Brisbane Airport Corporation Pty Ltd v Airservices Australia & Anor [No 2] [2025] QSC 81

SUPREME COURT OF QUEENSLAND CITATION: Brisbane Airport Corporation Pty Ltd v Airservices Australia & Anor [No 2] [2025] QSC 81 PARTIES: BRISBANE AIRPORT CORPORATION PTY LTD ACN 076 870 650 (plaintiff) v AIRSERVICES AUSTRALIA (first defendant) AND AIG AUSTRAIA LIMITED (FORMERLY CHARTIS INSURANCE AUSTRALIA LIMITED) ACN 004 727 753 (second defendant) FILE NO/S: SC 11343 of 2017 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 24 April 2025 DELIVERED AT: Brisbane HEARING DATE: 22 April 2025 JUDGE: Freeburn J ORDERS: 1. Orders will be made requiring the further expert evidence by 31 August 2025; 2. I will hear the parties on the form of the orders and directions and on costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – OTHER MATTERS – where the first defendant applies for leave to file and serve two further expert reports – where the first defendant has breached a number of court orders – where the first defendant has caused extensive recent delays – where the first defendant delayed its bringing of this application – where the plaintiff does not oppose the application but seeks for it to be conditional on the reports being filed and served earlier than the first defendant’s proposed directions – where the matter is set down for a 12- week trial commencing August 2026 – where key evidence -- 1 of 8 -- 2 was filed and served by the plaintiff’s five years after commencing the litigation – where the plaintiff’s responsive expert seeks to retire at the end of the year – whether the first defendant should be granted leave to rely on further expert reports at trial COUNSEL: L Kelly KC and A Psaltis for the plaintiff B O’Donnell KC, M Eade and C Stackpoole for the first defendant C Brown (solicitor) for the second defendant SOLICITORS: Clayton Utz for the plaintiff Maddocks for the first defendant HWL Ebsworth for the second defendant [1] The first defendant, Airservices Australia (ASA), applies for leave to file and serve two further expert reports which it proposes to rely on at trial. The two reports which ASA seeks to rely on are a further report of Dr Mark Benotti, an environmental chemist, and Dr Michael Petrozzi, a hydrologist. ASA proposes to file and serve the reports by 31 August 2025. [2] Strictly speaking, the application for leave is not opposed. The stance of the plaintiff, Brisbane Airport Corporation (BAC), is that whilst it does not oppose leave, it draws the court’s attention to the serious delays that have already occurred and says that, in the circumstances, the leave to rely on those further expert reports should be conditioned on those reports being filed and served by 2 June 2025. [3] In practical terms though, the evidence is that requiring these expert reports by 2 June 2025 carries with it the significant risk that the reports will not be received by 2 June 2025 or, if received, will be incomplete or provisional. [4] The background to the dispute was explained, at least in a cursory way, in another interlocutory decision made a month ago on 24 March 2025.1 The dispute is being case managed on the Commercial List and a 12-week trial is set to commence on 3 August 2026. [5] ASA’s application is burdened by at least two problems. One is that it has breached a number of court orders. Another is that even in the filing and service of this application, and the material and submissions in support of this application for leave to file expert reports ‘out of time’, ASA has breached orders of the court. [6] And so, even though in a formal sense, the granting of leave was not opposed, the conditions sought by BAC meant that there was a substantive contest as to whether leave should be given and the terms of the leave. The parties filed more than 100 pages of submissions,2 and very lengthy affidavits. They proposed ‘duelling’ draft orders, two solicitors were cross- examined and the application was heard over a full day. Of course, all of that effort was largely unproductive in the sense that the arguments were about process rather than the merits. 1 Brisbane Airport Corporation v Airservices Australia (2025) QSC 54. 2 The submissions included 14 pages of supplementary submissions from ASA. -- 2 of 8 -- 3 The Principles [7] The principles are not in dispute.3 [8] The source of the court’s discretion to extend time for filing and service of expert reports can be found in at least three sources: (a) rule 367, a general provision of the Uniform Civil Procedure Rules 1999 which gives the court a discretion to make any order or direction about the conduct of the proceeding that the court considers appropriate and bearing in mind that the interests of justice are paramount; (b) the specific rules relating to expert evidence, such as rule 427 which gives the court a discretion to give appropriate directions about the use of expert evidence; (c) rule 7 which permits the extending or shortening of times specified by the rules or orders. [9] Viewed from another angle, there is also the court’s power to deal with failures by parties to comply with orders of the court.4 [10] In Allianz Australia Insurance Limited v Mashagat Sofronoff P said: “[55] …[R]elevant expert evidence which has not been dealt with in accordance with the rules may still be admitted in evidence if the interests of justice in ensuring a fair trial require it. The power of the Court of grant leave to a party to tender a non-compliant report or to permit oral evidence to be given by an expert is unfettered by an express provision of the rules. However, the discretion is informed by the purpose of the rules set out in r 5, namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The discretion is also informed by r 5(2) which obliges the Court to apply the rules with the objective of avoiding undue delay, expense and technicality. [56] Of course, these express provisions which guide the Court in the exercise of discretion are subject to the overarching obligation of the Court to ensure that a trial is fair.”5 [emphasis added] [11] At [101] of the same case, Sofronoff P referred to the High Court’s decision in Aon Risk Services Australia Ltd v Australian National University6 and said that case stood for: “…the proposition that a just resolution of proceedings remains the paramount objective and that while speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution, these factors must not detract from a proper opportunity being given to the parties to put their case.”7 3 ASA set out the principles at paragraphs 62 to 80 of their submissions. BAC did not contest those principles. 4 See rules 374 and rule 5(4). 5 [2018] 1 Qd R 429 (Sofronoff P, with whom McMurdo JA and Applegarth J agreed). 6 (2009) 239 CLR 175. 7 Ibid. These passages are quoted by ASA’s submissions. -- 3 of 8 -- 4 [12] Bond J applied the principles from Aon Risk in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd 8, a case involving a late amendment to a pleading, to the circumstance where there was late service of an expert report. His Honour listed the relevant considerations in determining whether to grant leave to a party to rely on an expert report served late. Those considerations were: (a) the point the litigation has reached relative to the trial; (b) the extent of any failure to comply with the directed timetable; (c) the adequacy of the plaintiffs’ explanation for its delay in presenting the real case it wanted to take to trial; (d) the prejudice which would be caused to the defendants if leave is granted; (e) the prejudice which would be caused to the plaintiffs if leave is refused, including whether the plaintiffs might be denied a fair opportunity to present their real case; (f) the effect on other litigants awaiting resolution of their proceedings; and (g) the extent to which prejudice on either side can be ameliorated by alteration to the existing timetable.9 [13] ASA argued for three further factors that were relevant to the court’s discretion, namely: (a) the nature of the evidence sought to be adduced; (b) the complexity of the proceeding; and (c) the nature of an expert’s duty to the court. [14] As to the first further factor, leave is sought to rely on an expert report to be delivered in the future. That means that the court and the parties are at a disadvantage in properly assessing the impact of the new evidence. As to the second further factor, the case is obviously complex – but that affects both sides. As to the third further factor, the duties of an expert are established and set out in the rules.10 [15] Each case depends on its own facts. In this case it is convenient to weigh the relevant considerations under the following headings: the stage of the proceedings; the breaches of orders; the explanations for the breaches; and prejudice/fair trial. Stage of Proceedings [16] This dispute concerns the use of two different fire-fighting products at the Brisbane Airport in the period from 1988 until 2010. The use of those fire-fighting products by ASA, and its predecessor the CAA,11 are alleged to have contaminated the Brisbane Airport site. [17] This proceeding was commenced in 2017. It has now been set down for a 12-week trial commencing on 3 August 2026. [18] Nine years between commencement and trial is a very long time, even for a complex case. 8 [2019] QSC 162. 9 Ibid, at [15]. ASA’s list omits (f) and (g). Note that an appeal against this decision succeeded ([2019] QCA 160) but the principles were accepted. 10 See Uniform Civil Procedure Rules 1999 (Qld) at chapter 11, part 5. 11 Civil Aviation Authority -- 4 of 8 -- 5 [19] It is likely that when BAC commenced proceedings it had not yet marshalled the lay and expert evidence it needed.12 I say that because the pleadings have been amended numerous times and the first of BAC’s expert reports from Mr Lane on the source, cause and extent of contamination is dated 10 September 2021. Mr Lane’s second report is dated 29 August 2022. [20] BAC points to numerous delays since then. However, the context is that this key part of the evidence was finally filed and served five years after the litigation commenced. [21] The statement of claim is presently in its seventh version. The latest versions of the pleadings were filed and served in January and March 2025. Disclosure has been completed, although ASA has recently raised some queries about the adequacy of BAC’s disclosure which is being dealt with in accordance with a disclosure protocol. [22] The major obstacles to be overcome before trial relate to expert evidence. There is, on both sides, a cascading approach to the expert reports, in that the reports of some experts rely on the reports of others. For example, the expert reports on the source, cause and extent of contamination13 will be relied on by remediation and environmental experts14 to determine the remediation that needs to be carried out. There will then be some further experts on the cost of that remediation. [23] Managing that cascading expert evidence has been, and is, difficult because delays at one level will affect later levels. Breaches of Court Orders [24] Running complex litigation like this is a daunting project management task. A variety of skills are required, not least the skill of ensuring that all necessary tasks are performed by team members comprising lawyers, IT professionals and experts in a variety of fields. [25] Even appreciating those complexities, ASA’s recent delays have been appalling. [26] In September 2023 there was a contested hearing. At that time ASA proposed that it take two years – until 31 August 2025 – to file and serve its expert reports from Dr Benotti and Dr Petrozzi. That proposal for Dr Benotti and Dr Petrozzi to take two years was rejected. The court’s reasons for rejecting allowing two years, and requiring the reports by 31 July 2024,15 included the following: (a) the overriding object is to progress the proceeding expeditiously with the real issues to be resolve at a minimum of expense, which may mean that the preparation of the case is not perfect; and (b) the need for a proportionate approach.16 12 Unfortunately, this appears to be the modern approach to litigation – to gather the evidence in the course of the litigation as opposed to marshalling the evidence before or shortly after commencement. That, not surprisingly, leads to amendments to pleadings. 13 For BAC the expert here is Mr Lane. For ASA the experts are Drs Merrick, Benotti and Petrozzi. 14 For BAC the remediation expert is Mr Goulding. For ASA it is Mr Stuckey. 15 I have simplified this slightly. The reports were to be staged with 31 July 2024 being the last date. 16 Reliance was placed on the decision Finkelstein J in Black and Decker (Australasia) Pty Ltd v GMAC Pty Ltd [2007] FCA 1623 at [4]. -- 5 of 8 -- 6 [27] The order that ASA now seeks is that it be permitted to file the expert reports by 31 August 2025 – the very date it sought back in September 2023, and which the court rejected.17 [28] During 2024, ASA sought and obtained consent orders which granted a number of extensions on the basis that the extended dates were firm dates that ASA was committed to meeting.18 In May 2024, orders were made requiring the last of the expert reports on 31 October 2024. In August 2024, ASA proposed further extended dates “with great consideration factoring in all known circumstances”.19 [29] I should observe at this point there is an unhappy approach being adopted by ASA. The idea that ASA was firmly committed to meeting later orders leaves open some questions: What was ASA’s commitment to meeting the earlier court orders? Was ASA’s commitment to compliance with those orders something less than a firm commitment? [30] On 1 November 2024 the court made consent orders requiring the completion of Dr Benotti’s expert report by 29 November 2024 and the completion of Dr Petrozzi’s expert evidence by 20 December 2024.20 Those dates were proposed by ASA at the review hearing on 1 November 2024. [31] However, in December 2024 expert reports of Dr Benotti and Dr Petrozzi were delivered but those reports were incomplete, and they foreshadowed further expert reports. [32] And then, despite the breach of the court orders, ASA have taken until now to proceed with this application. [33] There are two other complications. One is that BAC has recently delivered a further report of Mr Lane which corrects errors in Mr Lane’s Compendium, a document recording the data he relied on. There is a contest concerning the relative significance of those errors. I am not in a position to resolve that controversy. [34] The other complication is that Dr Benotti and Dr Petrozzi are relying on ASA’s own ‘Master Database’.21 Various lawyers and consultants have been contributing to the Master Database – but it is fair to say that the construction of the Master Database has been beset by problems. The Master Database was released to the experts only last month and continues to be added to. Explanation for the Breaches [35] ASA submits that there are three reasons why ASA was unable to comply with the court’s orders to file and serve complete reports by Dr Benotti and Dr Petrozzi by 29 November 2024 and 20 December 2024 respectively: (a) the Lane Compendium; (b) delays in the creation of the Master Database; 17 The field testing and plans of the experts changed after September 2023 but the time now required is the full two years originally requested. 18 BAC submissions at [12]. 19 Maddocks’ letter of 12 August 2024. 20 See BAC’s submissions at [13]. 21 There is likely to be an overlap in the data. -- 6 of 8 -- 7 (c) delays in the performance of the sampling program.22 [36] ASA says that the error in, and the lack of utility of, the Lane Compendium hindered the progress of their experts. Whilst that may be true, the errors in BAC’s data have been known by ASA since mid-2024. And, ASA has always been intending to rely on its own data – a much bigger enterprise. [37] ASA says that the dramatic increase in BAC’s claim, from $29 million to $690 million, caused it to retain further experts, Dr Merrick and Dr Petrozzi. But those experts were retained in February 2023 – more than two years ago. [38] There have been delays and disruptions, including weather disruptions, to the sampling program. But those delays and disruptions have occurred over an extended period during which ASA has consented to various orders extending time, and during which the pursuit of expert reports more generally has been less than prompt.23 The correspondence reveals a large number of requests for extensions, and missed deadlines, and late advice of missed deadlines.24 For example, only on 2 October 2024 did ASA advise BAC that the reports of Dr Benotti and Dr Petrozzi, which were then due on 11 October 2024 and 29 November 2024 respectively, would be late. And, even then, they were unable to say when the reports would be delivered. The court timetable, imposed by a series of consent orders, appears to have had little real connection with the reality of what was happening with the experts. And, more generally, it is surprising that one expert was told that ASA’s legal team was busy with other experts.25 On any view, litigation like this requires the work to progress on multiple fronts. [39] Overall, explanations are provided but they are hardly satisfactory. Prejudice/Fair Trial [40] There is no doubt that the further evidence of Dr Benotti and Dr Petrozzi is crucial evidence. Both parties acknowledge that.26 [41] That raises the prospect that without this evidence, there will not be a fair trial. However, what is necessary is that ASA be given a fair opportunity to present its case. A fair opportunity is not boundless. [42] BAC alleges that it will be prejudiced or at least that its expert, Mr Lane, will be directly prejudiced. Mr Lane, who is 71 years old, plans to retire at the end of 2025. He says that but for this proceeding he would be retired by now. He was engaged by BAC’s lawyers in April 2019 and, not surprisingly, he thought his role in this proceeding would have been completed by now. [43] Significantly, and generously, Mr Lane has agreed to make himself available for the trial in August, September and October 2026. However, he has some leave and travel plans towards the end of this year and into next. The concern is that, if the reports of Dr Benotti and Dr Petrozzi are further delayed, Mr Lane’s planned retirement, and his travel, will be imperilled. 22 ASA submissions at [111]. 23 For example, Mr Abrams and Mr Cavanagh. 24 See Ms Byrne’s affidavit of 28 October 2024 (from page 79 onwards). 25 Mr Ibbotson’s affidavit at page 170. 26 BAC’s submissions at [18]-[20]; ASA’s submissions at [4], [20], 88]-[190]; ASA’s counsel also described the proposed evidence as ‘key evidence’. -- 7 of 8 -- 8 Mr Lane says that the delays in the litigation have already caused him to cancel some important personal events. [44] All of that must be respected. Litigation on this scale has many casualties. But, as explained, the context is that the proceedings were commenced in 2017, and Mr Lane was not retained until 2019. Mr Lane’s second report was delivered in 2022. There is no clear evidence about what transpired in those early years, but any time lost in that period is not the fault of ASA. [45] It is true that Mr Lane will need to consider and perhaps respond to the further expert reports of Dr Benotti and Dr Petrozzi when they eventually arrive. Mr Lane may also be required for expert conclaves and conferences with lawyers. But none of that seems to pose an insurmountable hurdle to the proper and fair conduct of the litigation. Mr Lane has a team that can assist him. The timetable for the conduct of the litigation still has some flexibility to it and adjustments can be made to accommodate Mr Lane. Importantly, Mr Lane is still willing to give evidence and there are no specific impediments created by the delivery of the outstanding ASA expert reports by 31 August 2025 as opposed to 2 June 2025. Conclusions [46] In the circumstances, the factors relevant to the discretion are these: (a) the context is that this case appears to have taken some considerable time to get going, with the proceeding having commenced in 2017, and substantive expert evidence not being available to ASA until 2022; (b) ASA’s progress in preparing its expert evidence has also been painfully slow and, to say the least, ASA is significantly in breach of court orders; (c) explanations have been provided, but they are less than satisfactory; (d) any further delays in the expert reports of are likely to cause hardship to Mr Lane and BAC, and are likely to have flow-on effects for other important expert evidence; (e) nevertheless, at present the proposed trial dates in late 2026 are not in danger and some adjustments to the timetable are still possible; and (f) the further evidence of Dr Benotti and Dr Petrozzi is crucial evidence. [47] In my view the last factor is the most important. The court’s overarching obligation is to ensure that the trial is a fair trial. That makes it difficult to exercise the discretion in a way that shuts out one party from adducing crucial evidence. Certainly, as stated, the fair opportunity afforded to a party to present their evidence is not boundless. Nevertheless, the factors discussed favour exercising the discretion so as to allow ASA the opportunity to put on this evidence. [48] Orders will be made requiring the first defendant’s expert evidence by 31 August 2025. I will hear the parties on the appropriate directions and on costs. -- 8 of 8 --