course, that's correct, but Mr Goulding isn't a - he's not a groundwater modeller. He's not a hydrologist. He's someone who costs remediation, and goes around the world looking for the most effective and most efficient remediation technique. So it's quite - you could see how it would be quite relevant for him to know how someone remediated Launceston Airport and what they were doing.

And it's no different, in theory, from a valuer valuing a house who's looking at comparable sales and has to make some adjustments for what the situation is on the ground, but Mr Goulding isn't an environmental chemist. He's not a groundwater modeller. He's someone who will give expert evidence about the kinds of remediation techniques that can be used and what their cost is. And that ought, with respect, we submit, be kept firmly in mind."[2]

• [17] And then Mr Kelly responds to the point made against him:

"So when it's said to you, 'Oh, look, this is all hopelessly broad and everything's different, all these sites are different and can't be compared with each other,' that's not what ASA said to the Senate Committee on this issue. If you look at 111, it says - this is December - very recently, December 2024 - 'Airservices has finalised remediation action plans for the former fire and training ground at Launceston Airport, the fire training ground at Canberra, and the main fire station at Canberra. The works for Launceston received approval through the Public Works Committee in early 2024 with a cost estimation for remediation for this one site exceeding 20 million. Remediation works commenced in October 2024 and are expected to conclude within six months.' It goes on and talks about approvals.

Then it says, 'There are an additional six remediation action plans under development across Mackay, Rockhampton, Brisbane, Avalon, Karratha and Melbourne Airports. These remediation action plans will be progressively finalised by mid-2025. In addition to the remedial works, we've taken a number of actions to manage PFAS impacts, for example improvement works to stormwater infrastructure'. Now, there's no suggestion there to the Senate that stormwater infrastructure varies dramatically from one airport to the next.

Then it says, 'To reduce PFAS migration from our lease sites,' and they've been completed and it gives out - refers to five airports. 'We have removed and disposed of PFAS-impacted materials' - again, that's something Mr Goulding squarely deals with, is the removal of soils - 'and stockpiled spoil from other works.' One would wonder why there is such a significant difference between the airports involved that you can't compare the costs involved of having contractors do that work.

If you look at paragraph 112, 'ASA went on to submit to the Senate that it advocates for a nationally consistent, cross-sectorial strategy to address PFAS, and PFAS management needs to be nationally enforced and consistently applied for efforts to be effective'. So when you hear from Mr O'Donnell, my learned friend Mr O'Donnell KC, that you can't compare these airports, that is not what ASA is saying to the Senate. The ASA is saying, 'We want something nationally consistent that works across the country.'"[3]

• [18] Mr Kelly points out that in a 2022 report BAC's expert, Mr Goulding refers to different remediation technologies applied at different airports around Australia.[4] Mr Kelly submits that the point is that the documents from the other airports are clearly relevant in the sense that we have an expert who is dealing with techniques around Australia.[5]
• [19] There are a few interrelated problems with that argument. One is that, as Mr O'Donnell KC for ASA observed, the submission to the Senate makes clear that actual physical remediation work has only taken place at Launceston airport. The technique employed there appears to be earthworks to remove the contaminated soil. For the other airports there are plans to remediate. The second problem is that ASA's advocacy to the Senate for "a nationally consistent, cross-sectorial strategy to address PFAS, and PFAS management", and the need for that strategy to be nationally enforced and consistently applied for efforts to be effective, is just that - an advocated position that there should be a nationally consistent strategy. The third problem is that the advocated strategy is not shown to have anything to do with remediation techniques applied at different airports around Australia. The advocacy for a "nationally consistent, cross-sectorial strategy" could really mean anything. The fourth problem is the lack of evidence that there is anything of direct relevance at the other airports. Mr O'Donnell made this submission:

"My learned friend took your Honour to a passage about a "nationally consistent cross-sectorial strategy to address PFAS," but that doesn't tell you whether the contamination at all these different airports are the same. It doesn't tell you if the contaminants are different from airport to airport, the degree of concentration of the PFAS, or the type of PFAS is different from airport to airport, or whether the site conditions under which contamination has to be - sorry, remediation is to be undertaken or is proposed to be undertaken in a plan is different from airport to airport, and we say that's the key consideration."[6]

• [20] The fifth problem is that the evidence is that the remediation action plans for each airport are site-specific. As Mr O'Donnell colourfully put it:

"No-one says, for example, that some remediation technique that's being applied in the Launceston Airport or that's proposed at the Canberra Airport, which is previously unknown and is some novel, brilliant scheme that could be applied at the Brisbane Airport, if only they knew about it."[7]

• [21] In fact, there are only a limited number of remediation techniques.[8] As Mr Kelly conceded: "Mr Goulding recognises there are only very limited ways to remediate and one of them is digging up soil".[9] That rather illustrates that the focus on the remediation techniques does not demonstrate direct relevance.

• [22] Both parties sought to be relieved of their implied disclosure obligations. I have already dealt with that issue in the course of argument by indicating that:

(a) both parties should be relieved of those obligations;

(b) the mechanism for dealing with the documents yet to be processed should be staged so that 114 priority documents are dealt with quickly and the balance by 2 October 2025.

• [24] ASA's expert reports of Dr Benotti and Dr Petrozzi were delivered late. Orders will be made extending the time.

• [25] One of the reasons why the reports of Dr Benotti and Dr Petrozzi were delayed is that there were errors in the master database that they relied on. This issue was considered in a previous hearing. In the end, the reports of Dr Benotti and Dr Petrozzi were delivered despite the errors. That leaves open the possibility that they may need to amend their reports. BAC is concerned about that prospect.
• [26] It is conceivable that Dr Benotti and Dr Petrozzi may not need to change their reports in any substantive way. In other words, the errors in the master database may make no real difference to their conclusions. On the other hand, it is also conceivable that the errors will make a significant difference to their opinions.
• [27] The context is that BAC's expert, Mr Lane, wishes to retire and the delays have postponed his retirement plans and have had the consequence that he has missed some private commitments.
• [28] For those reasons BAC seeks orders that timetable the delivery of any supplementary reports of Dr Benotti and Dr Petrozzi, or others, that incorporate or reflect errors in the master database.[10]
• [29] I do not propose to make those orders. They are premature. It is not clear if there is a real problem and, if there is, the extent of that problem. If the opinions of Dr Benotti and Dr Petrozzi change, then ASA will need to seek an adjustment to the timetable. As Mr O'Donnell explained:

"ASA is acutely aware that it is in our best interests to obtain further reports from Mr Petrozzi and Dr Benotti, as to whether any of their opinions change consequent upon the correction of the errors, as soon as possible. The sooner we get further reports, the sooner we apply for leave, the better our prospects of getting leave. We're acutely aware of that, and we will apply as soon as we can."[11]

• [30] The parties are at loggerheads over timetabling. For BAC, Mr Psaltis explained that if ASA were to secure the extensions it sought in paragraphs 17A, 17B and 17C of ASA's proposed draft orders, then the time for Mr Goulding's responsive expert report (in paragraph 25 of the draft orders) would also need to be extended.
• [31] Mr Goulding, it is said, needs six months to respond to the reports of Mr Stuckey, Dr Abrams and Mr Hardiman.[12] ASA's proposal is to adjust the May timetable so that there is a further two weeks for Mr Stuckey's report (now proposed for 3 October 2025), a further three weeks for Dr Abrams (now proposed for 17 October 2025) and a further four weeks for Mr Hardiman (now proposed for 24 October 2025). Oddly, those proposed extensions are said to lead to a need for a four-week delay to Mr Goulding's proposed response. Mr Psaltis described the effect of those two-, three- and four-week extensions as having a "cumulative" effect with the result that Mr Goulding needs a further four weeks to respond. I am not sure of the logic of that. It seems to involve simply taking the latest date. In other words, there is some caution built in to the date for the proposed response.
• [32] It is important to bear in mind that Mr Goulding has not yet received the three reports of Mr Stuckey, Dr Abrams and Mr Hardiman. Thus, presumably Mr Goulding has a slightly pessimistic or cautious approach to his estimate. He anticipates the expert reports developed by ASA will be "voluminous and complex" and will take significant time to assess, and then he will need to consider what reply evidence needs to be developed.[13] It is certainly true that there are some interdependencies in the expert evidence.[14] That is one of the reasons why there have been delays and why there is some complexity to the timetabling.
• [33] There is certainly an oddity to ASA's request for extensions for the reports of Mr Stuckey, Dr Abrams and Mr Hardiman. The experts themselves do not say they require these extensions. Instead, Ms Byrne, ASA's solicitor says that:

"Based on my experience as a solicitor, and the intensive work that is required form [sic] the experts to prepare expert reports for the Court, two weeks from receipt of Dr Goodrum's expert report is sought by ASA for the filing and service of Mr Stuckey's expert report. That date being, 3 October 2025."[15]

• [34] It is surprising that a solicitor is estimating the time required by experts rather than communicating what the experts say is the time that expert needs, and why.
• [35] However, as I have explained, the trial is to commence in August 2026. The effect of not granting the extensions requested by ASA may be that ASA will not be able to put on the evidence it wishes to rely on. That is a relatively drastic consequence as compared with the relatively short extensions requested. I will make orders in terms of paragraphs 17A, 17B and 17C of ASA's draft order. I will also extend the date for Mr Goulding's responsive report to 30 April 2026.

• [36] The next dispute involves the somewhat unorthodox timetabling orders in this case. For reasons of expediency or efficiency the parties have agreed to timetable this case so that expert reports are delivered and then, subsequently, the party submitting the report(s) is permitted to support that expert report with the lay evidence that is the factual foundation for the opinions expressed in the expert report.[16] For convenience I will refer to this type of evidence as 'supporting lay evidence'.
• [37] Pursuant to the orders made on 1 May 2025 ASA's supporting lay evidence was due to be delivered on 15 October 2025. ASA sought an extension to the dates for that supporting lay evidence. BAC's proposal is that that supporting lay evidence be delivered on 15 and 31 October 2025[17] - depending on the nature of that evidence.
• [38] ASA's competing draft order proposes staggered dates as follows:

"(a) the expert reports of Dr Benotti filed in this proceeding on 14 May 2024, 17 December 2024 and 3 September 2025 by 15 October 2025

(c) the expert reports of Dr Petrozzi filed in this proceeding on 7 January 2025 and 9 September 2025, Ms Wirth and Ms Anderson by 29 October 2025

(e) the expert reports of Dr Goodrum 12 November 2025

(f) sampling work undertaken at Brisbane Airport (including GHD) and ASA's 'Master Database' by 28 November 2025;

(g) the expert reports of Mr Stuckey to be filed in this proceeding pursuant to paragraph 17A of these orders, Mr Abrams to be filed in this proceeding pursuant to paragraph 17B of these orders by 12 December 2025;

(j) the expert reports of Mr Hardiman to be filed in this proceeding pursuant to paragraph 17C of these orders, Mr Williams to be filed in this proceeding pursuant to paragraph 18 of these orders and Mr Temple-Cole filed in this proceeding on 31 July 2025 by 19 December 2025." [emphasis omitted]

• [39] BAC is concerned regarding "sheer volume of material" which is to involve 36 affidavits and potentially 36 further witnesses.[18] Mr Psaltis submitted that what was being sought was a two-month extension overall.
• [40] Again, the material is yet to be sighted. It is difficult to assess whether there is going to be a real problem and the extent of it. The result is that there is some pessimism and caution, which is justified given the previous delays. One would expect that the lay supporting evidence would not ordinarily be too controversial. However, Ms Byrne describes the need for an extension for the task in this way:

"Based on my experience as a solicitor, and the intensive work that will be required in relation these lay affidavits, ASA requires until 19 December 2025 to complete and file these affidavits because:

(a) I expect that many of the affidavits will be highly technical and I do not have available, key staff members with the required experience with each of the experts and their reports, to allocate to begin conferencing with the required witnesses.

(b) many of the persons from whom these affidavits will come are presently assisting with the preparation of reports assisting their respective expert, and so the full contents of their affidavit will not be known until after completion of the expert report."[19]

• [41] No proper assessments can be made until the material is received. There is a potential for there to be a real problem or for the present problem to be boxing at shadows. It is certainly the case that the staggered approach means that ASA can progressively produce the lay supporting evidence, and that BAC can progressively consider it. On balance, the lesser of two evils is to permit the extensions but on the basis that if the volume of, or the nature of, the lay supporting evidence is such as to cause BAC prejudice or disrupt trial preparation then BAC is entitled to make an application for an appropriate case management order or even to have the evidence disallowed.
• [42] Of course, ASA will also be conscious that there may well be grave consequences if ASA misses these extended deadlines, or indeed other deadlines.
• [43] For this dispute, and the other timetabling issues considered in these reasons, it is necessary to take a global view. At present in the timetable there is something of a 'float'. The only steps likely to be required between the end of April 2026 and the start of the trial in August 2026 is expert conclaves and joint reports. BAC seems to anticipate that process will take two and a half months. Again, I think the likelihood of it taking that long is overly pessimistic. By April 2026 the experts should have each other's opinions, including opinions in reply.
• [44] It is obviously undesirable to consume part of that 'float' at this early stage. The consequence is that compliance with the timetable will be more critical. And, frequent reviews will ensure the case is proceeding with expedition.
• [45] On that basis, I will allow the staggered approach in the ASA draft orders. Under that timetable the lay supporting evidence will be substantially complete by the end of the year.[20]
• [46] That means that the date in paragraph 25 for BAC's expert reports in reply will need to be extended from 31 March 2026 to 30 April 2026.
• [47] I will not further extend the date for BAC's reply experts to mid-June 2026. Subject to further review, efforts need to be made by both sides to have the evidence completed by the end of April 2026.

• [48] ASA seeks an order that the filing and service of the report of its expert economist, Mr Williams, be scheduled for 7 November 2025. Mr Williams will be responding to the expert report of BAC's expert economist, Professor Gray. BAC is content to allow Mr Williams only until 26 September 2025. Mr Williams needs the expert report of Mr Hardiman, the quantity surveyor, before he can prepare his report. That report is due to be delivered, under the adjusted timetable, by 24 October 2025.
• [49] The prejudice that BAC points to is that again, allowing Mr Williams until 7 November 2025 will cause "flow-on" delays.
• [50] It is appropriate to allow Mr Williams until 7 November 2025. That will allow ASA to meet Professor Gray's evidence. That should allow the evidence of this discipline to be completed by the end of the year. If there are problems that arise then they can be raised when they arise.

Objections to Evidence and Opening Submissions

• [51] BAC's draft order proposes directions concerning objections to evidence and written openings. Suffice it to say that it is too early to consider those case management orders. I will not make those orders. They will be considered at later reviews.

• [52] BAC proposes what was called 'top up' evidence. This is evidence that Ms Menzies for BAC explained will be finalised in the next two weeks. This evidence will not, it is submitted broaden BAC's case but will, for example, bring its damages case up to date in the sense that some costs claimed as material costs have materialised and are now actual costs.
• [53] The breadth of that further evidence is a concern for ASA. First, ASA is concerned that BAC may have to amend its pleading in a substantive way. In any event, ASA says that BAC needs to amend its pleading. Second, ASA is concerned that the timetable or trial may be de-railed by the further evidence-in-chief. On the other hand, BAC says that it does not need to amend and that all that will need to be altered are the particulars - which largely rely on Annexure G to Mr Goulding's report.
• [54] It is necessary for ASA and the court to see this 'top up' evidence before making a decision on how that evidence impacts the pleadings, particulars and the timetable. Thus, no orders will be made on this aspect - at least at present.

• [55] For those reasons the orders will be that the parties submit a draft order to my associate that reflects those orders that are agreed and the decisions made in the course of these reasons. I will hear the parties on costs.

[1] Brisbane Airport Corporation Pty Ltd v Airservices Australia [2025] QSC 54; Brisbane Airport Corporation Pty Ltd v Airservices Australia [No 2] [2025] QSC 81.

[8] Transcript 13-39 referring to Mr Goulding's affidavit at [80(e)].

[10] These proposed orders are set out in [16] to [18] of BAC's proposed orders.

[12] Mr Goulding is primarily responsible for a responding to these three expert reports. He is also responsible, along with others, for responding to three further reports.

[14] The expert reports have been described as cascading. Mr O'Donnell explained some of the interdependence of the expert reports at Transcript 13-69 and following.

[15] Ms Byrne's 3 September 2025 affidavit. There are equivalent paragraphs for Dr Abram's report and Mr Hardiman's report.

[16] Mr Psaltis explained the unorthodox approach as being caused by the heavy load of expert evidence in this case: Transcript 13-59.

[19] Ms Byrne's 3 September 2025 affidavit at [127].

[20] The only exception is lay supporting evidence supporting the expert reports concerning BAC's further evidence-in-chief - the 'top up' evidence.