Toowoomba Regional Council v The Commonwealth of Australia [2026] QSC 11

[1] This is an interlocutory application by the defendant, the Commonwealth of Australia (the 'Commonwealth'), to strike out paragraphs 42, 43, 44 and 57 of the plaintiff's third further amended statement of claim ('the statement of claim'). The plaintiff in the proceeding is Toowoomba Regional Council (the 'Council'). The Commonwealth alleges that those paragraphs should be struck out because they "have a tendency to prejudice or delay the fair trial of the proceeding".

[2] The application is made within a proceeding which concerns a claim by the Council against the Commonwealth in negligence, public nuisance and beach of statutory duty for loss suffered as a result of contamination of soil and groundwater in and around Oakey, Toowoomba by per- and ply-fluoroalkyl substances ('PFAS'). The contamination is alleged to be the result of the Commonwealth's historic use of Aqueous Film Forming Foam ('AFFF') at the Army Aviation Centre Oakey ('Oakey').[1]

(a) the Commonwealth has been responsible for conducting all authorised Department of Defence activities undertaken at Oakey;

(b) from 1977, until at least 2004, the Department of Defence conducted activities at Oakey using AFFF known as 3M Lightwater, which contained PFAS;

(c) PFAS contamination has been identified in an aquifer near Oakey, as well as in soil in and around Oakey; and

(d) Oakey is within the Council's local government area, and the Council owns and operates various infrastructure and assets which have been impacted by the contamination.[2]

[4] The Council alleges, and the Commonwealth denies, that the Commonwealth owed a duty to the Council to exercise reasonable care in the use of AFFF at Oakey. One of the allegations made by the Council in support of the existence of a duty of care is paragraph 57 of the statement of claim:

By reason of the matters pleaded in paragraphs 4, 5, 9, 10, 11, 12, 14, 14B, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 36, 39 and 42 to 44, a reasonable person in the Commonwealth's position would have foreseen a not insignificant risk of harm to the Council, in the form of:

(a) the matters pleaded in paragraph 52; and

(b) the matters pleaded in paragraph 48E,

as a consequence of the Commonwealth's use of AFFF at Oakey.

[5] As both parties' submissions note, there are 23 separate allegations relied on as the basis of the allegation of a duty of care and three of those allegations comprise paragraphs 42, 43 and 44 of the statement of claim.

[6] The Commonwealth denies the allegations in paragraph 57 of the statement of claim by reason of the matters it pleads in the paragraphs of the defence responding to paragraphs 4, 9 to 14, 14B, 16 to 19, 24, 25, 36, 39, 42 to 44, 48A to 48E and 55 of the statement of claim. The Commonwealth's specific defences to paragraph 57 are as follows:

(a) from 1990, the Commonwealth materially reduced the amount of 3M AFFF used at Oakey, and therefore the amount of 3M AFFF solution discharged onto bare ground;

(b) to the extent that the defendant knew or ought reasonably to have known that 3M AFFF was potentially damaging to the environment because of the risk of oxygen depletion in water, a reasonable person in the position of the defendant who held such knowledge would not have foreseen a risk of harm of the kind alleged in subparagraphs 57(a) and (b) of the statement of claim;

(c) by about 2003, Shift Testing was conducted using only water;

(d) from about 2004, the defendant had commenced to change the type of AFFF used at Oakey from 3M AFFF to Ansulite;

(e) there was a concrete training area at Oakey, constructed in 2005, which drained to a capture tank, and which was used for training activities involving AFFF;

(f) it was not until June 2009 that it was possible to conduct an accredited test of groundwater for the relevant PFAS;

(g) the Commonwealth did not know until in or about October 2010 that PFOS and PFOA were present in the groundwater beneath the base at Oakey;

(h) the Commonwealth did not know that PFOS and PFOA had migrated beyond the Oakey base until around 2013 when the first testing of groundwater off-site from the Oakey base was conducted; and

(i) the Commonwealth did not know, and a reasonable person in the position of the Commonwealth would not have known, of some of the matters alleged in paragraphs 3 to 10 and 14A of the statement of claim (that is, in broad terms, the connection between the groundwater and the Council's water supply).[3]

[7] Thus, a central issue in the proceeding is what the Commonwealth knew and what it ought reasonably to have known about the risks to the Council's human health and the environment.

[8] The proceeding has not moved quickly. The proceeding was commenced in 2018. Some 5 years ago the Commonwealth sought particulars of inter alia the allegations in paragraphs 42, 43 and 44 of the statement of claim.[4] Those particulars were supplemented in August 2023. In May 2025 the Council provided amended particulars for paragraphs 42, 43 and 44 of the statement of claim.

[9] In its submissions, the Council explains that these 'knowledge particulars' answer the Commonwealth's requests by:

(a) addressing that the Commonwealth took steps, or ought to have taken steps, to investigate the environmental and human health impacts of using AFFF;

(b) identifying documents created by employees of the Commonwealth (and thereafter held by the Commonwealth), documents addressed to the Commonwealth or its employees (and thereafter held by the Commonwealth), and documents which were publicly available (and hence available to the Commonwealth on its investigations);

(c) identifying persons who were ministers and senior employees, whose knowledge can be attributed to the Commonwealth, as well as some more junior employees of the Commonwealth whom the Council identifies as having had obligations to communicate their knowledge; and

(d) identifying admissions made by the Commonwealth.[5]

[10] The Commonwealth has pleaded to paragraphs 42, 43 and 44 of the statement of claim. The Commonwealth has done so positively, admitting some allegations and denying or not admitting others. Of course, the fact that the Commonwealth has pleaded to the impugned paragraphs does not shield them from a strike-out application. But the progress of the litigation, in spite of the alleged lack of particulars, is at least some evidence that these aspects have not inflicted hardship on the Commonwealth's defence of the proceeding.

[11] A plea using the expression "knew or ought to have known" is in fact two distinct allegations. It is an allegation that the defendant knew of something (i.e. actual knowledge) and an allegation that the defendant ought to have known of something (i.e. constructive knowledge).

[12] Dealing with the first of the allegations, the allegation of knowledge is a plea of "motive, intention or other condition of mind, including knowledge or notice" and so must be specifically pleaded.[6] That means that a party who pleads that a corporation or government department had a particular state of mind, or knew something, must identify who had that knowledge.[7]

[13] The position is similar when dealing with the second of the allegations, constructive knowledge. An allegation that a party "ought to have known" of a fact is really an allegation that there were facts and circumstances which should have alerted a reasonable person to the existence of that fact. So, the pleader must identify the facts and circumstances which should have alerted the party to that fact.[8]

[14] Paragraphs 42, 43 and 44 of the statement of claim blend those allegations of actual and constructive knowledge. However, that is not the subject of an objection from the Commonwealth. And, as explained, the Council has provided particulars of the facts and circumstances it relies on for its allegations of actual and constructive knowledge.

[15] There is some complexity to the allegation of knowledge because of the nature of the allegations and the fact that the Commonwealth (with its numerous Ministers, Departments and employees) is the defendant.

[16] Paragraph 4 of the Commonwealth's submissions appears to make a complaint about, in effect, the size of the task:

The [statement of claim] pleads that the Commonwealth knew a number of things which are important if the Council's case is to be made out. The pleading and particularisation of that knowledge refers to and relies upon the knowledge of a significant number of people, and a significant number of documents. Taking the pivotal allegations in paragraphs 42, 43 and 44 of the [statement of claim], the pleaded case about the Commonwealth's knowledge refers to approximately 66 different people and 43 different roles (which may have been occupied by different people at different times) in at least 8 different Commonwealth departments and 27 other agencies, branches or sub-areas. It also particularises over 179 different documents including both documents sent by or to people within the Commonwealth and articles and publications said to be held by or accessible to the Commonwealth (the allegation being that the Commonwealth knew of the matters contained in those publications).

[17] If, and in so far as the Commonwealth does complain about the size and complexity of the task, I reject the complaint. The nature of the case means that the allegations have a broad scope and cover a wide expanse of time. And, there is no compelling evidence that the task of defending the case is oppressive, unmanageable or prejudicial.

[6] The duty of care is then said to arise as a consequence of a pleading of a foreseeable risk of harm [the statement of claim at [57]] which is said to arise in the premises of (inter alia) all of the pleaded knowledge, comprised in 23 separate paragraphs of the [statement of claim].

[7] It is therefore inescapable that the Council's knowledge case seeks to aggregate the knowledge of various people; it alleges that the Commonwealth's knowledge is comprised of a combination or synthesis (i.e. an aggregation) of the things those people, over those periods of time, knew...

[8] The authorities confirm that a corporation (or a government) may be held to know something that is an aggregate of the knowledge of two or more people, but, only in certain, limited, circumstances. The [statement of claim] is silent on the process of aggregation and the Council seems to maintain the position (set out above) that it is not obliged to plead the aggregation or its basis.[9]

[19] Thus, the essence of the Commonwealth's complaint is that the Council should be required to plead or to provide further particulars of the bases for inferring that the Commonwealth "knew or ought reasonably have known" of risks, being particulars of the bases for attribution and aggregation of knowledge.[10]

[20] Putting aside for the moment the concept of 'aggregation' (discussed below), there are some problems with the Commonwealth's complaint. First, the complaint does not focus on any specific aspect of the Council's case and require further particulars of that aspect. Instead, the objection is that, because the Council's case can be characterised as relying on the concept of aggregation, something more is required - a basis for the attribution and aggregation of knowledge. It is difficult to conceive of what that basis could possibly be.

[21] Second, the rules of pleading require that states of mind, such as knowledge, must be specifically pleaded. That is a requirement of specificity. However, beyond that, the particulars of a defendant's state of mind are necessarily specific to that particular case. In each case the question is whose acts or omissions, or state of mind are taken to be the acts or omissions or state of mind of the corporation, or the Commonwealth or a State or Territory, for the purpose at hand.[11] Identifying the relevant rules of attribution is a process that must be separately conducted in each particular context.[12]

[22] Third, this case has its own idiosyncratic features. This a case involving the Commonwealth rather than a corporation or even a statutory corporation. Just as a corporation's knowledge (or other mental state) is determined by the rules of attribution,[13] those rules of attribution apply to the Commonwealth, a State or a Territory.[14] However, the specific application of those rules depends on the statutory context and the nature of the particular act or conduct in question. Here, the statutory context is broad and covers different departments and different officeholders within those departments.

[23] At least one relevant factor at trial will be identifying the person or persons identified as closely and relevantly connected with the Commonwealth's conduct in using AFFF, or continuing to use AFFF, at Oakey.

[24] Fourth, this is a case where the allegation of the Commonwealth's knowledge of the risks of the use of AFFF covers a broad period of time. Four examples can be given from the Council's particulars:

(a) in 1986 Mr Ray B Brown, an employee with the Commonwealth's Department of Housing and Construction, published a thesis which included a discussion of the environmental effects of AFFF and the Commonwealth subsequently referred to that thesis;

(b) a publication by the US Army Corps of Engineers, entitled "Containment and Disposal of Aqueous Film Forming Foam Solution" dated 31 March 1997, published in Washington and publicly released advised on environmental risks;

(c) a report entitled "Remediation of Old Fire Training Area, Army Aviation Centre Oakey" dated 1 July 1997 prepared by Thiess Environmental Services for the Department of Defence describe efforts to remove contaminated soil; and

(d) guidelines for the use of AFFF were specified in a report dated April 2007 prepared by the Directorate of Environmental Impact Management within the Department of Defence entitled "Environmental Guidelines for the Management of Fire Fighting Aqueous Film Forming Foam Products".

[25] Those example publications span the period 1986 to 2007.[15] Consequently, this case differs from those cases where the issue is the state of knowledge of a corporation or a government department at a particular point in time. The Council's case involves a spectrum of time. The Council contends that in 1977, or in 1983, or in May 1987, or in February 1991, or in June 1996, or in June 1997, or in May 1998, the Commonwealth knew or ought to have known of the risks of using AFFF.[16]

[26] That adds an element of complexity. Different people will have been involved at different times. At each of the alternative points of time, the assessment to be made by the trial judge is: which officeholders' state of mind is to be taken to be the state of mind of the Commonwealth for the purpose at hand. That will necessarily involve the legislative context, which will not have been static at different points in the time span. Obviously enough, that is an onerous task. Some case management may be required to ensure that all of the alternative cases have reasonable prospects.

[27] In any event, for present purposes, the various alternatives over a wide time span mean that the assessment of the knowledge of the Commonwealth will necessarily involve an assessment of the state of knowledge of various people at a number of different points in time. The Commonwealth's submissions suggest that the accumulation of those different aspects of personal knowledge of different persons within the various Commonwealth departments, over the alternative time periods, constitutes the process of aggregation. That process, according to the Commonwealth, requires the Council to plead or provide particulars of the basis of the aggregation.

[28] For a number of reasons, I do not accept that there is a separate process of aggregation which requires an additional element, let alone a process that requires the court to strike-out a pleading that does not plead or particularise the alleged additional element.

[29] Certainly, courts will exercise caution when asked to aggregate the knowledge of two or more individuals and to attribute that aggregated knowledge to a corporation or a government.[17] As explained above, the trial judge will be required to make an assessment as to which of the officeholders' state of mind will be regarded as the state of mind of the Commonwealth for the purpose of assessing the risks in the use of AFFF at Oakey. Or, expressed differently, it will be necessary for the trial judge to identify the person or persons so closely and relevantly connected with the Commonwealth's 'corporate' conduct in this field that the state of mind of that person or those persons can be treated as being identified with the company/government so that their state of mind can be treated as being the state of mind of the company.[18]

[30] Importantly, that is an assessment of the evidence that will be specific to each case.

[31] It is to be doubted that there is a binding concept of aggregation at all. In Commonwealth Bank of Australia v Kojic,[19] Edelman J expressed the strong view that Brambles Holdings Ltd v Carey[20] did not provide a proper basis for the concept of aggregation of knowledge for corporations.

[32] Instead, the courts exercise caution. The reason is obvious. Aggregation involves a fictitious result, in that a corporation can be found to have possessed knowledge which none of its individual employees in fact possessed.[21] And so, in Re Chisum Services Pty Ltd Wootten J said:

"the reality is that there is no 'super mind' identified with the legal personality of the bank, in which the knowledge of various officers can in fact be aggregated for the purpose of reaching a conclusion as to whether the bank acted in good faith. It is not reasonable to assume that something has happened which cannot happen".[22]

[33] On the other hand, the aggregation of knowledge of two people associated with a corporation may be appropriate where the first person has a duty and opportunity to communicate the knowledge to the second person.[23]

[34] In a different context Devlin LJ explained: "you cannot add an innocent state of mind to an innocent state of mind and get as a result a dishonest state of mind".[24]

[35] And the converse situation can arise. In Krakowski v Eurolynx Properties Ltd each of the two people whose knowledge the High Court was prepared to attribute to the company in that case knew enough to fix the company with liability. No aggregation was necessary to reach that result.[25]

[36] The result is that the view has been expressed that aggregation will rarely be available as a technique of attribution.[26] At the least, caution is required in the search for the directing mind and will of the corporation.[27]

[37] The position of statutory corporations will be different. The mere fact that statutory corporations are under the control of a Minister of the Crown does not mean that they are to be regarded as part of the Crown.[28] And, there is no good reason in policy or principle for attributing to a statutory corporation knowledge of Ministers of the Crown whose duties are unrelated to the corporation and who have no direct statutory connection with it.[29]

[38] And the position of a State or the Commonwealth is different again and will require the trial judge to examine the statutory context and the nature of the particular acts, omissions or conduct in question.

[39] In any event, this is an application to strike out a part of a pleading, or it may be an application for further particulars. No evidence has been adduced. What is being assessed is the outline of the Council's case in its pleading and particulars. It is inappropriate for there to be a peremptory determination, in the absence of a proper consideration of the evidence.

[40] As explained, the allegations in paragraphs 42, 43 and 44 are allegations that the Commonwealth knew or ought to have known of the risks to the environment and to human health from using AFFF at Oakey. The Council's case on the Commonwealth's knowledge is not unarguable or hopeless. Substantive particulars have been provided. The court's discretion to strike out pleadings should only be exercised in clear cases.[30] This is not a clear case. The Council's case may or may not succeed. The case will depend on the trial judge's assessment of the weight of the evidence.

[1] The facility is about two kilometres north of the town of Oakey.

[2] Plaintiff's submissions at [16], [17].

[3] These paragraphs are a paraphrased version of paragraph 57 of the Commonwealth's defence.

[4] Versions of the pleadings have changed over time.

[7] Australian Commercial Research & Development Ltd v Commonwealth of Australia [1994] QCA 421; [1995] 2 Qd R 336.

[8] Lyons v Kern Konstructions [1983] FCA 33; (1983) 47 ALR 114; Johnstone v HIH Ltd [2004] FCA 190.

[9] Commonwealth's submissions at [6]-[8].

[11] Director of Public Prosecutions Reference No 1 of 1996 [1998] 3 VR 352 at 354, 355.

[12] Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) 67 NSWLR 237 at [19]. (This is from the powerful dissent of McColl J).

[13] Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. The three levels of attribution rules are the primary, general and special rules of attribution. These rules are helpfully summarised by Daniel Reynolds, Corporate Knowledge: The Search for the Relevant Mind(s) (2018) 92 ALJ 991 at 995.

[14] Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) 67 NSWLR 237.

[15] The particulars cover a wider expanse of time.

[16] These are the alternative dates for knowledge or constructive knowledge that the use of AFFF at Oakey was potentially damaging to the environment and potentially causative of adverse health effects in humans (statement of claim at [42]. Similar knowledge is alleged to have been held as at 16 May 2000 (statement of claim at [43] and as at May 1998, 13 February 2002, December 2002, May 2003 and May 2005 (statement of claim at [44]).

[17] See Cargill Australia Limited v Viterra Malt Pty Ltd [2022] VSC 13 at [2618].

[18] Brambles Holdings Ltd v Carey (1976) 15 SASR 270 at 279, approved by the High Court in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 582-583. See also Lee v Westpac Banking Corporation [2015] FCA 467 at [23].

[19] [2016] FCAFC 186; (2016) 249 FCR 421 at [128] (Allsop CJ and Besanko J agreed).

[20] (1976) 15 SASR 270 at 279. See also Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563.

[21] See Daniel Reynolds, Corporate Knowledge: The Search for the Relevant Mind(s) (2018) 92 ALJ 991 at 1003. This article contains a valuable discussion of the topics considered here.

[22] (1982) 7 ACLR 641 at 650.

[24] Armstrong v Strain [1951] 1 TLR 856 at 872.

[26] Andrew Eastwood, Corporations and the Aggregation of Knowledge (2013) 87 ALJ 553, 553; see also Reynolds, supra.

[28] Babcock International Ltd v Babcock Australia Ltd [2003] NSWCA 6; (2003) 56 NSWLR 51 at [108].

[30] Royalene Pty Ltd v Registrar of Titles [2007] QSC 059 at [6].