Brisbane Airport Corporation Pty Ltd v Airservices Australia & Anor [2025] QSC 54

SUPREME COURT OF QUEENSLAND CITATION: Brisbane Airport Corporation Pty Ltd v Airservices Australia & Anor [2025] QSC 54 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: BS 11343/17 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 24 March 2025 DELIVERED AT: Brisbane HEARING DATE: 11 and 14 March 2025, with further written submissions on 17 and 18 March 2025. JUDGE: Freeburn J ORDER: 1. The application filed on 12 March 2025 is dismissed. 2. I will hear the parties on costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – FORM OF PLEADING – STATEMENT OF MATERIAL FACTS ETC, NOT EVIDENCE – where the first defendant sought to strike out parts of the plaintiff’s fourth amended statement of claim – where the first defendant applied to strike out paragraphs 10 to 15 – where the first defendant alleges the relevant paragraphs are deficient – where the first defendant alleges further detail is necessary for the relevant paragraphs to comply with the rules and authorities generally –where the first defendant alleges that the relevant paragraphs and particulars have a tendency to prejudice or delay the fair trial of the proceeding, or are unnecessary and irrelevant – where the rule of pleading and procedural fairness only require -- 1 of 14 -- 2 material facts not evidence – whether the courts should strike out the relevant paragraphs pursuant to rule 171 of the Uniform Civil Procedure Rules 1999 PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – where the first defendant applied to strike out parts of the plaintiff’s fourth amended statement of claim – where the first defendant sought to strike out paragraph 44(a) – where the first defendant alleges the plaintiff in paragraph 44(a) seeks to claim for a hypothetical future breach – where the first defendant claims the plaintiff is not entitled to pursue the first defendant for losses that might or might not be suffered in the future –where the first defendant alleges paragraph 44(a) has a tendency to prejudice or delay the fair trial of the proceeding – whether paragraph 44(a) of the fourth amended statement of claim should be struck out PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the first defendant applied to strike out parts of the plaintiff’s fourth amended statement of claim – where the first defendant sought to strike out certain paragraphs relating to nuisance – where the first defendant alleges the relevant paragraphs of the plaintiff’s pleading are deficient – where the first defendant says the pleading has been expressed in a ‘rolled up’ fashion – where first defendant argues the plaintiff must separately identify material fact – where first defendant alleges the relevant paragraphs should be struck out because they have a tendency to prejudice or delay a fair trial – where the first defendant alleges some paragraphs of the plaintiff’s pleading should be struck out because those paragraphs disclose no reasonable cause of action – whether the court should strike out parts of the plaintiff’s pleading relating to a nuisance claim Uniform Civil Procedure Rules 1999 (Qld) rules 5, 171 Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211, followed Jalla v Shell International Trading and Shipping Co Ltd [2024] AC 595, considered Lee v Abedian [2017] 1 Qd R 549, considered Thomas Borthwick & Sons (Australasia) Ltd v Samco Meats Pty Ltd [1995] 2 VR 474, discussed Costello v O’Donnell (1882) 1 NZLR (CA) 105, discussed Equititrust Ltd v Tucker [2019] QSC 248, cited -- 2 of 14 -- 3 COUNSEL: L Kelly KC and A Psaltis for the plaintiff SJ Webster KC and AL Low for the first defendant SOLICITORS: Clayton Utz for the plaintiff Maddocks for the first defendant [1] The first defendant, Airservices Australia (ASA), applies to strike out certain paragraphs of the plaintiff’s latest version of the statement of claim. The plaintiff, Brisbane Airport Corporation (BAC), filed and served the latest version of the statement of claim on 31 January 2025.1 The first defendant initially raised five categories of complaints about the fourth amended statement of claim but subsequently abandoned categories 2 and 3. That leaves to be resolved, categories 1, 4 and 5. Background [2] The plaintiff, BAC, has operated the Brisbane Airport at its present site since 1988. [3] In the first seven or so years of the operation of the airport at its present site, that is until 5 July 1995, the aviation rescue and fire-fighting services for the airport were performed by the Civil Aviation Authority (CAA).2 From 6 July 1995 until the present, the fire-fighting services were carried out by ASA. By operation of statute, on and from 6 July 1995 the assets and liabilities of CAA became the assets and liabilities of ASA. [4] ASA has leased certain areas within the Brisbane Airport site for the operation of its fire-fighting services. From 6 July 1995 ASA has leased from the Federal Airports Corporation sites within the Brisbane Airport known as the Main Fire Station, the Satellite Fire Station, the Fire Training Area, the Rescue Training Area and AMC 8.3 [5] Two years later, in 1997, by legislation, BAC effectively took over from the Commonwealth (and Federal Airports Corporation) as the lessor under ASA leases. ASA’s leases contained specific provisions concerning contamination, including an indemnity by the lessee. [6] BAC alleges that CAA, and then ASA, used a firefighting product called 3M Lightwater in undertaking the fire-fighting services. That was the product used until about 2003. And then, BAC alleges, from 2003 until 2010 ASA used another product known as Ansulite in its fire-fighting activities. [7] BAC alleges that both 3M Lightwater and Ansulite were Aqueous Film Forming Foam (AFFF) products. 1 The latest version is the Fourth Further Amended Statement of Claim. For convenience I will refer to the pleading as simply the statement of claim. Similarly, the Fourth Further Amended Defence is referred to as the defence. 2 Fortunately, the fire-fighting services performed at the airport involved training for emergencies rather than actual emergencies. 3 The latter area, AMC 8, was leased from Federal Airports Corporation in 1992 and then from BAC under successive leases from 2008 and then 2012, but amended in 2021. -- 3 of 14 -- 4 [8] Paragraph 10 of the statement of claim alleges that the two AFFF products contained chemicals as follows: (a) “3M Lightwater contained, among other ingredients, synthetic per and polyfluoroalkyl substances (PFAS), including perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA), and perfluoro-hexane sulfonate (PFHxS) (b) Ansulite contained, among other ingredients, PFAS including PFOA, 6: fluorotelomer sulfonate (6:2 FtS), 8:2 fluorotelomer sulfonate (8:2 FtS) and 10:2 fluorotelomer sulfonate (10:2 FtS).” [9] Paragraph 11 alleges that PFAS, and in particular six specific chemicals namely: (a) PFOS; (b) PFOA; (c) PFHxS; (d) 6:2 FtS; (e) 8:2 FtS; and (f) 10:2 FtS contain specific properties. Those properties are persistence in the environment, and water solubility so that the chemicals can migrate readily from soil to surface water and groundwater. It is alleged that they have the potential to be transported significant distances through surface and groundwater and are bio-accumulative in that they become more concentrated over time and biomagnify up the food chain. They are, it is alleged, taken up from soil by plants, and are toxic to organisms in the environment. [10] In paragraph 12 of the statement of claim, BAC contends that the sites leased by ASA – referred to as the ‘ASA sites’ – are contaminated and are likely to remain contaminated with PFAS, including the 6 specific chemicals described in paragraph 11. Specific areas in the sites are identified as contaminated such as the soil at each of the ASA sites, the concrete wash bay at the Main Fire Station, etc. [11] The contamination is said to have occurred as a result of the use of the two AFFF products, containing PFAS, in fire-fighting activities. The contamination is alleged to have occurred through soil, leaching from the soil into surface and groundwater, and transportation by groundwater into drainage channels. [12] Then, in paragraph 14 of the statement of claim, the allegation is that PFAS, including the six specific chemicals, ‘emanated’ from the ASA sites and spread to: (a) areas of Brisbane Airport outside the ASA sites – particulars of which are given; and (b) areas outside the boundaries of the Brisbane Airport. [13] That contamination is said to be the result of the two AFFF products containing PFAS which were discharged during fire-fighting activities. -- 4 of 14 -- 5 Principles [14] Rule 171 of the Uniform Civil Procedure Rules 1999 enables the court to strike out a pleading, or a part of a pleading, if it does not disclose a reasonable cause of action or defence, or if it has a tendency to prejudice or delay the fair trial of the proceeding. [15] The purpose of the statement of claim is to identify the material facts that support the claims made in the claim. More specifically, UCPR 149(1) requires that each pleading must: (a) be as brief as the nature of the case permits; and (b) contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and (c) state specifically any matter that if not stated specifically may take another party by surprise; and (d) subject to rule 156, state specifically any relief the party claims; and (e) if a claim or defence under an Act is relied on—identify the specific provision under the Act. [16] In complex litigation the first requirement, brevity, is often overlooked. As Jackson J explained in Mio Art Pty Ltd v Macequest Pty Ltd,4 the second requirement that the pleading state the material facts rather than the evidence, serves an important purpose. The objective is for the case to be reduced to its ‘factual skeleton’. The material facts are those facts that comprise the elements of the cause of action or the defence. Material facts do not comprise the law, argument, reasons, theories or conclusions.5 [17] It is also important to bear in mind that, in applications such as this, the starting point is rule 5 of the UCPR.6 That is, the parties have an overriding obligation to the court to facilitate the expeditious resolution of the real issues in civil trials. [18] ASA particularly relies on the authorities that require a direct and unambiguous identification of the material facts relied on to establish the causal link between the defendants’ conduct and the loss said to have been suffered.7 [19] I now turn to the specific categories of objections to the statement of claim. Category 1: Paragraphs 10 to 15 [20] In paragraph 36 of its submissions ASA says this: “36. Having regard to the Rules, and the authorities on pleading causation, ASA submits that what adherence to the Rules requires is for paragraphs [10] to [13] of the 4FASOC to allege: 4 [2013] QSC 211 at [65]. 5 See the discussion and the authorities in Earthtec Pty Ltd v Livingstone Shire Council [2023] QSC 22 at [33]-[37]. 6 Equititrust Ltd v Tucker [2019] QSC 248 at [6]. 7 Sanrus Pty Ltd v Monto Coal No. 2 Pty Ltd (No 7) [2019] QSC 241 at [17]. -- 5 of 14 -- 6 (a) which specific AFFF Product; (b) as used by CAA, or ASA (or both); (c) is alleged to have resulted in which specific PFAS; (d) being present in which specific media;8 (e) at which specific leased sites; (f) in what specific concentrations.” [21] The submission here is rather diffuse. What is said is that the rules and authorities generally require that causation be pleaded in a way that identifies each of the six specified descriptors. No specific rule or authority is said to require each of those descriptors. It is plainly not the case that any element of the cause of action is missing. Nor is it the case that causation is not properly pleaded. Paragraphs 10 to 15 of the statement of claim make clear BAC’s case about causation. Paragraph 13, in particular, alleges that the contamination is the result of the discharge of the AFFF products containing PFAS during fire-fighting activities. [22] Here, the only element ‘in play’ is causation. But, this is a relatively simple case on causation. It is no more complex that damage caused to a neighbouring property by vibrations, or the escape of chemicals or fumes or fire.9 In that way, it contrasts with more difficult cases on causation.10 [23] In reality, the six descriptors that ASA points to are further detail that ASA submits are necessary. But the fact that a party requires more detail does not mean that the pleading is deficient. The material facts are to be pleaded, not the evidence. [24] As explained, the first requirement of a pleading is that it be as brief as the nature of the case permits. And the second requirement is that it plead only the material facts, not the evidence by which the material facts are to be proved. [25] The borders between material facts and the evidence are sometimes a little hazy and minds may differ on where the boundaries lie between the two concepts. In some cases, a question of degree may be involved. As Jacob and Goldrein state in their text: “The ultimate purpose of the pleading is to define the issues in dispute and to place the defendant in the position of knowing the case it must meet. In that sense the pleading rules are a part of the requirement of procedural fairness.”11 [26] Here, it is difficult to see why the six sets of details specified in paragraph 36 of ASA’s submissions are required by the rules of pleading and procedural fairness. What is being required are further details rather than material facts. A plaintiff is not required to bake the statement of claim according to a recipe specified by the defendant. The requirement is merely that the essential ingredients be present in the pleading. 8 The reference to ‘media’ is a reference to the medium through which the PFAS was transmitted, such as groundwater or soil. 9 See Balkin & Davis, Law of Torts, 6 th ed at [14.8]. 10 See, for example, McMullin v ICI Australia (1997) 72 FCR 1. 11 Jacob & Goldrein, Pleadings, Principles and Procedure, Sweet & Maxwell at 165. -- 6 of 14 -- 7 [27] Of course, the prospect is that some or all of the detail required will be somewhere in the particulars supplied, in the expert reports or lay evidence-in-chief – all of which has already been filed and served prior to the commencement of the trial, or will be filed and served prior to the commencement of the trial. [28] As I have mentioned, under rule 171, for the court to strike out a pleading, or part of a pleading, it is necessary to be satisfied that the pleading does not disclose a cause of action or defence, or that the pleading has a tendency to prejudice or delay a fair trial. Those requirements are not satisfied here. [29] Further, it is important to record that this application has been made very late in the proceeding. For example, substantial expert reports have been filed and served by both parties. It may be that the expert reports do not supply the detail requested in paragraph 36 of ASA’s submissions. Possibly there will be ‘gaps’ in the expert evidence. If that turns out to be the case, then the lack of evidence may adversely affect the merits of BAC’s case. But that weighing of the evidence is an issue for the trial judge. The adequacy of the pleading as a factual skeleton is entirely different. [30] There is one further aspect of paragraphs 10 to 15 that needs to be considered. [31] Counsel for ASA raised an issue with paragraph 11 of the statement of claim. That paragraph commences: “PFAS, and in particular PFOS, PFOA, PFHxS, 6.2 FtS, 8.2 FtS and 10.2 FtS, have the following properties, characteristics or effects…” [emphasis added]. The complaint was that the paragraph was open-ended in the sense that the evidence refers to a number of other PFAS compounds, that is compounds beyond the six stated. Counsel for ASA submitted that the result of the words ‘and in particular’ was that on the pleading it was unclear whether BAC was contending that those other PFAS compounds have the specified properties, characteristics or effects. [32] I do not accept the criticism. On a plain reading the words mean that: (a) PFAS (that is the whole family of PFAS) have those specified properties, characteristics or effects;12 and (b) The six specified PFAS compounds (that is, six members of the PFAS family), in particular, have those specified properties, characteristics or effects. [33] Paragraph 11 is not open-ended and is not vague or embarrassing. Category 4: Paragraphs 44, 45, 45A and Annexure I13 [34] Paragraph 44 of the statement of claim starts in this way: “Further to the loss and damage pleaded in the preceding paragraph, BAC has suffered loss and damage and, or alternatively, it is likely that in the future BAC will continue to incur costs and suffer loss and 12 Of course, this may or may not be proved at trial. 13 Categories 2 and 3 were not pressed. -- 7 of 14 -- 8 damage arising from the PFAS contamination pleaded in paragraphs 12 to 15 above, comprising: (aa) costs of the type pleaded in paragraph 39 above in connection with projects and other activities presently being undertaken or to be undertaken by BAC at Brisbane Airport; (a) In the event that ASA fails to comply with its obligations under clause 43.3 of each of the ASA Leases and clause 10.7 of the AMC8 Lease, the cost of investigating, containing, managing, treating rectifying and/or removing the PFAS contamination from each of the ASA Sites and otherwise remediating each of those sites; (b) …[emphasis added]” [35] ASA’s complaint is that the allegation in paragraph 44(a), that ASA is liable to indemnify BAC under the indemnities in the leases, are for losses that are yet to be suffered. ASA maintains that, as a matter of law, BAC is not entitled to pursue ASA for, in effect, losses that might (or might not) be suffered in the future. [36] First, it is important to keep in mind that, in both contract and tort, the law has permitted recovery of damages for prospective losses. The topic is usefully analysed in McGregor on Damages (20th ed) in Chapter 11. There the authors explain the general principle that applies to prospective damages: “The rule is that damages for loss resulting from a single cause of action will include compensation not only for damage accruing between the time the cause of action arose and the time the action was commenced, but also for the future or prospective damage reasonably anticipated as a result of the defendant’s wrong, whether such future damage is certain or contingent. Perhaps the commonest illustration of the rule is an action for personal injuries where every day damages are awarded which take into account prospective pain and suffering, prospective loss of amenities of life, prospective medical expenses and prospective loss of earnings.” [emphasis added] [37] Much depends on whether there is one or more causes of action, or even a continuing cause of action. In nuisance cases, for example, the cause of action may be a continuing cause of action ‘until the root of the trouble is eradicated’.14 However, in the recent case of Jalla v Shell International Trading and Shipping Co Ltd15 the UK Supreme Court analysed the categories of nuisance cases that can be regarded as continuing nuisance and those that are ‘one-off’ cases. In the case before the court, the decision was that, on the facts, it was a ‘one-off’ because there was no repeated activity by the defendants, and no ongoing state of affairs for which the defendants were responsible, that was causing continuing undue interference with the use and enjoyment of the claimants' land. 14 See Balkin & Davis, Law of Torts, 6 th ed at [14.50] citing Maberley v Henry W Peabody & Co of London Ltd [1946] 2 All ER 192 at 194. See also the discussion in McGregor on Damages (supra) at [11-012]. 15 [2024] AC 595. -- 8 of 14 -- 9 [38] Where this case falls will depend on its particular facts. It may have been a continuing nuisance up until the point when ASA ceased using the PFAS compounds. In any event, whichever category the case falls into, the award of damages may take into account future as well as past losses.16 [39] Second, no doubt appreciating those general principles, ASA does not attack BAC’s claim for past losses totalling $17.3m, for damages for failure to indemnify, or even for damages for breach of the indemnity which are not able to be immediately quantified because they depend on future events.17 Those concessions mean that it is then something of a difficult exercise to try to draw a line between what ASA says is compensable and what is not. [40] Third, ASA focusses on the problem that BAC’s claim in paragraph 44(a) is for “a distinct hypothetical future loss which is contingent on ASA breaching other lease obligations” – obligations which are not (yet) said to have been breached.18 That submission has some force. By its terms, paragraph 44(a) of BAC’s pleading claims loss in the event that ASA fails to comply with its obligations under clause 43.3 of each of the ASA Leases and clause 10.7 of the AMC8 Lease. In other words, there is a contingency. The allegation is that BAC will, in the future, suffer a loss if ASA breaches the leases. As ASA expresses it, BAC can claim for future losses from a present breach, but it cannot claim for a hypothetical future breach of the indemnity. [41] Of course, as ASA points out, equity permits the court to order a quia timet19 injunction, or specific performance, but neither are claimed here. [42] Fourth, BAC is right to point out that, at least at trial, much will depend on the proper interpretation of the indemnities.20 Here, there are in fact two relevant indemnities. The first is the broader indemnity in clause 43.4 whereby ASA indemnifies BAC21 for “all actions, claims, liability, costs loss and damage arising from any Contamination of the Site to the extent that any Contamination is caused or contributed to by the Lessee”. Clause 10.5 of the AMC8 leases is similar. [43] The second indemnity relied on by BAC is the indemnity in paragraph 43.3 of the leases.22 That narrower indemnity has a precondition. For the indemnity to be engaged, BAC must demonstrate that there is a reasonable likelihood of contamination in the two months before the expiry date of the lease. If that precondition is satisfied, then ASA is obliged to arrange and pay for a survey and rectification work. Clause 10.7 of the AMC8 leases is in different terms but has a similar regime. If an environmental audit three months before the expiry date discloses any soil pollution, including any contamination of groundwater, then (in summary) ASA must fund a clean-up. 16 Balkin & Davis (supra). 17 ASA submissions of 18 March 2025 at [4]. 18 ASA submissions of 18 March 2025 at [6]. 19 Latin – ‘because he fears’. A quia timet injunction prevents or restrains some threatened action which would cause damage. 20 BAC submissions of 17 March 2025 at [4]. 21 For convenience I have referred to only the latest entities occupying the position of lessor and lessee. 22 And also clause 10.7 of the AMC8 leases. -- 9 of 14 -- 10 [44] Fifth, it is important to distinguish between those two species of indemnities. A fair reading of paragraphs 39 to 44 of the statement of claim makes it clear that in this part of the pleading the claim is that the contamination alleged in paragraphs 12 to 15 has led to BAC incurring “costs, loss and damage” which BAC says is compensable under the broader indemnity in clause 43.4 (and 10.5) – that is the first of the two indemnities described above. This claim is not a claim made under the narrower ‘end of lease’ indemnity in clause 43.3 (and 10.7). That much is clear from paragraphs 42 and 43 of the statement of claim in particular. [45] Sixth, based on that broader right of indemnity under clause 43.4 (and 10.5), or the breach of that obligation to indemnify, BAC claims loss and damage (paragraph 43 of the pleading) and future or continuing loss and damage (paragraph 44 of the pleading). That is the context in which paragraph 44(a) is pleaded. [46] Seventh, as the emphasized parts of paragraph 44 (quoted above) make plain, paragraph 44 uses the language “Further to the loss and damage pleaded in [paragraph 43]”, and so is an additional plea of damage based on the breaches the preceding paragraph. This is a plea of the damage said to be comprehended by the broader indemnity in clause 43.4 (and 10.5). [47] Paragraph 44 is not intended to be a plea of the damage arising from a breach of, or an anticipated breach of, the narrower ‘end of lease’ indemnity in clause 43.3 (and 10.7). [48] And so, in broad terms,23 BAC pursues its right to the broader indemnity in clause 43.4 (and 10.5). The claims pursuant to that indemnity are: (a) the claims in paragraph 43 of the pleading deals with the actual costs that have already been incurred;24 (b) the claims in paragraph 44 which identifies the continuing or future costs that will be incurred. [49] Eighth, one aspect of those continuing or future costs is the costs of the type already being incurred [paragraph 44(aa)]25 as well as the continuing costs of investigating and remediating. In the course of assessing those continuing or future costs it will be relevant for the court to consider if it is likely that ASA will or will not comply with its ‘end of lease’ indemnity [paragraph 44(a)]. [50] Ninth, the potential for ASA to comply with its ‘end of lease’ obligations may be used as a shield or a sword. Conceivably, ASA might point to the clause and say that it is likely that it will comply with this obligation and so the court need not award damages representing continuing or future costs because of the existence and likely compliance with that ‘end of lease’ indemnity obligation. Or BAC may contend at trial that its costs will extend into the future, and beyond the term of the leases because ASA is not likely to comply with the ‘end of lease’ indemnity and so the award of damages need not accommodate for that prospect. 23 This is a generalisation. The demarcation is not particularly clean. 24 The details of those costs are in paragraph 39 of the pleading. 25 Paragraph 44(aa) has the appearance of dealing with past costs. However, having regard to the chapeau to paragraph 44, and paragraph 43, what paragraph 44(aa) seems to be addressing is continuing or future costs of the type already incurred and identified in paragraph 39. -- 10 of 14 -- 11 [51] Tenth, there is something of a disconnect between BAC’s submissions and ASA’s submissions. The disconnect is best illustrated by this passage from ASA’s submissions: “ASA does not assert that BAC cannot claim for future losses from a present breach of the indemnity; rather, it asserts that BAC cannot claim for a hypothetical future breach of the indemnity.”26 [ASA’s underlining] [52] However, as I understand BAC’s pleading, BAC in fact claims continuing and future losses from a ‘present breach’ (to use ASA’s language). Paragraphs 43 and 44 of the pleading do not deal with the element of obligations or breach of obligations. Paragraphs 43 and 44 are confined to pleading, for better or worse, the loss and damage said to flow from the failure to indemnify for the (alleged) existing breach of the broad indemnity in clause 43.4 (and 10.5). Paragraph 44 does not allege a future breach. It says nothing about breaches, at least as an element of the cause of action. What paragraph 44(a) does is to say that one part of BAC’s continuing or future losses arising from the ‘present breach’ is that it will have to continue investigating and remediating, and it will have to continue to do that in the event that ASA does not comply with its ‘end of lease’ indemnity. [53] In that way, ASA’s likely compliance or non-compliance is merely a fact that will influence the measure of loss and damage to BAC. Thus, if the court were convinced to the relevant standard that ASA is likely to comply with its ‘end of lease’ obligations, then the award of damages will take that into account by limiting the damage to the period prior to the end of the leases. And, if the court were convinced that ASA is unlikely to comply with its ‘end of lease’ obligations, then the award will need to take into account an additional period of loss after the expiry of the leases. The trial judge will need to assess the veracity of that damages claim. [54] That, at least, is how the pleading can be understood. [55] ASA’s submissions would be logical and correct if BAC’s case in paragraph 44(a) were properly understood to be a standalone case to the effect that ASA will, in the future, breach the ‘end of lease’ indemnity in clause 43.3 (and 10.7), and that breach will cause loss and damage. However, that does not appear to be BAC’s case. [56] For those reasons, I will not strike out paragraph 44(a). Category 5: Paragraphs 46 to 52A and part of Annexure H [57] Paragraphs 46 to 52A of the statement of claim can be summarised in this way: (a) By using the fire-fighting products CAA, and then ASA caused the PFAS contamination of ASA sites and other areas of the Brisbane Airport [paragraph 46]; (b) ASA has refused BAC’s request to remove the PFAS contamination from the ASA sites, and has refused to remediate [paragraph 47]; 26 ASA submissions of 18 March 2025 at [6]. -- 11 of 14 -- 12 (c) Because of ASA’s refusal the PFAS contamination caused by CAA and then ASA will continue to cause material injury to the ASA sites and other areas of Brisbane Airport [paragraph 48]; (d) By reason of s 9(1) of the Civil Aviation Legislation Amendment Act 1995 (C’th), ASA is liable for the material injury caused by the conduct of the CAA [paragraph 49]; (e) From 1988 and 1995 CAA was aware, or ought to have been aware, that the AFFF that it used in firefighting was potentially damaging to the environment and would potentially result in PFAS contamination [paragraph 49A(a)]; (f) From 1995 ASA was aware, or ought to have been aware, of the same potentialities [paragraph 49A(b)]; (g) From 1988 until 1995, it was reasonably foreseeable to a person in the position of CAA that the use of AFFF products in firefighting activities would damage the environment or result in PFAS contamination or cause material harm and that a person in the position of BAC would suffer loss and damage [paragraph 49B]; (h) From 1995 those same things were reasonably foreseeable to a person in the position of ASA [paragraph 50]; (i) BAC has suffered loss and damage as a consequence of the material injury caused by the conduct of CAA and then ASA, namely the loss and damage pleaded in paragraphs 39, 43, 44(b) and 44(d) of the statement of claim; (j) Further to that loss and damage, if the material damage is allowed to continue it is likely that BAC will suffer loss and damage in the future, namely the loss and damage pleaded in paragraphs 44(aa), (a) and (c) above [paragraph 52]; (k) In the circumstances, ASA is liable in nuisance to compensate BAC for the loss and damage pleaded in paragraphs 39, 43 and 44 above [paragraph 52A]. [58] In that context, ASA’s latest written submissions put its first complaint about those paragraphs in this way: “Properly understood, the focus of ASA’s first complaint is not one which requires the determination of contestable propositions of law ahead of trial. The essence of ASA’s complaint is simply that BAC should properly plead out whatever its complaints are, and expose the material facts properly, rather than rolling them up into a single, amalgamated and generalised set of allegations which conceal rather than reveal the real issues which the Court will be asked to determine. This is a general application of the proposition that ASA is “entitled to have the plaintiff pinned down to a causation hypothesis which is not characterised by imprecision and ambiguity…the must be a direct and unambiguous identification of the material facts relied on to establish the causal link…”27 27 ASA submissions of 18 March 2025 at [9]. The quote is from Lee v Abedian [2017] 1 Qd R 549 at [81(f)]. -- 12 of 14 -- 13 [59] Although frequently used in the context of defamation pleadings,28 the criticism that a pleading has been expressed in a ‘rolled up’ fashion is essentially a criticism that material facts have not been pleaded separately. In Lee v Abedian, for example, the ‘rolled up’ plea was a problem because the pleading did not specifically identify which conduct was relied on against each defendant individually.29 That is not a problem here. [60] Here, CAA and ASA are alleged to be several concurrent tortfeasors as was the case in Thomas Borthwick & Sons (Australasia) Ltd v Samco Meats Pty Ltd. In that case, an injured employee claimed successive employers were exposing him to the risk of injury where he was required to perform work activities which involved the lifting and carrying of heavy and awkward carcasses of meat.30 Another example of several concurrent tortfeasors, perhaps closer in facts to this case, is Costello v O’Donnell where a downstream owner of land sued the owners of several upstream mines, each of whom fouled the water of the stream and thereby caused damage to the downstream plaintiff.31 [61] But here the respective conduct of the CAA and ASA is easily identifiable. ASA succeeded CAA on 6 July 1995. It was CAA that used AFFF is firefighting up to and including 5 July 1995. Thereafter it was ASA. This case is therefore some distance from creating the problem in Lee v Abedian (discussed above).32 [62] Of course, each pleading has to stand on its own merits, bearing in mind the principles of pleading discussed above. [63] ASA argues that BAC must separately identify ‘some combination of the material facts’ which plainly identifies what the material injury said to have been caused by CAA’s acts, as distinct from the subsequent acts of ASA. I am unable to see why that is a requirement. Plaintiff P may sue Defendant D1 and D2 for the conduct of both of them. Of course, it is necessary that P plead the material facts against each of D1 and D2. That has been done here. BAC has pleaded the conduct of each of CAA and the conduct of ASA. Their relevant conduct falls either side of midnight on 5/6 July 1995. And loss and damage needs to be pleaded. Again, that has been done. [64] It may be that BAC cannot possibly distinguish the injury done by CAA from that done by ASA. That was the case in Costello v O’Donnell (discussed above) where the plaintiff was unable to identify the separate contamination of the 30 different miners who had poured their tailings into the stream. Or, it may be that the testing data, perhaps with the benefit of sophisticated time lapse technology, will be able to track and identify the extent to which the PFAS contamination by reason of CAA’s conduct and the extent to which the PFAS contamination spread by reason of ASA’s conduct. Possibly, specific compounds or event different generations of the compounds may assist the process. 28 See, for example, Hill v Comben [1993] 1 Qd R 603. 29 [2017] 1 Qd R 549 at [118], [119]. 30 [1995] 2 VR 474. 31 (1882) 1 NZLR (CA) 105; these two cases are given as examples of several concurrent tortfeasors by Balkin & Davis, Law of Torts, 6th ed at [29.26]. 32 I acknowledge there are other problems with the rolled up pleas in Lee v Abedian. -- 13 of 14 -- 14 [65] But those are all matters of evidence. The ‘factual skeleton’ does not require BAC to plead the evidence. There may be problems for BAC in identifying the damage attributable to each of CAA and ASA, but they are not pleading problems. The elements are pleaded – breach, causation and loss and damage. Even if the damage alleged against both CAA and ASA overlap, or are coextensive, there is no basis for striking out the pleading under rule 171. [66] It may not be possible to draw a neat, easy line between the contamination that occurred up to 5 July 1995 and the contamination that occurred after that date. Again, that illustrates the importance of the evidence. It does not support a strike out. [67] ASA’s second point is that BAC has not pleaded a set of material facts that allows BAC to maintain a cause of action in nuisance against ASA based on some inherited liability of CAA, where CAA ceased to exist prior to BAC acquiring any proprietary interest in the Brisbane Airport land.33 [68] However, that argument proceeds without any proper acknowledgement of the statutory context. Section 9(1) of the Civil Aviation Legislation Amendment Act 1995 (C’th) renders ASA liable for the acts of the CAA.34 On a strike out application, the court should ordinarily assume the validity of the claims made in the statement of claim. Based on s 9(1), it seems reasonably arguable that ASA took on and assumed all of the liabilities of CAA and therefore became responsible for any nuisance proved against CAA. Conclusions [69] For those reasons the application is dismissed. [70] As I have mentioned, this application comes very late. In substance, the impugned paragraphs have been in the statement of claim for some time. A great deal of lay and expert evidence has been prepared or finalised on the basis of the existing pleadings. That is a further basis for refusing the application. 33 ASA submissions of 18 March 2025 at [15]. 34 Subject to some exceptions that are not presently relevant. -- 14 of 14 --