Federal Court of Australia

Perth Airport Pty Ltd v Airservices Australia [2025] FCA 351

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to amend its statement of claim in terms of the minute of proposed further amended statement of claim that is annexure “A” to the interlocutory application filed 4 November 2024.

2.    By 4.30pm (AWST) on 17 April 2025 the applicant file and serve the further amended statement of claim.

3.    The applicant pay the respondent’s costs thrown away consequent on the amendment.

4.    The respondent pay the applicant’s costs of the application.

5.    Paragraphs 5 – 8 of the orders made on 21 November 2024 be set aside.

6.    By 4.30pm (AWST) on 24 April 2025 the respondent:

(a)    file and serve an amended defence; or

(b)    serve on the applicant a minute of proposed amended defence with proposed amendments that are not merely responsive to the amendments made in the further amended statement of claim.

7.    By 4.30pm (AWST) on 1 May 2025 the applicant serve on the respondent a notice indicating whether it consents to any minute served in accordance with paragraph 6(b) of these orders.

8.    By 4.30pm (AWST) on 8 May 2025 the respondent:

(a)    file any minute of proposed consent orders; or

(b)    file and serve any application,

for leave to amend its defence in terms of any minute served in accordance with paragraph 6(b) of the orders.

9.    By 4.30pm (AWST) on 15 May 2025:

(a)    the applicant file and serve a minute of proposed consent orders concerning the future conduct of the proceeding and a position paper in support of the proposed orders; or

(b)    the parties file and serve competing minutes of proposed orders concerning the future conduct of the proceeding and position papers in support of the proposed orders.

10.    The minute(s) filed and served in accordance with paragraph 9 of these orders are to address the following matters and such other matters as either party may consider relevant and appropriate:

(a)    any proposed change(s) to the referee proposal the subject of paragraph 4 of the orders made on 21 November 2024;

(b)    any proposed extensions of time for completion of referee reports;

(c)    any proposed further or additional steps necessary for completion of referee reports;

(d)    proposed orders relating to adoption or a hearing concerning adoption of referee reports;

(e)    proposed orders relating to mediation; and

(f)    proposed orders for completion of all remaining interlocutory steps and determination of all issues in the proceeding.

11.    The position paper(s) filed and served in accordance with paragraph 9 of these orders is (are) to as briefly as the issue or matter permits:

(a)    irrespective of whether or not any change to the referee proposal is proposed, identify the issues in the proceedings, by reference to the applicable paragraphs of the pleadings, to which each question (or proposed new or amended question) in the referee proposal relates;

(b)    set out the grounds or reasons for any proposed change to the referee proposal;

(c)    explain the present state of preparation of referee reports, estimated time for completion and any steps that are required before completion;

(d)    explain the present state of discovery and inspection in the proceeding; and

(e)    to the extent that they are not self-explanatory, set out the grounds or reasons in support of the proposed orders.

12.    The proceeding be listed for a case management hearing at 10.15am (AWST) on 21 May 2025 for 2 hours.

13.    The parties have liberty to apply on 48 hours’ written notice for orders setting aside or varying paragraphs 9 – 12 of these orders and, otherwise, to relist the case management hearing.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FEUTRILL J:

1    These reasons concern an interlocutory application for leave to further amend the statement of claim the applicant (or Perth Airport) filed in November 2024. The respondent (or Airservices) objects to the grant of leave on the ground that the insertion of the expression ‘(or potentially toxic)’ into para 22(e) of the statement of claim would render the pleading evasive or ambiguous or likely to prejudice, embarrass or delay the proceeding. To understand why such a relatively minor amendment is said to result in an objectionable pleading it is necessary to explain a little of the procedural background and nature of the issues raised in the proceeding.

The applicant’s case in brief

2    On 29 November 2022 the applicant filed an amended statement of claim pursuant to leave of the Court granted on 28 November 2022. The following is a summary of the main allegations the applicant advances in its amended statement of claim.

3    The applicant leases the land upon which the Perth airport is located from the Commonwealth under a lease that has a term of 50 years with an option to renew for 49 years. The applicant sub-leases parts of the Perth airport land to Airservices. Airservices provides air traffic services and aviation rescue and fire-fighting services at the Perth airport. The provision of the fire-fighting services involves the use of aqueous film forming foam products. These products are fire suppressants and have been used in extinguishing fires and during training. The products have been stored on the Perth airport land. The Civil Aviation Authority had provided the services and used and stored the products before Airservices. Under certain transitional legislative provisions, Airservices is liable for the Civil Aviation Authority’s conduct in respect to the Perth airport land.

4    The Civil Aviation Authority and Airservices used and stored foam products called ‘3M Light Water’ and ‘Ansulite’. These products contained per- and polyfluoroakyl substances (PFAS). Certain parts of the Perth airport land were contaminated with PFAS as a result of the activities of the Civil Aviation Authority and (or) Airservices. The applicant has suffered loss or damage as a result of the contamination. The applicant has suffered the loss or damages because of Airservices’ negligence, nuisance, breach of certain terms of the leases or breach of certain provisions of the Airports Act 1996 (Cth).

5    A central feature of the applicant’s amended statement of claim is that: ‘at certain levels, [PFAS] is toxic to organisms in the environment including to humans’; the Perth airport land has had, and continues to have ‘concentrations of PFAS which are above acceptable levels (in that they pose a material risk to the environment or to humans)’ (described in the pleading as PFAS Contamination); and, as a result of the actions of the Civil Aviation Authority and Airservices, damage was caused and is continuing to be caused to certain parts of the Perth airport land (described in the pleading as Contaminated Sites).

Relevant procedural background

6    The applicant filed an originating process and statement of claim on 29 August 2022 and Airservices filed a notice of appointment of lawyer on 9 September 2022.

7    The proceeding was initially allocated to another docket judge who made orders in October 2022 requiring the parties to confer with a view to identifying all the matters likely to be in dispute relating to the use of PFAS, the extent of contamination, the past cost associated with addressing PFAS contamination and costs of remediation with a view to identifying questions for inquiry and report by suitably experienced referees.

8    On 28 November 2022 the docket judge granted the applicant leave to file an amended originating application. On 29 November 2022 the applicant filed an amended originating application and an amended statement of claim. The central features of the statement of claim were unaffected by the amendment. On 3 February 2023 Airservices filed its defence and on 3 March 2023 the applicant filed its reply.

9    In the meantime, pursuant to orders made on 28 November 2022, the parties were directed to continue conferral for the purposes of identifying and referring questions to referees for report. That process continued under the supervision of the docket judge and culminated in orders made on 24 November 2023 by which an order was made under s 54A of the Federal Court of Australia Act 1976 (Cth) for the appointment of referees to answer certain questions in accordance with a procedure set out in a referee proposal annexed to the orders.

10    The proceeding was re-allocated to my docket in July 2024. At a case management hearing on 14 August 2024 I made orders, by agreement between the parties, that amended the referee proposal.

11    On 3 October 2024 Airservices filed an interlocutory application by which it sought orders, in effect, setting aside the orders made on 14 August 2024 to amend the referee proposal and for the referee proposal to be amended in terms of a document annexed to that application.

12    On 4 November 2024 the applicant made the present application to further amend its statement of claim.

13    On 21 November 2024 I made orders, by consent, in effect setting aside the order to amend the referee proposal and for the referee proposal to be amended in the form annexed to those orders. Although amendments were made to the questions for the toxicology referee, question 1 of the original proposal and amended proposal were both addressed to the question of whether specific PFAS are actually toxic or potentially toxic to organisms in the environment including humans. Certain other orders were made addressing potential amendments to the defence and referee proposal should the application for leave to further amend the statement of claim be granted and otherwise dismissing the respondent’s interlocutory application filed on 3 October 2024. Orders were also made to facilitate the exchange of submissions and listing of the application for leave to further amend the statement of claim.

Existing issues

14    While, as will be explained later, Airservices submits that the proposed amendment to para 22 of the statement of claim introduces evasiveness, ambiguity and (or) a lack of clarity into many parts of the pleading, all objections largely flow from the following four paragraphs of the proposed statement of claim.

22.    PFAS has the following properties and environmental effects:

(a)    it is highly stable and resists physical, chemical and biological degradation, persisting in the environment for sustained periods of time;

(b)    it is water soluble and can easily leach, or migrate, from soil to surface water and groundwater;

(c)    it has the potential to leach, or migrate, significant distances including through contaminated surface water and groundwater;

(d)    it is bio-accumulative in that it becomes more concentrated over time and biomagnifies up the food chain; and

(e)    at certain levels, it is toxic (or potentially toxic) to organisms in the environment,

including to humans.

Particulars

i.    PFAS National Environmental Management Plan, version 2.0, January 2020, prepared by the National Chemicals Working Group of the Heads of EPAs, Australia and New Zealand (NEMP 2.0).

[The proposed amendment to which objection is taken are the underlined words in para 22(e).]

…

26.    Perth Airport has had, and continues to have, concentrations of PFAS which are above acceptable levels (in that they pose a material risk to the environment or to humans) (PFAS Contamination) as amplified in paragraphs 27 to 31 below, by reason of the matters pleaded at paragraphs 22 to 25(a) above.

…

32.    By reason of the matters pleaded in paragraphs 12 to 20 and 22 to 31 above, as a result of the release of PFAS-containing [aqueous film forming foam] as pleaded and the spread of PFAS as pleaded, [Airservices (and the Civil Aviation Authority)] have caused and are continuing to cause damage and material injury to:

(a)    the ASA Areas;

(b)    the T1/T2 Areas;

(c)    the Dunreath Drive Area; and (d) other areas within Perth Airport outside of the boundaries of the ASA Areas (other than those identified in (b) and (c) above) which have been contaminated by PFAS released within and/or emanating from the ASA Areas,

(together, the Contaminated Sites).

…

36.    By reason of the matters pleaded in paragraphs 26 to 32 and 34 to 35 above, the PFAS Contamination at Perth Airport has caused, is causing, and is likely to continue to cause, loss and damage to PAPL.

Particulars

i.    The cost of removing the PFAS Contamination from Perth Airport, and otherwise carrying out remediation works, including remediation costs which have already been incurred by PAPL.

ii.    The costs associated with investigating, monitoring, managing and reporting on the nature and extent of the PFAS Contamination at Perth Airport, including in the course of [the applicant] complying with its obligations under the Airports Act and in the course of conducting its day-to-day business.

iii.    Loss as a consequence of delays to the development of Perth Airport due to the PFAS Contamination, including in the form of loss of profits and rental return.

iv.    The additional costs associated with carrying out development works at Perth Airport due to the PFAS Contamination.

v.    The costs of [the applicant] complying with its obligations to yield up the environment of the Airport Site in accordance with cl 6.2 of the Airport Lease.

vi.    Potential exposure to third parties arising out of the migration of PFAS Contamination from within Perth Airport onto land either owned or occupied by a third party (both within and outside of the boundaries of Perth Airport).

vii.    A diminution in the value of the reversionary interests (or some or all of them) held by [the applicant].

viii.    The costs associated with [the applicant] obtaining specialist advice in relation to the PFAS Contamination.

ix.    Further particulars will be provided ahead of trial.

15    Airservices’ defence to para 22(e) (unamended) is in the following terms:

22D.    As to subparagraph 22(e):

(a)    It is admitted that at certain levels PFOS and PFOA are toxic to laboratory animals;

(b)    Limited studies on PFHxS suggest that at certain levels it is toxic to laboratory animals, although it appears to be less potent than PFOS and PFOA;

(c)    It is not known whether other forms of PFAS are toxic to laboratory animals;

(d)    It is not known whether any form of PFAS is toxic to other organisms, including Australian wildlife species;

(e)    As far as the Respondent is aware, there is currently no evidence that any form of PFAS causes a clinically significant impact on human health;

(f)    The subparagraph is otherwise denied.

Airservices pleads that PFOS (perfluorooctane sulfonate) PFOA (perfluorooctanoic acid) and PFHxS (perfluorohexane sulfonic acid) are PFAS in para 15 of its defence. Otherwise, Airservices denies the allegations in paras 26, 32 and 36 of the statement of claim.

16    It follows that it is clear the parties have joined issue on the extent to which PFAS are toxic.

17    Insofar as the allegation that PFAS are toxic ‘at certain levels’ is concerned there is no evident complaint to the effect that ‘certain levels’ is insufficiently clear to provide Airservices with fair notice of the case to be met. Likewise, there is no complaint about the ‘acceptable levels’ to which reference is made in para 26.

18    Taken together, the allegations in para 22 (unamended) and para 26 convey an allegation that the concentrations of PFAS on the Perth airport land are currently at levels that pose a material risk to the environment or humans because, at certain levels of concentration, PFAS are toxic to organisms in the environment including humans. Expressions such as ‘above acceptable levels’ and ‘material risk to the environment or humans’ when used in connection with a toxic substance do not necessarily require that the concentration of the substance has reached a level that is toxic in order for there to be an unacceptable risk of harm to the environment or humans from a lower level of concentration. Relevantly, a substance that is toxic at a certain level has the potential to be toxic at a lower level or to become more concentrated and reach a toxic level. Therefore, within a certain margin of error, a lower concentration level than that at which it is toxic may be unacceptable. However, this aspect of the pleading and this analysis is predicated on the current allegation that at certain levels PFAS are (is) actually toxic not that at certain levels PFAS are (is) potentially toxic.

Proposed new issues

19    The proposed amendment to para 22(e) of the statement of claim introduces the concept that at certain levels PFAS are potentially toxic. That concept is new and reflects an alternative based on a degree of uncertainty about the extent to which PFAS are actually toxic. Depending upon the nature of the uncertainty, or the reasons for it, a substance that has not been demonstrated to scientific certainty to be toxic at a certain level may, nonetheless, pose an unacceptable risk of harm to the environment or humans at that level. Therefore, substances that are not known to be actually toxic may nonetheless pose a material risk of harm to the environment or to humans because they are potentially toxic. Risk by its nature involves probability, chance and a lack of certitude. In short, the case that the applicant wants to run is that contamination of the Perth airport land with PFAS poses an unacceptable risk of harm to the environment or to humans because PFAS are actually toxic or are potentially toxic at certain levels of concentration in the environment.

Does the amendment render the statement of claim evasive, ambiguous, prejudicial or embarrassing?

Applicable principles

20    Although the application is to amend a pleading, leave to amend should be refused if the pleading, as amended, would not conform with the requirements of r 16.02(2)(c) and r 16.02(2)(d) of the Federal Court Rules 2011 (Cth) or would be in a form liable to be struck out, for the same reasons, under r 16.21(1)(c) and r 16.21(1)(d) of the Rules. That is, leave should be refused if the pleading, as amended, would be evasive or ambiguous or be likely to cause prejudice, embarrassment or delay in the proceeding.

21    The principles applicable to applications of this nature are well established and need not be restated at any length. I recently summarised them in Altrad Australia Pty Ltd v Dropulich [2025] FCA 342 in terms that, notwithstanding that certain issues are to be referred to referees in this proceeding, are equally relevant to this application:

7    … The relevant question for the purposes of the applications before me is whether the statement of claim (the pleaded material facts and particulars) meet the basic requirement of stating the applicants’ case with sufficient clarity to allow the respondents a fair opportunity to meet it. The answer to that question is influenced by s 37M of the [Federal Court Act] and an understanding that contemporary case management will involve pre-trial exchanges of witness statements, expert evidence and lists of the documents upon which the parties intend to rely at trial. In these circumstances, the prospect of ‘surprise’ or ‘trial by ambush’ is quite unlikely. As I have previously said, having regard to these matters, the relevant question may be answered at the threshold by asking whether a lawyer looking at the pleading, genuinely interested in knowing what issues are to be tried and the case that has to be met, would have any difficulty in ascertaining those matters: Austin Engineering Ltd v Podulova (No 3) [2024] FCA 1001 at [46]; Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; 33 WAR 82 at [10] (Martin CJ). Nevertheless, well established as they are, having regard to the nature of the objections taken to the statement of claim and the manner in which the arguments were presented, it is useful to elaborate on certain of the relevant principles.

8    As already mentioned, the first and third respondents invoke rr 16.21(1)(c), 16.21(1)(d) and 16.21(1)(e) as grounds for objecting to the statement of claim. As to r 16.21(1)(d), a pleading is likely to cause prejudice or embarrassment if it is susceptible to various meanings, contains inconsistent allegations, includes various alternatives which are confusingly intermixed, contains irrelevant allegations or includes defects which result in it being unintelligible, ambiguous or vague or too general. Such a pleading could equally be characterised as evasive or ambiguous for the purposes of r 16.21(1)(c). As to r 16.21(1)(e), a reasonable cause of action is a cause of action that has some prospects of success having regard to the allegations pleaded. A pleading may be struck out for disclosing no reasonable cause of action if, accepting all material facts pleaded as true and that on all other points (except points of law) the pleading is unassailable, it would not be open to the party upon the pleading to prove facts at trial that would constitute a cause of action. However, a cause of action cannot be struck-out merely on the basis that it appears to be weak. Inevitably there is overlap between the grounds in rr 16.21(c), 16.21(d) and 16.21(e): e.g., Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [25(8)], [25(11)], [25(12)], [25(13)] (Feutrill J) and the authorities there cited.

The respondent’s objections

22    Airservices submits that the concepts of ‘PFAS Contamination’ and ‘Contaminated Sites’ that are integral to the causes of action pleaded for alleged breach of lease (para 63), nuisance and negligence (paras 77, 80, 89, 93), contravention of the Airports Act (para 86) and lease indemnities (para 100) are predicated on the allegation that PFAS are actually toxic at certain levels (para 22(e)). Further, the alleged ‘material risk’ (para 26) is likewise founded on the allegation that PFAS are toxic. In that context, Airservices submits that the allegations relating to the state of knowledge of the Civil Aviation Authority and Airservices to the effect that they knew or ought to have known that the foam products used at the Perth airport land contained ‘hazardous materials that had the potential to ... cause damage to the environment and adversely affect the health and safety of the environment or humans’ (paras 78 and 79) can only be understood as hazards and potential harm founded on the allegation that PFAS are actually toxic. Airservices also submits that the allegation that PFAS are toxic also underpins the allegations of potential harm and potential interference in connection with alleged contraventions of the Airports Act (paras 85 and 86).

23    Against that understanding of the existing pleading, Airservices submits that the introduction of the words ‘or potentially toxic’ (para 22(e)) introduces the new concept of ‘possibility or prospect’ that PFAS are toxic and that is not a feature of the existing pleading. Airservices submits that the notion of possibility of toxicity is inconsistent with the alleged loss or damage (para 36) and alleged property damage (para 32). It submits that it is not tenable to allege that property damage was caused by the introduction of a substance onto the land that is possibly toxic. That, so Airservices submits, creates uncertainty and ambiguity as to what is meant by ‘potentially toxic’ because it cannot mean ‘possibly toxic’.

24    Airservices also submits that the degree of ‘possibility or prospect’ that PFAS are toxic is not pleaded and that renders the meaning of ‘potentially toxic’ and ‘material risk’ evasive or ambiguous. Airservices submits, as a consequence, there is a lack of clarity about the manner in which it is alleged that a ‘possibility or prospect’ that PFAS are toxic could be sufficient to establish:

(a)    a reasonable likelihood of ‘Contamination’ within the meaning of the Training Grounds Lease and the Workshop and Store Lease (paras 55, 60);

(b)    the creation of ‘Environmental Liabilities’ within the meaning of the RU06 Lease (para 62(c));

(c)    ‘pollution’ within the meaning of the Airports Act (paras 84-86);

(d)    reasonable foreseeability of risk of harm relevant to the nuisance and negligence pleas (para 80); and

(e)    loss or damage to the applicant.

25    Airservices submits that the degree of possibility or prospect is an important material fact in a context in which there are allegations that turn on what it allegedly knew or ought to have known about the hazardous nature and potential for harm to the environment and people arising from the use of foam products (para 78 and para 79). It submits these are not facts that can be identified through particulars.

26    Last, in substance, Airservices submits that the applicant should not be permitted to use a vague and ambiguous pleading as the foundation to instruct referees in the hope that the referees reports will identify a case that can be made to fit within the pleading. It submits that the referees must be asked to address questions that arise from the pleaded case and, therefore, the respondent would be prejudiced in the referee referral process if the amendment were permitted.

Consideration

27    The question of whether the proposed further amended statement of claim is evasive, ambiguous or contains inconsistencies is not to be answered by reference to an understanding of the existing pleading, but by reference to an understanding of the proposed pleading, read as a whole, and with a view to genuinely attempting to understand the case that the applicant wants to prosecute. With that orientation, I do not consider that the introduction of the concept of ‘potentially toxic’ creates any real ambiguity or confusion in the applicant’s proposed pleaded case. However, for the reasons already given, I accept that the proposed amendment involves the introduction of a new alternative case.

28    The word ‘potentially’ has an ordinary meaning. I do not consider much is to be gained from analysing dictionary meanings of the word to construe the proposed pleading. The effect of para 22 and para 26 of the proposed pleading is sufficiently clear. The meaning is as I have expressed it earlier in these reasons. The relevant concept is risk and the materiality of the risk posed by PFAS. The nature of the risk may be greater and more material if PFAS are actually toxic, but if PFAS are only potentially toxic there may nonetheless be a material risk of harm. That is so whether potentially is used in the sense of possibility or in the sense of capability or latency.

29    For similar reasons, the introduction of the concept of potential toxicity is not inconsistent with the balance of the pleading. The applicant does not plead a case in negligence that is founded on pure economic loss. As is manifestly clear from paras 22, 26, 32 and 36 of the statement of claim set out earlier in these reasons, the applicant alleges that contamination of the land with PFAS has caused physical damage to the property. To the extent that economic loss is claimed, that is consequential upon the alleged property damage. That claim is unaffected by the introduction of the potential toxicity concept. I do not accept, at least for the purposes of raising a reasonably arguable cause of action, that it is untenable that the introduction of a substance onto land that is potentially (or possibly) and not actually toxic is capable of causing physical damage to that land. It is reasonably arguable that in either case the physical state of the land is altered by the introduction of the substance onto the land. A substance that is actually toxic may require removal from the land or may result in devaluation of the land. Equally, a substance that is potentially (or possibly) toxic may require removal from the land or may result in devaluation of the land. Put another way, introduction of a substance that is potentially toxic onto land may alter the physical state of the land in a manner that is arguably not ‘harmless’.

30    I also do not accept that the concept of ‘potentially toxic’ is meaningless because it does not identify the specific degree of possibility that PFAS are toxic. As already mentioned, para 22 must be read with para 26. The degree of possibility or extent of potentiality is expressed in the concepts of ‘above acceptable levels’ and ‘material risk’. These concepts underpin the expressions ‘PFAS Contamination’ and ‘Contaminated Sites’ used in various parts of the pleading.

31    By way of example, the applicant pleads the following breach of a term of one of the leases:

55.    There are terms of the Training Grounds Lease that:

(a)    where [Perth Airport] can demonstrate that there is a reasonable likelihood of Contamination (meaning the existence of a substance which harms or is likely to harm (whether directly or indirectly) the environment or the health or safety of any person, or a thing which causes or gives rise to an environmental hazard), then [Airservices] must obtain and provide an environmental management plan for the Training Grounds Area by a suitably qualified and experienced person in such detail as [Perth Airport], acting reasonably, may require which will enable [Airservices] to anticipate and deal with (and [Perth Airport] to be made aware of) possible Contamination of the Training Grounds Area, and [Airservices] must carry out all its operations on the Training Grounds Area in accordance with that environmental management plan (cll 2, 43.2); …

…

63.    The PFAS Contamination in the Training Grounds Area as pleaded in paragraphs 26 and 27 above is “Contamination” within the meaning of clause 43 of the Training Grounds Lease by reason of the matters pleaded in paragraph 22 above.

32    The amended case that Airservices would have to meet is that the Perth airport land is contaminated with PFAS above acceptable levels (in that they pose a material risk to the environment or to humans) because, amongst other things, at certain levels PFAS are actually toxic, or at certain levels PFAS are potentially toxic. Further, in either case, that contamination meets the description of a ‘reasonable likelihood of Contamination’ in cl 2 and cl 43.2 of the Training Ground Lease. Similar observations and reasoning apply to the allegations relating to the terms of the other leases, pollution within the meaning of the Airports Act and reasonable foreseeability of harm in connection with the nuisance and negligence allegations. It is not necessary for the applicant to plead a specific degree of possibility of toxicity beyond identifying that it is of such a degree as to result in a material risk of harm. Airservices would have fair notice of the case it has to meet if the proposed amendment were allowed.

33    I also do not consider that the introduction of potential toxicity creates any ambiguity regarding the allegations that the Civil Aviation Authority and Airservices were aware or ought to have been aware that the foam products contained hazardous materials that had the potential to damage the environment and adversely affect the health and safety of the environment or humans (para 78 and para 79). These allegations are directed to states of knowledge during particular periods of time and must involve knowledge generally and specifically about hazardous materials in foam products (including PFAS) in the relevant periods and the extent to which it was known or ought to have been known that PFAS were actually or potentially toxic and posed a material risk of harm in those periods. Again, Airservices would have fair notice of the amended case even though the new alternative case would add an additional element or aspect to the issues relating to Airservices’ and the Civil Aviation Authority’s state of actual or assumed knowledge in the applicable periods.

Disposition

34    There will be an order that the applicant has leave to amend its statement of claim in terms of the minute of further amended statement of claim annexed to the interlocutory application filed on 4 November 2024. The applicant should have the costs of the application for leave and Airservices should have its costs thrown away consequent on the amendment.

Other matters

35    Although the amendment has the appearance of a minor ‘tweak’, for the reasons already given, in point of detail, it will result in Airservices having to meet a substantially expanded case. The levels of concentration at which PFAS are actually toxic or are potentially toxic and at which they pose a material risk of harm are both now squarely raised in the pleading. That has implications not only for evidence about the present understanding of the toxicity of PFAS, but also for evidence about the historical understanding of actual and potential toxicity and the historical states of mind of the Civil Aviation Authority and Airservices that are in issue.

36    The conferral and identification of the issues undertaken in the development of the questions for the referees took place in an environment in which there was no plea that PFAS are potentially toxic. Although the questions for the toxicologist referee include a question about the potential toxicity of PFAS, that question was framed at a time when the case Airservices was to meet only involved ‘material risk’ based on actual toxicity. I do not consider that the potential toxicity of PFAS had been exposed as an issue in the proceeding in the manner in which it is now exposed and identified in the further amended statement of claim. In the circumstances, fairness dictates that the referee referral process should be revisited in light of the amendment to the statement of claim and any issues raised by way of defence to the new issues. Accordingly, orders will be made with a view to resolving any remaining points of difference between the parties regarding that process and to place limits on further changes to the issues and timeframe for completing the referee referral and reporting process.

37    Having regard to these matters, I consider it expedient to set aside the paragraphs of the orders made on 21 November 2024 that addressed the future conduct of the proceeding and make fresh orders in place of those orders with a view to holding a ‘round table’ case management hearing at which orders will be made regarding the steps necessary before a referral to mediation should be made and, otherwise, necessary before determination of all issues in the proceeding. There will be general liberty to apply given that these orders have not been made with regard to the availability of senior counsel who should attend the next case management hearing and without hearing specific submissions on certain aspects of the orders for the future conduct of the proceeding.

Associate:

Dated:    11 April 2025