You are here:
AustLII >>
Databases >>
Supreme Court of New South Wales >>
2023 >>
[2023] NSWSC 274
Database Search
| Name Search
| Recent Decisions
| Noteup
| LawCite
| Download
| Context | No Context | Help
Rove Estate Pty Ltd atf Lane Cove Estate Trust v Chomp Excavations & Demolition Pty Ltd (No 3) [2023] NSWSC 274 (24 March 2023)
Last Updated: 25 March 2023
|
Supreme Court
New South Wales
|
|
Case Name:
|
Rove Estate Pty Ltd atf Lane Cove Estate Trust v Chomp Excavations &
Demolition Pty Ltd (No 3)
|
|
Medium Neutral Citation:
|
|
|
Hearing Date(s):
|
30 August – 3 September, 17 September, 3 December 2021
|
|
Date of Orders:
|
24 March 2023
|
|
Decision Date:
|
24 March 2023
|
|
Jurisdiction:
|
Equity - Commercial List
|
|
Before:
|
Williams J
|
|
Decision:
|
See [294]
|
|
Catchwords:
|
TORT – trespass to land – where several defendants and many
other unidentified persons drove onto the plaintiff’s
land and dumped
waste on the land – whether defendants did so with the consent of the
plaintiff or the person in possession
of the land at the time – whether
person in possession at the time had actual or ostensible authority of the
plaintiff to authorise
defendants to dump waste on the land – where person
in possession was a trespasser – whether the defendants had a licence
supplied by law to dump waste on the plaintiff’s land – whether
defendants contravened Protection of the Environment
Operations Act 1997 (NSW)
by transporting the waste to and dumping it on the plaintiff’s land
– causation and loss –
identification of the harm caused to the
plaintiff by each defendant’s trespass – whether each defendant
severally liable
for the whole of the costs incurred by Rove in cleaning up the
total waste dumped by defendants and many unidentified persons –
whether
plaintiff’s claim an “apportionable claim” and “single
apportionable claim” within the meaning
of s 34 of the Civil Liability Act
2002 (NSW) –where imprecision, but rational basis for assessment of
compensatory damages for harm caused by each defendant’s
trespass –
exemplary damages |
|
Legislation Cited:
|
Civil Liability Act 2002 (NSW) s 34(1)(a), s 34(2), s 34A, s 35Civil
Procedure Act 2005 (NSW) s 14, s 100Environmental Planning and Assessment
Act 1979 (NSW) National Environmental Protection (Assessment of Site
Contamination) Measure 1999 (Cth) sch B2 Protection of the Environment
Operations Act 1997 (NSW) ch 3 pts 3.3-3.8, ch 5, ch 9 pt 9.1, ss 5, 48, 88,
143, 144, 144AAA, sch 1
pt 1 cls 1, 39, 42, 50, sch 1 pt 3 Protection of the
Environment Operations Amendment (Asbestos Waste) Act 2018 (NSW) State
Environmental Planning Policy (Exempt and Complying Development Codes) 2008
(NSW) div 15 pt 2 Uniform Civil Procedure Rules 2005 (NSW) r 2.1
|
|
Cases Cited:
|
|
|
Texts Cited:
|
C Sappideen and P Vines (eds), Fleming’s The Law of Torts (Lawbook
Co, 10th ed, 2011)
D Rolph et al. (eds), Balkin & Davis Law of Torts
(LexisNexis Australia, 6th ed, 2021)
Halsbury’s Laws of Australia
(LexisNexis Butterworths, vol 26, service 569)
M A Jones et al. (eds), Clerk
& Lindsell on Torts (Thomson Reuters, 23rd ed, 2020)
|
|
Category:
|
Principal judgment
|
|
Parties:
|
Rove Estate Pty Ltd atf Lane Cove Estate Trust (Plaintiff)
Chomp
Excavations & Demolition Pty Ltd (First Defendant)
Carlo Excavations Pty
Ltd (Second Defendant)
Haulbuild Pty Ltd (Third Defendant)
Empire
Transport Solutions Pty Ltd (Fourth Defendant)
Mr Ahmad El Kadomi (Fifth
Defendant)
Mr Ahmad Kataieh (Sixth Defendant)
Mr Paul Jones (Seventh
Defendant)
Mr George Abousleiman (Eight Defendant)
Mr Daniel Gawidziel
(Ninth Defendant)
Mr Richard Gawidziel (Tenth Defendant)
|
|
Representation:
|
Counsel:
Mr F Corsaro SC (Plaintiff)
Mr F F F Salama with Mr A Smyth
(First Defendant)
Mr G Smith (Third Defendant)
Mr A Patterson (Solicitor)
(Fifth Defendant)
Mr R Lee (Seventh Defendant)
Mr I Archibald (Eight
Defendant)
Solicitors:
Memcorp Lawyers (Plaintiff)
Mihalatos &
Associates (First Defendant)
McInnes Wilson Lawyers (Third
Defendant)
Edmond Khourey Solicitors (Fifth Defendant)
Vaughn Zarb Lawyers
(Seventh Defendant)
Harrington Lawyers (Eight Defendant)
In
person:
Mr Daniel Gawidziel (Ninth Defendant)
No Appearance
for:
Second, Fourth, Sixth, and
Tenth Defendants
|
|
File Number(s):
|
2019/381976
|
|
Publication Restriction:
|
N/A
|
JUDGMENT
Introduction
- These
proceedings concern alleged trespass and dumping of material on vacant land at 1
Sirius Road, Lane Cove West (the Land) by each of the
defendants on separate occasions over the course of two days on 13 and 14
July 2018. The Land was then owned by the plaintiff, Rove Estate Pty
Limited
(Rove) in its capacity as trustee of the Lane Cove Estate Trust.
- Trucks
entered the Land on 74 occasions on 13 and 14 July 2018 and a survey conducted
in August 2018 identified 209 piles of material
with a total volume of 1,427.3
m3 on the Land. After engaging a soil scientist to undertake a waste
classification of the piles and
ascertaining that some of the piles contained
asbestos waste, Rove engaged one of its related companies to remove and dispose
of
all of the 209 piles during the period from February to July 2019. The
related company subcontracted that work out to various third
parties. Rove
claims to have incurred costs totalling $985,705.31 (including GST) in relation
to the investigation, classification,
and removal of the
waste.[1]
- Rove
sued the owners of nine of the trucks captured on CCTV film driving onto the
Land on 13 and 14 July 2018 for damages for trespass,
including exemplary
damages. The owners of those nine trucks are the first to sixth and eight to
tenth defendants. Rove was unable
to read the registration plates of many other
trucks captured on the CCTV film and was therefore unable to identify the owners
of
those trucks. Rove also sued the seventh defendant who entered onto the Land
with his earthmoving equipment on 14 July 2018 and smoothed
out some of the
piles of material that had been dumped on the Land.
- By
the end of the final hearing, Rove had discontinued its claim against the
seventh defendant (Mr Paul Jones) and had informed the
Court that it did not
press its claim against the fourth defendant (Empire Transport Solutions Pty
Ltd).
- That
left Rove’s claim against the first defendant Chomp Excavation &
Demolition Pty Ltd (Chomp), the second defendant Carlo Excavations Pty
Ltd (Carlo), the third defendant Haulbuild Pty Ltd (Haulbuild),
the fifth defendant Mr Ahmad El Kadomi, the sixth defendant Mr Ahmad Kataieh,
the eighth defendant Mr George Abousleiman, the ninth
defendant Mr Daniel
Gawidziel, and the tenth defendant Mr Richard Gawidziel.
- At
the time of the alleged trespasses by those defendants, the gates at the entry
to the Land were open, and a person stood at or
beyond those gates permitting
and directing the defendants’ trucks to enter the Land and dump the
material contained in their
trucks or trailers on the Land. Mr Jones gave
evidence identifying that person as Mr Anthony Abi Marlu. Mr Abi Marlu was not
known
to the other defendants by name at the time of the events, and their
evidence in these proceedings generally refers to him as the
gatekeeper.
- Rove
pleads that the dumped material was waste, and that the defendants’
conduct in transporting the material to the Land and
dumping it there
contravened the Protection of the Environment Operations Act 1997 (NSW)
(POEO Act). Rove alleges that much of the dumped material contained
asbestos. Rove’s submissions characterised the defendants’
alleged
trespasses as intentional or, alternatively, as reckless or negligent.
- Rove’s
primary case is that each of the acts of trespass allegedly committed by the
defendants referred to at [5] above materially contributed to the need for Rove to
undertake the work of removing and disposing of the 209 piles, and that those
defendants are therefore severally liable for the whole of the costs that Rove
claims to have incurred by undertaking all of that
work. Alternatively, Rove
contends that each defendant must bear its proportionate liability for the whole
of those total costs.
- Each
of Chomp, Haulbuild, Mr El Kadomi and Mr Abousleiman admits that trucks owned
and/or operated by them entered onto the Land and
deposited material on the Land
on one or more occasions on 13 and/or 14 July 2018. Chomp and Haulbuild say that
they deposited only
virgin excavated natural material (VENM) which did
not contain asbestos. Mr El Kadomi and Mr Abousleiman say that the material they
dumped did not contain asbestos.
- Each
of Chomp, Haulbuild, Mr El Kadomi and Mr Abousleiman claims to have entered onto
the Land and dumped that material on the Land
with the consent of the owner of
the Land and/or the person in possession of the Land at the time of those
entries. Alternatively,
they claim to have done so pursuant to an implied
licence that permitted them to enter and dump the material on the Land in return
for payment of the fee stipulated by the gatekeeper and on the condition that
they would follow the directions given to them by the
personnel who were
directing and controlling the movement of trucks and the dumping of material on
the Land.
- Each
of Chomp, Haulbuild, Mr El Kadomi and Mr Abousleiman contends that, if they
trespassed on the Land (which is denied), then each
of them is only liable in
respect of any harm that their own actions may have caused to Rove, and that
they are not severally liable
for the whole of the costs incurred by Rove in
removing and disposing of the 209 piles of material dumped by the defendants and
other
third parties.
- In
the alternative, each of Chomp, Haulbuild and Mr Abousleiman pleads that, if
Rove’s claim is a single apportionable claim
within the meaning of s 34 of
the Civil Liability Act 2002 (NSW), then each of the other defendants,
any other person who deposited waste on the Land, and the gatekeeper who was in
possession
and control of the Land at the time of the alleged trespass, are
concurrent wrongdoers, and the loss allegedly suffered by Rove was
caused by
those concurrent wrongdoers. Further, each of Chomp, Haulbuild and Mr
Abousleiman contend that the gatekeeper was a rogue
who unlawfully or
fraudulently granted them access to the Land and that he should bear the most
significant proportion of liability,
if Rove’s loss is a single
apportionable claim.
- Mr
Daniel Gawidziel represented himself at the final hearing. He admits that one of
his driver subcontractors dumped material on the
Land on 13 July 2018 but says
that he believed at the time that this had been authorised by the owner of the
Land. He denies that
the material dumped by his driver subcontractor contained
asbestos.
- The
remaining defendants – Carlo, Mr Kataieh and Mr Richard Gawidziel –
did not defend the proceedings and Rove sought
default judgment against
them.
- I
will refer to Mr Richard Gawidziel by his full name to avoid confusion with Mr
Daniel Gawidziel. All references to Mr Gawidziel
are references to Mr Daniel
Gawidziel, although I will also refer to him by his full name on occasion.
- For
the reasons that follow, each of Chomp, Haulbuild, Mr El Kadomi, Mr George
Abousleiman and Mr Daniel Gawidziel trespassed on the
land when they drove onto
the Land and dumped material there. Each of those defendants is liable to pay
compensatory damages to Rove
for the loss caused by that defendants’
trespass. None of the defendants are liable for the whole of Rove’s
remediation
costs. Chomp and Mr George Abousleiman are also liable for exemplary
damages. Rove is entitled to default judgment against Mr Carlo,
Mr Ahmed Kataieh
and Mr Richard Gawidziel for nominal damages only because the evidence adduced
by Rove did not enable the Court
to assess compensatory damages for the loss
caused by each of those defendants. I have considered the substance of all of
the parties’
written and oral submissions in coming to those conclusions
and in formulating my reasons for those conclusions.
The tort of
trespass to land
- A
person who enters onto, or causes some physical matter to come into contact
with, the land of another, commits a trespass unless
they can show that they had
the consent of the occupier or other lawful authority or justification: Kuru
v State of New South Wales (2008) 236 CLR 1; (2008) 82 ALJR 1021; (2008) 246
ALR 260; [2008] HCA 26 (Kuru) at [43] (Gleeson CJ, Gummow, Kirby
and Hayne JJ) and the authorities there referred to.
- As
Gageler J explained in Smethurst v Commissioner of the Australian Federal
Police (2020) 272 CLR 177; (2020) 94 ALJR 502; (2020) 376 ALR 575; (2020)
280 A Crim R 356; [2020] HCA 14 (Smethurst) at [120]
(references omitted):
“The gist of a common law cause of action for trespass, whether to land or
to goods, is ‘the wrong to the right to possession’.
At the heart of
the common law right to possession is the common law right to control access by
others and thereby to exclude others
from access. In protecting the right to
possession, the policy of the common law is to protect the right to exclude
others which
is bound up in possession.”
- The
authorities cited by his Honour in the passage immediately above include the
statement by Gaudron and McHugh JJ in Plenty v Dillon (1991) 171 CLR 635;
(1991) 65 ALJR 231; (1991) 98 ALR 353; [1991] HCA 5 (Plenty v
Dillon) (at 171 CLR 654-655) that:
“[T]he purpose of an action for trespass to land is not merely to
compensate the plaintiff for damage to the land. That action
also serves the
purpose of vindicating the plaintiff's right to the exclusive use and occupation
or his or her land."
- It
was submitted by Rove and the legally represented defendants in these
proceedings that trespass may be either intentional or negligent.
There is some
authority to support the proposition that trespass may be actionable if it the
defendant entered the land involuntarily
but with negligence: Nickells v
Mayor, Alderman, Councillors and Citizens of the City of Melbourne (1938) 59
CLR 219; (1938) 11 ALJ 568; [1938] ALR 154; [1938] HCA 14 (at 59 CLR 225-226 per
Dixon J, as his Honour then was); League Against Cruel Sports v Scott
[1986] QB 240; 2 All ER 489 (League v Scott);
Barker v The Queen (1983) 153 CLR 338; (1983) 57 ALJR 426; (1983)
47 ALR 1; [1983] HCA 18 (Barker) (at 153 CLR 356-357 per Brennan
J, as his Honour then was, and Deane J). Several learned texts also support that
proposition: Halsbury’s Laws of Australia (LexisNexis Butterworths,
vol 26, service 569) at [415-480]; D Rolph et al. (eds), Balkin & Davis
Law of Torts (LexisNexis Australia, 6th ed, 2021) [5.10] (citing League v
Scott). In Ucak v Avante Developments [2007] NSWSC 367, Hammerschlag
J (as the Chief Judge in Equity then was) referred at [27] to the question of
whether negligence may be an element
of the tort of trespass to land in certain
circumstances as “complex and unsettled”. His Honour did not
need to decide the question in that case, which involved a strike out
application. The parties have not referred
me to any subsequent Australian
authority that determines the question. I need not determine it in the present
case because the evidence
referred to later in these reasons clearly establishes
that each defendant’s acts in entering and dumping material on the Land
were intentional. The element of intention (or negligence, if applicable) is
directed to the act of the defendant in entering onto
the plaintiff’s
land, and not to questions of whether the entry was authorised: Conway v
George Wimpey & Co [1951] 2 KB 266; [1951] 1 All ER 363, at 2 KB 273;
League v Scott; Barker at 470 (Dawson J); Balkin & Davis
Law of Torts, supra, at [5.10]; C Sappideen and P Vines (eds),
Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) at [5.20].
- The
question whether an occupier of land has expressly or impliedly granted
permission to an alleged trespasser is essentially a question
of fact:
Halliday v Nevill (1984) 155 CLR 1; (1984) 59 ALJR 124; (1984) 57 ALR
331; 13 A Crim R 250; [1984] HCA 80, at 155 CLR 6 (Gibbs CJ, Mason, Wilson and
Deane JJ). There are some circumstances in which the law will imply a licence to
enter land for certain lawful
purposes, unless there is something additional in
the objective facts negating the implied licence or indicating that it was
revoked:
Halliday v Nevill, at 155 CLR 7 (Gibbs CJ, Mason, Wilson and
Deane JJ); Roy v O’Neill, (2020) 272 CLR 291; (2020) 95 ALJR 64;
(2020) 385 ALR 187; (2020) 285 A Crim R 120; [2020] HCA 45 (Roy v
O’Neill) at [11]-[13] (Kiefel CJ) and [66]-[67] (Keane and Edelman
JJ).
- A
defendant will only be liable in trespass if they are present at and have taken
part in the trespass, or if they have authorised
or instigated others to commit
the trespass: Balkin & Davis Law of Torts at [5.10].
- Rove’s
submissions proceeded on the basis that, in order to establish trespass, it was
necessary to show that the defendants
acted intentionally, recklessly, or
negligently, not only in entering onto the Land and dumping the material carried
in their trucks
on the Land, but also in contravening or failing to take
reasonable steps to comply with the provisions of the POEO Act concerning
the
transport, storage and disposal of
waste.[2] Rove pleaded that the
defendants knew, or ought to have known, that their conduct in entering onto the
Land and dumping their material
on the Land was in breach of s 143 of the POEO
Act, which makes it an offence to transport waste to a facility that cannot
lawfully
be used as a waste facility for that waste.
- I
accept that the question whether the defendants’ conduct contravened the
POEO Act is relevant to Rove’s claim for trespass
in the present case
because some of the defendants contend that they were authorised to enter and
deposit their material on the Land
by, inter alia, an implied
licence.[3] If it be established that
it was an offence under s 143 of the POEO Act for the defendants to transport
their material to the Land
and deposit it there, that is one reason why the law
would not imply a licence for them to enter the Land for that purpose.
- I
also accept that, if the alleged trespasses are established, then the provisions
of the POEO Act that applied to the transport,
storage and disposal of waste at
that time will be relevant to Rove’s claim for exemplary damages. That
legislative regime
will have some bearing on the question whether the defendants
should be found to have acted “in contumelious disregard” of
Rove’s rights: Sydney Local Health District v Macquarie International
Health Clinic Pty Ltd (2020) 105 NSWLR 325; [2020] NSWCA 274 (SLHD v
Macquarie) at [78] and the authorities there referred to. The matters on
which Rove relies in support of its claim for exemplary damages include
that
each defendant’s conduct allegedly involved “illegal dumping of
contaminated material and unwanted waste material” on the
Land.[4]
- I
do not consider that any contravention of the POEO Act (whether intentional,
reckless, or negligent) is otherwise relevant to Rove’s
causes of action
for trespass to land. Rove sues the defendants in trespass only. Rove does not
rely on the alleged breaches of s
143 of the POEO Act as giving rise to any
additional cause of action. These proceedings are not proceedings for an offence
under
s 143.
- Chomp
submitted that it was necessary for Rove to establish that the defendants
intended to cause loss to Rove, or that Rove was reckless
or negligent as to
whether or not loss would be caused, by the defendants entering and depositing
their material on the Land.[5]
- I
reject that submission as fundamentally inconsistent with the fact that loss is
not an element of the tort of trespass to land.
As the Court of Appeal explained
in SLHD v Macquarie at [73]-[75]:
“[73] The tort of trespass is an unusual one
which exists ‘though the damage be
nothing’: see Entick v Carrington (1765) 19 St Tr
1029 at 1066 per Lord Camden LCJ, cited by Brennan J in Halliday v
Nevill [1984] HCA 80; (1984) 155 CLR 1 at 10; [1984] HCA 80. Trespass
to land is actionable per se (see Port
Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA
353; (2004) 135 LGERA 98 at
[190] (Tellamist)) and ‘so nominal damages are
awarded as a recognition of the infraction of the plaintiff’s possessory
right’:
see Mayfair Ltd v Pears [1986] NZCA 476; [1987] 1 NZLR 459 at
465.
[74] That is not to say, however,
that substantial damages may not be awarded for the tort. They
may fall into different categories,
as Santow JA explained
in Tellamist at [193]-[200], being (a) cases where there
is a benefit to the defendant without actual loss to the plaintiff;
(b) where the benefit
to the defendant correlates to the actual loss to
the plaintiff; and (c) where the trespass involves loss to the plaintiff
and no
correlative gain by the defendant. To these three
categories may arguably be added a fourth, namely where there is
no benefit to
the defendant and no actual loss to the plaintiff. In such a
case, only nominal damages would lie. As will be seen, this may be the
position
where a trespasser has made no actual use of the land whilst in
unauthorised possession of it.
[75] There is no doubt that damages awarded for the tort of
trespass may be
awarded in a conventional manner consistent with the
cardinal compensatory
nature of damages in tort. Thus, it is open to a plaintiff upon whose land
a defendant has trespassed to seek
damages which would put that plaintiff in the
same position it would have been had the tort not been committed or, to use
the language
of Hoffmann LJ (as his Lordship then was), to recover
the ‘loss which he has suffered in consequence of the
defendant’s
trespass’: see Ministry of Defence v
Ashman (1993) 25 HLR 513 at 519.”
- In
cases such as the present where the plaintiff claims substantial damages of the
kind described as category (c) in SLHD v Macquarie at [74], damages can
be recovered for harm that was the natural and probable consequence of the
trespass, or harm that was intended:
TCN Channel Nine Pty Ltd v Anning
(2002) 54 NSWLR 333; [2002] Aust Torts Reports 81-649; [2002] NSWCA 82
(TCN v Anning) at [100] (Spigelman CJ, Mason P and Grove J
agreeing).
- The
other authorities cited by the parties concerning intention or negligence as an
element of the tort of trespass to land and other
property were directed to the
intentional or negligent character of the defendant’s unauthorised entry
onto or interference
with the plaintiff’s land or property, and not to
intention or negligence in causing loss to the
plaintiff.[6]
- I
note for completeness that the parties also cited two cases involving claims for
damages for personal injury arising from alleged
negligence or trespass to the
person. Neither of those cases support the proposition that intentional or
negligent infliction of
injury (as opposed to an intentional or negligent act,
which directly or indirectly causes injury) is an element of an action for
trespass to the person.[7] On the
contrary, it is well established that an intention to injure the plaintiff is
not an element of the tort of assault or battery.
What must be intended is the
act itself.[8] Nor do the personal
injury cases cited by the parties stand for any other proposition that is
capable of being extrapolated to support
Chomp’s submission in the present
case involving trespass to land.
- However,
I accept that, if the defendants are found to have committed the alleged
trespasses in the present case, and if Rove’s
claim is a single
“apportionable claim” within the meaning of s 34(1)(a) and
the defendants are held to be concurrent wrongdoers within the meaning of s
34(2) of the Civil Liability Act, then the question whether the
defendants intended to cause loss to Rove will become relevant by reason of s
34A of the Civil Liability Act.
The legislative regime for
the transport, storage and disposal of waste
- Although
Rove sues for trespass to land only, its pleaded cause of action in trespass
included an allegation that each of the defendants
had breached ss 143 and
144AAA of the POEO Act. Section 144AAA is irrelevant because it was introduced
into the POEO Act by amending
legislation that commenced after the date of the
alleged trespasses on 13 and 14 July
2018.[9] Section 143(1) provides that
a person who transports waste, or causes or permits waste to be transported, to
a place that cannot
lawfully be used as a waste facility for that waste, is
guilty of an offence. Rove does not contend that it has any statutory cause
of
action for damages for the alleged contravention of s 143 and these proceedings
are not proceedings for an offence under that
section. However, as I have
explained above, the provisions of the POEO Act concerning the transport and
disposal of waste are potentially
relevant to the pleaded defences that the
defendants entered and deposited their material on the Land pursuant to an
implied licence
and, if trespass is proved, to Rove’s claim for exemplary
damages.
- The
salient provisions of the POEO Act that applied as at 13 and 14 July 2018 may be
summarised as follows.
- Chapter
3 of the POEO Act provided for the issue of environment protection licences
authorising specified activities are that listed
in Schedule 1 of the POEO Act
(defined in s 5 as “scheduled activities”).
- Section
48 in Part 3.2 of Chapter 3 of the POEO Act provided:
“(1) Application of section This section applies
to scheduled activities where Schedule 1 indicates that a licence is required
for premises at which the activity
is carried on.
(2) Offence A person who is the occupier of any premises
at which any such scheduled activity is carried on is guilty of an offence,
unless the
person is, at the time that activity is carried on, the holder of a
licence that authorises that activity to be carried on at those
premises.
Maximum penalty:
(a) in the case of a corporation—$1,000,000 and, in the
case of a continuing offence, a further penalty of $120,000 for each
day the
offence continues; or
(b) in the case of an individual—$250,000 and, in the
case of a continuing offence, a further penalty of $60,000 for each
day the
offence continues.”
- Clause
1 of Part 1 of Schedule 1 to the POEO Act relevantly provided:
“(1) For the purposes of section 48, any activity that is
declared by this Part to be a scheduled activity is taken to be
an activity for
which a licence is required for the premises at which it is carried out (the
activity is premises-based).”
- The
activities declared by Part 1 of Schedule 1 to be scheduled activities included
“waste disposal by application to land” and “waste
storage” as defined in clauses 39 and 42 (respectively).
- Before
turning to the provisions of clauses 39 and 42 of Part 1 of Schedule 1, it is
convenient to note that the POEO Act defines
“waste” as
including:
“(a) any substance (whether solid, liquid or
gaseous) that is discharged, emitted or deposited in the environment in such
volume, constituency or manner as to cause an alteration in the environment,
or
(b) any discarded, rejected, unwanted, surplus or abandoned
substance, or
(c) any otherwise discarded, rejected, unwanted, surplus
or abandoned substance intended for sale or for recycling, processing,
recovery
or purification by a separate operation from that which produced the substance,
or
(d) any processed, recycled, re-used or recovered
substance produced wholly or partly from waste that is applied to land, or used
as fuel, but only in the circumstances prescribed by the regulations, or
(e) any substance prescribed by the regulations to be
waste.”
- The
term “substance” is broadly defined as including
“matter or thing”.
- A
“substance” is “waste” if it falls within
any one or more of paragraphs (a) to (e) of the definition of
“waste” set out above. Indeed, the definition is inclusive,
such that a substance may be “waste” even if it does not fall
within one of those paragraphs: Environment Protection Authority v Grafil Pty
Ltd (2019) 101 NSWLR 245; (2019) 238 LGERA 147; [2019] NSWCCA 174 (EPA
v Grafil) at [99], [115]-[132] (Preston CJ of LEC, Davies
and Adamson JJ agreeing).
- Part
3 of Schedule 1 of the POEO Act contained definitions of various types of waste,
including:
(1) “general solid waste (non-putrescible)”,
which included:
(a) “virgin excavated natural material”,
which was in turn defined as:
“... natural material (such as clay, gravel, sand, soil or rock
fines):
(a) that has been excavated or quarried from areas that are not
contaminated with manufactured chemicals, or with process residues,
as a result
of industrial, commercial, mining or agricultural activities; and
(b) that does not contain any sulfidic ores or soils or any
other waste,’
and includes excavated natural material that meets such criteria for virgin
excavated natural material as may be approved for the
time being pursuant to an
EPA Gazettal notice.”
(b) “building and demolition waste”, which
was relevantly defined as unsegregated material not containing asbestos waste or
liquid waste that resulted from the demolition,
erection, construction,
refurbishment or alternation of buildings, but excluding excavated soil; and
(2) “special waste”, including
“asbestos waste” which was defined as “any waste
that contains asbestos”.
- Waste
falls within the definition of “asbestos waste” if it
includes any asbestos, irrespective of the quantity of the asbestos or its
relative proportion to the total volume of the waste:
EPA v Grafil at
[325]-[329].
- Clause
39 of Part 1 of Schedule 1 to the POEO Act relevantly provided:
“(1) This clause applies to waste disposal by
application to land, meaning the application to land of waste received
from off site, including (but not limited to) application by any of the
following
methods:
(a) spraying, spreading or depositing on the land,
(b) ploughing, injecting or mixing into the land,
(c) filling, raising, reclaiming or contouring the land.
(2) However, this clause does not apply to an activity that
involves any of the following:
(a) sites inside the regulated area that, over any period of
time, receive from off site a total of no more than 200 tonnes of
the following
waste (and no other waste):
(i) building and demolition waste only,
(ii) building and demolition waste mixed with virgin excavated
natural material,
(b) ...
(c) ...
(d) ...
(e) sites where only virgin excavated natural material is
received from off site and applied to the land,
(f) ...
(3) The activity to which this clause applies is declared to by
a scheduled activity.
(4) ...”
- Clause
42 of Part 1 of Schedule 1 to the POEO Act relevantly provided:
“(1) This clause applies to waste storage,
meaning the receiving from off site and storing (including storage for transfer)
of waste.
(2) ...
(2A) ...
(2B) This clause also does not apply to the receiving of virgin
excavated natural material from off site and its storage if the
only waste
received is virgin excavated natural material.
(3) The activity to which this clause applies is declared to be
a scheduled activity if:
(a) more than 5 tonnes of hazardous waste, restricted solid
waste, liquid waste or special waste (other than waste tyres) is stored
on the
premises at any time;
(b) more than 5 tonnes of waste tyres or 500 waste tyres is
stored on the premises at any time (other than in or on a vehicle used
to
transport the tyres to or from the premises), or
(c) more than the following amounts of waste (other than waste
referred to in paragraph (a) or (b)) are stored on the premises
at any time:
(i) in the case of premises in the regulated area—more
than 1,000 tonnes or 1,000 cubic metres,
(ii) ...or
(d) more than the following amounts of waste (other than waste
referred to in paragraph (a) or (b)) is received per year from off
site:
(i) in the case of premises in the regulated area—6,000
tonnes,
(ii) ...
(4) ...”
- The
Land is in the “regulated area” referred to in clauses
39(2)(a) and 42(3)(c) and (d) of Part 1 of Schedule 1 to the POEO
Act.[10]
- Storage
in clause 42 does not require any particular duration or degree of permanence
and includes temporary storage: EPA v Grafil at [188]-[193].
- An
activity may fall within more than one of the activities declared by Part 1 of
Schedule 1 to the POEO Act to be a scheduled activity.
The stockpiling and
spreading on land of waste received from off site may be a scheduled activity by
reason of clause 39 and also
by reason of clause 42 of Part 1 of Schedule 1:
EPA v Grafil at [194]. It is the carrying on of any scheduled activity
on land, in circumstances where the occupier does not hold a licence authorising
the scheduled activity to be carried on at that land, that constitutes an
offence by the occupier under s 48(2) of the POEO Act.
- Parts
3.3 to 3.8 of the POEO Act provided for the issue of licences by the Environment
Protection Authority (EPA), the conditions that may be attached to such
licences and the duration, review, suspension, revocation and surrender of such
licences.
- Chapter
5 of the POEO Act created certain offences, including ss 143 and 144.
- Section
143 relevantly provided:
“(1) Offence If a person transports waste to a
place that cannot lawfully be used as a waste facility for that waste, or causes
or permits waste
to be so transported:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.
Maximum penalty:
(a) in the case of a corporation—$1,000,000, or
(b) in the case of an individual—$250,000.
(2) Proof of lawfulness In any proceedings for an
offence under this section the defendant bears the onus of proving that the
place to which the waste was
transported can lawfully be used as a waste
facility for that waste.
(3) ...
(3A) Defence—approved notice It is a defence in
any proceedings for an offence under this section if the defendant establishes
that:
(a) an approved notice was, at the time of the alleged offence,
given to the defendant by the owner or occupier of the place to
which the waste
was transported or was displayed at the place, and
(b) the approved notice stated that the place could lawfully be
used as a waste facility for the waste, and
(c) the defendant had no reason to believe that the place could
not lawfully be used as a waste facility for the waste.
(3B) However, it is not a defence in such proceedings for the
defendant to establish that the defendant relied on the advice (other
than
advice in the form of an approved notice) given by the owner or occupier
concerned to the effect that the place could, at the
time of the alleged
offence, be lawfully used as such a waste facility.
(3C) Defence—waste not deposited It is a defence
in any proceedings for an offence under this section if the defendant
establishes that the waste transported by the
defendant was not deposited by the
defendant or any other person at the place to which it was transported.”
- The
POEO Act defined “waste facility” as meaning:
“Any premises used for the storage, treatment, processing, sorting or
disposal of waste (except as provided by the regulations).”
- If
the storage, treatment, processing, sorting or disposal of the transported waste
at the premises is a scheduled activity, and the
occupier of the premises does
not hold a licence issued under Chapter 3 of the POEO Act authorising that
activity to be carried on
at the premises and no exemption issued under the POEO
Act applies to that activity at those
premises,[11] that is one reason why
the premises cannot lawfully be used as a waste facility for the transported
waste. If it is not a scheduled
activity, or if the occupier of the premises
does hold a licence authorising the scheduled activity or a relevant exemption,
other
factors may be relevant to the question whether the premises can lawfully
be used as a waste facility for the transported waste.
Those factors include
whether any development consent required for that use of the premises has been
issued by the appropriate authority:
EPA v Grafil at [336].
- Section
143(4) of the POEO Act defined “approved notice” as meaning a
notice in a form approved by the EPA stating that the place specified in the
notice can lawfully be used as a waste facility
for the waste specified in the
notice and containing a certification by the owner or occupier of the place that
the statement is
correct.
- Section
144 of the POEO Act relevantly provided:
“(1) A person who is the owner or occupier of any place
and who uses the place, or causes or permits the place to be used,
as a waste
facility without lawful authority is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation—$1,000,000 and, in the
case of a continuing offence, a further penalty of $120,000 for each
day the
offence continues, or
(b) in the case of an individual—$250,000 and, in the
case of a continuing offence, a further penalty of $60,000 for each
day the
offence continues.”
- It
is not an element of an offence under s 144 that the use of the land, in
accordance with planning law concepts, was for the purpose
of a waste facility.
It suffices that, in the circumstances giving rise to the alleged evidence, the
land was in fact used as a waste
facility: EPA v Grafil at [145].
- The
element of “without lawful authority” includes not only the
absence of a licence issued under Chapter 3 of the POEO Act, but also not
obtaining any development consent
required for the operation of the waste
facility under the Environmental Planning and Assessment Act 1979 (NSW):
EPA v Grafil at [336].
The Land
- The
Land is a vacant site of approximately 3.957 hectares.
- Documents
reviewed by expert witnesses in these proceedings indicate that approximately
12,000m3 of heavy metal and asbestos contamination
on the northern part of the
Land was contained by capping prior to 2000.
- The
Land was acquired by West Apartments Pty Ltd in 2004. It was proposed that a
13-lot subdivision would be undertaken by Demian
Developments Pty Ltd. Mr
Charbel Demian was a director of West Apartments Pty Ltd and was also associated
with Demian Developments
Pty Ltd.
- In
July 2006, an environmental site assessment commissioned by Demian Developments
Pty Ltd concluded that there was some localised
areas of lead and asbestos
contamination on the Land, and recommended the following ‘simple
remedial and management activities”:
“The south and western parts of the site which are covered by dark brown
grey, sandy fill with FCS fragments and (amosite)
asbestos fibres, should be
remediated by surficial excavation and off-site disposal of the materials to a
landfill facility licensed
with the DEC to accept Asbestos Contaminated
(Solid) Waste. Hand-picking of FCS fragments should be conducted wherever
possible, to minimise the extent of soil excavation and thus reduce waste
disposal costs.
Waste scrap metal, large FCS fragments and general building wastes should be
collected, as part of a general surface clean-up, and
disposed at appropriate
DEC-licensed waste facilities.”
- Mr
Demian gave evidence that this recommended remediation work was not carried out
and that no other remediation work involving asbestos
removal was undertaken on
the Land in the period from 2006 to 2018.
- Rove
acquired the Land in October 2012. Mr Demian has been the sole director of Rove
since 29 June 2017.
- Mr
Demian gave evidence that the Land had a fence around the whole of its boundary
and that the vehicular entry gates were padlocked.
There was only one key to the
padlock, which was kept in the key cabinet in Mr Demian’s office. The key
was provided to employees
of Rove and Linx Constructions Pty Ltd (Linx)
from time to time for the purposes of inspecting the Land or supervising or
managing work being carried out on the Land by contractors.
Linx was a related
company of Rove. Mr Demian arranged for employees of Linx to inspect the Land
approximately fortnightly to monthly.
When the key was given to an employee of
Rove or Linx for the purpose of inspection or supervision and management of
third party
contractor works, Mr Demian was aware who had the key. Work carried
out by third party contractors principally involved the maintenance
work that is
described in more detail below. The key was never provided to those third party
contractors or their employees.
- In
about late 2016, Mr Demian arranged for four concrete barriers, each about 3.5
metres wide and weighing two tonnes, to be placed
inside the vehicular entrance
gate to the Land. The barriers were placed in pairs 15 metres and 30 metres
behind that gate and could
only be moved using heavy machinery or a crane. The
concrete barriers are clearly visible in aerial photographs of the entrance
gates
to the Land taken on 4 November 2016 and 15 April 2018 and are placed so
that each set of two barriers covers the entire width of
the access road from
the entrance gates into the Land. A further aerial photograph was taken on and 5
May 2018 in which neither the
entrance gate nor the first set of concrete
barriers inside the gate are clearly visible. The location of the entrance gate
and the
location where the first set of barriers had been visible in the earlier
photographs are heavily shadowed by the surrounding trees
in that photograph.
The second set of concrete barriers is clearly visible in the 5 May 2018
photograph. Contrary to the proposition
put to Mr Demian in cross-examination,
the photograph depicts the two barriers in that second set remaining in their
previous position
covering the width of the access road, albeit the boundary of
the access road is less clearly delineated than in the previous photographs
due
to vegetation growth.
- In
cross-examination, Mr Demian denied that the concrete barriers had been
installed in response to persons gaining unauthorised access
to the Land. Mr
Demian gave evidence to the effect that the barriers were installed as an
additional precautionary security measure
against illegal dumping, which he
described as a problem “all over Sydney”.
- Mr
Demian gave evidence that he is familiar with the Land, having walked around it
many times, and that Rove did not use the Land
as a dumping site or have the
Land filled. Mr Demian also gave evidence that he did not see any piles of waste
or other material
on the Land at any time prior to 13 July 2018. According to Mr
Demian, the only work undertaken on the Land after Rove acquired it
in October
2012 was annual maintenance work that included stabilisation and sedimentation
controls and removal of shrubs and weeds.
- It
was submitted on behalf of Chomp that Mr Demian’s denial that Rove had
used the Land as a dumping site and had not had the
Land filled was not
credible, because the July 2006 report referred to at [61] above had identified
the presence of fibrous cement sheeting fragments, building waste, and scrap
metal on the Land, and had identified
asbestos as a contaminant of concern.
- I
reject that submission. The July 2006 report was not admitted as evidence of the
truth of its contents. Even if the report had been
tendered without any
limitation, the evidence would not support Chomp’s contention that the
reported matters referred to immediately
above were attributable to the use of
the Land by Rove, West Apartments Pty Ltd, or Demian Developments Pty Ltd. The
report described
a history of contamination of the Land beginning before 1995,
almost a decade before West Apartments Pty Ltd purchased the Land in
2004. It
was not put to Mr Demian in cross-examination that West Apartments Pty Ltd or
Demian Developments Pty Ltd were responsible
for any of the matters described in
the report. Rove did not acquire the Land until six years after the report was
published.
- Chomp
also submitted that Mr Demian’s denial of having seen any piles or waste
on the Land prior to 13 July 2018 was not credible
because he conceded in
cross-examination that an aerial photograph of the Land taken on 15 June 2010,
whilst difficult to interpret,
appeared to show a pile of burnt trees in an area
that appeared to have recently been cleared of vegetation.
- I
reject that submission. The aerial photograph had been taken from a considerable
height above the Land and was indeed difficult
to decipher. Mr Demian
nevertheless cooperated with the cross-examiner’s questions that required
him to interpret the photograph.
Contrary to Chomp’s submission, Mr
Demian’s identification of what appeared to be a pile of burnt trees is
not inconsistent
with his evidence that he did not see piles of waste on the
Land prior to 13 July 2018. It was not put to Mr Demian that he saw the
pile
that he identified in the 15 June 2010 photograph at any time when he inspected
or attended the Land prior to the events giving
rise to these proceedings.
- Similar
submissions made by Chomp by reference to other photographs and evidence
concerning the clearance of vegetation during annual
maintenance of the Land in
the years prior to 2018 were misconceived for the same reason, and because there
is no evidence to suggest
that any piles of cleared vegetation generated by
those processes remained on the Land for any period of time.
- Annual
maintenance work carried out during May and June 2018 included clearing
vegetation from a large section of the Land in anticipation
of the campaign that
Rove was about to embark on to sell the Land. A Linx project manager used the
key to the locked entrance gates
to facilitate the maintenance
contractor’s access to the Land during this period.
- Mr
Demian gave evidence in cross-examination that he inspected the Land on several
occasions leading up to 4 June 2018, which that
was the last time that he
personally inspected or attended the Land before being informed on 16 July 2018
that material appeared
to have been dumped on the Land. Mr Demian gave evidence
that he did not see piles of waste on the Land during his inspections in
the
period up to 4 June 2018.
- Mr
Demian was cross-examined at some length about the extent to which the 2018
maintenance work involved excavation of soil and other
material from the Land.
Mr Demian was shown several photographs of the Land taken on 31 May 2018 and
asked questions about the extent
to which the earth had been disturbed or
excavated during the work and whether any excavated material had been stockpiled
on site.
Mr Demian accepted that the photographs showed some disturbance of the
soil and, in two instances, some relatively small areas of
excavation which he
attributed to the removal of shrubs. Mr Demian did not accept that any material
so excavated had been stockpiled
on site. To my eye, the photographs did not
depict any stockpiling of material. As I understood it, the object of those
questions
and the criticisms made in the defendants’ submissions about Mr
Demian’s answers was to support a contention that some
of the 209 piles
discovered on the Land on 16 July 2018 might have been excavated from the Land
by Rove or its maintenance contractor,
rather than deposited on the Land by the
defendants or other third parties on 13 and 14 July 2018. The evidence does not
support
that contention. As referred to in more detail at [131]-[136] below, the expert
evidence establishes that the 209 piles discovered on 16 July 2018 included many
piles with a dominant soil type
that could not have been excavated from the
Land. Those piles were interspersed throughout the 209 piles in a manner that
renders
it improbable that some of the piles were excavated from the Land.
- On
about 12 June 2018, Rove engaged CBRE Pty Ltd (CBRE) and Savills NSW Pty
Ltd (Savills) as its agents for the marketing and sale of the Land. Mr
Demian gave evidence that CBRE and Savills would have arranged for prospective
purchasers to inspect the Land during the period leading up to 13 July 2018. Mr
Amadeo Banzato, who was employed by Rove or by Mr
Demian, was responsible for
liaising with the sales agents to arrange inspections. Mr Banzato had access to
the key to the gates
to the Land for that purpose. A campaign update report
issued by CBRE and Savills on 11 July 2018 recorded that two prospective
purchasers
had inspected the Land at that stage of the campaign.
- Counsel
for Chomp made a submission inviting the Court to draw “inferences that
are appropriately adverse to the Plaintiff’s case, on the basis of the
principles laid down in Jones
v Dunkel” from Rove’s failure to
call any director or officer of Linx (other than Mr Demian), any person involved
in the construction
of the fence securing the Land, and all persons to whom Rove
provided the key to the padlocked Sirius Road entrance gates at any
time,
including the Linx project managers who conducted the inspections of the Land or
supervised maintenance work on the Land, Mr
Banzato, and the CBRE and Savills
personnel who conducted the marketing campaign in 2018. Counsel for Haulbuild
made a similar submission
in relation to Rove’s failure to call Mr Banzato
and project managers to whom the key was provided.
- Counsel
for Chomp and Haulbuild did not articulate the inferences for which they
contended, save to say that the inferences would
be “adverse”
to Rove. I decline their invitation to draw those unspecified adverse
inferences. Mr Demian gave evidence about the construction of
the fence and the
padlock installed on the Sirius Road entrance gates. He explained the manner in
which access to the only key was
controlled and the limited purposes for which
employees of Rove and Linx were permitted to use the key. Those aspects of Mr
Demian’s
evidence were not challenged in cross-examination. The evidence
is inherently plausible, being consistent with the cautionary approach
evidenced
by the installation of the concrete barriers in late 2016. The principles in
Jones v Dunkel do not require a party to call cumulative evidence:
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd
[2014] NSWCA 158 
at [81] (Gleeson JA, with whom the other members of the
Court of Appeal agreed) and the authorities there referred to. I do not consider
that the circumstances of the present case required Rove to call each and every
person known to have had access to the key at any
time since 2012. Even if the
case had called for Rove to provide an explanation of its security processes
beyond Mr Demian’s
(unchallenged) evidence, the principles in Jones v
Dunkel would not permit the Court to infer that the evidence of any of those
persons would have been adverse to Rove: Kuhl v Zurich Financial Services
Australia Ltd (2011) 243 CLR 361; (2011) 85 ALJR 533; (2011) 276 ALR 375;
[2011] Aust Torts Reports 82-088; [2011] HCA 11 at [64] (Heydon, Crennan and
Bell JJ); Australian Securities and Investments Commission v Hellicar
(2012) 247 CLR 345; (2012) 86 ALJR 522; (2012) 286 ALR 501; (2012) 88 ACSR
246; (2012) 7 BFRA 408; (2012) 30 ACLC 12-013; [2012] HCA 17 at [165]- [167] and
[232] (per curiam).
- The
evidence tendered in these proceedings included many aerial photographs and
other images of the Land taken at various different
times. None of those
photographs were proved to have been taken immediately prior to 13 July
2018.
- Mr
Elie Abousleiman went to the Land on 12 July 2018 and recorded an eight second
video on his mobile phone at 9:17am. The video shows
parts of the Land in the
vicinity of part of the access road that runs through the Land from the Sirius
Road entrance gates. No mounds
or piles of soil or other material are visible on
the part of the Land shown in the video, but the surface of the earth appears to
have been disturbed relatively recently. Three dump trucks are visible in the
video and one of them has a trailer. Mr Demian gave
evidence that he was not
aware of the presence of trucks on the Land on 12 July 2018. The video does not
depict the whole of the
area of the Land in the vicinity of those dump trucks
and it is not possible to ascertain from the video whether there were mounds
or
piles of soil in that area. Mr Elie Abousleiman gave evidence that he saw a
significant number of piles of soil on the Land while
he was there, many of
which were being moved and levelled out by heavy machinery that he saw there. Mr
Elie Abousleiman added a caption
to the video that read: “New tip boys
– Lane Cove West”. He gave evidence that he only sent the video
to his brother, Mr George Abousleiman. He denied posting it on any website or
chat
group or otherwise publishing it more widely than to his
brother.
The events of 13 and 14 July 2018
- Mr
Demian gave evidence that Linx inspected the Land on 16 July 2018 after the real
estate agents asked questions about work that
appeared to have been carried out
on the site. The Linx employee who conducted that inspection reported to
Mr Demian that stockpiles
of waste material had been dumped
on the Land. Mr Demian promptly caused this to be reported to the NSW
Police, Lane Cove Council and the Environment Protection Authority.
- Rove
tendered CCTV film taken on 13 and 14 July 2018 from a camera mounted on the
premises of its neighbouring landowner, Harley Davidson.
The film shows the
vehicular entrance gates to the Land from Sirius Road in Lane Cove West and part
of the access road that leads
from those gates into the Land.
- During
cross-examination, Mr Demian was asked to make inquiries of Harley Davidson
about whether CCTV film was available for dates
earlier than 13 July 2018. Mr
Demian did so, and reported back that Harley Davidson had determined that the
CCTV film for earlier
dates did not detect truck movements onto the Land and had
therefore declined to release that film to Rove, citing privacy reasons.
Another
neighbouring landowner, Transurban, produced CCTV film to the Court in response
to a subpoena issued by Rove, but no party
tendered any part of that CCTV film.
In these reasons, references to the CCTV film are references to the film
tendered by Rove from
Harley Davidson’s camera on 13 and 14 July
2018.
- The
CCTV film for 13 July 2018 shows a person wearing a cap, carrying a small bag
slung over their right shoulder and smoking from
a cigarette held in their right
hand approaching the closed Sirius Road entrance gates to the Land on foot at
6:49am on 13 July 2018.
The film shows that person opening the gates and
entering the Land. Mr Demian gave evidence that he did not recognise the person,
and that he did not authorise the person to enter the Land or to provide access
to the Land to any other person. There was no challenge
to that aspect of Mr
Demian’s evidence in cross-examination.
- In
his affidavit sworn on 11 August 2021, Mr Demian described the CCTV film as
showing the person “forcibly” entering through the gates to
the Land. The CCTV film does not depict any use of force. The precise means by
which the person opened
the gates is not visible on the CCTV film, but they used
only their left hand to do so. Their right hand remains visible by their
side on
the CCTV film while the gates are being opened. The person was swinging the
gates open less than 30 seconds after first arriving
at the closed gates. The
CCTV film then shows the person walking through the open gates, placing their
bag on the right-hand sight
of the entrance road just inside the gates, and then
continuing along the entrance road into the Land until they disappear from view.
- The
concrete barriers referred to at [65] above are not visible on the CCTV film of the
unidentified person opening the gate on 13 July 2018. The film depicts a person
walking
along the access road from inside the Land towards the gates
approximately seven minutes after the gates were opened. The person
is dressed
in the same way and appears to me to have the same gait as the person who opened
the gates. The person returns to the
location on the right-hand side of the
access gates where the bag was left earlier, removes some clothing from their
upper body and
puts on a high visibility vest. The person then waits in that
location, walking around occasionally in the vicinity of the gates
and on the
road immediately outside the gates, until 7:20am, when trucks begin to arrive at
the gates.
- The
CCTV film shows a large sign located immediately to the right of the entrance
gates that reads: “Expressions of Interest – Large Land
Holding”. The sign also states: “Suitable for Owner-Occupiers
and Developers”. There are no other signs visible in the CCTV
film.
- The
CCTV film shows the first truck stopping just inside the entrance gates and the
person in the high visibility vest walking towards
the driver’s window
where they remain standing for a short time, gesturing with their hands, looking
in the direction of the
drivers’ cab and apparently speaking to the
driver. The person points with their right arm in the direction away from the
gates
(pointing further into the area of the Land) and the truck begins to drive
along the access road almost immediately thereafter. The
CCTV film shows the
truck driving along the access road without stopping. That is to say, the
truck’s progress does not appear
to have been impeded by any barrier.
- The
CCTV film shows a second truck arriving at 7:29am. A similar interaction appears
to occur between the driver and the person in
the high visibility vest, save
that that driver’s arm is shown reaching out of the window and handing
something to the person,
which the person then places in their back pocket,
before the truck proceeds down the entrance road.
- I
have not viewed the remaining 10 hours and 30 minutes of the CCTV film for 13
July 2018, save for those parts that were referred
to in the cross-examination
of witnesses or in the parties’ submissions.
- Based
on his review of the CCTV film, Mr Demian gave evidence that trucks entered the
Land on 54 occasions between 7:20am and 4:21pm
on 13 July 2018.
- As
discussed at [159]-[209] below, Chomp entered
and dumped material on the Land on three occasions on 13 July 2018.
- As
discussed at [227]-[232] below, Mr El
Kadomi’s employed driver entered and dumped material on the Land on two
occasions on 13 July 2018.
- As
discussed at [234]-[252] below, Mr George
Abousleiman entered and dumped material on the Land on three occasions on 13
July 2018.
- As
discussed at [254]-[260] below, Mr
Gawidziel’s employed or contracted driver entered and dumped material on
the Land on one occasion on 13 July 2018.
- Mr
Jones has worked in the earthmoving business for more than 50 years. He gave
evidence that he received a telephone call from Mr
Anthony Abi Marlu on 13 July
2018 asking him to be at 1 Sirius Road in Lane Cove the following morning for a
job. Mr Jones knew Mr
Abi Marlu, having met him a few weeks earlier in
connection with another job that he had done for him. Mr Abi Marlu told that him
the job at Lane Cove was for his brother.
- The
CCTV film for 14 July 2018 shows a truck carrying earthmoving equipment arriving
at the Sirius Road entrance gates in darkness
at 5:55am. In cross-examination,
Mr Jones identified that as his truck and track loader, and identified himself
as the driver.
- The
CCTV film shows Mr Jones opening the gates at 6:30am and driving his track
loader inside the gates at 6:45am. Mr Jones gave evidence
that he opened the
entrance gates to the Land with a code that had been provided to him by text
message from Mr Abi Marlu a short
time earlier. During cross-examination, Mr
Jones produced the text message that he received from Mr Abi Marlu containing
the code
to open the entrance gates. Mr Jones gave evidence identifying the
mobile telephone number from which he received that message.
- The
CCTV film shows a person arriving at the Sirius Road entrance gates on foot at
6:44am. From their physical appearance and gait
recorded on the film, that
person appears to be the same person as the person shown arriving on foot in the
CCTV film dated 13 July
2018. They are carrying the same bag, or a bag of very
similar appearance. Mr Jones identified the person as Mr Abi Marlu. At the
time
of Mr Abi Marlu’s arrival, Mr Jones’ truck is visible parked just
outside the gates and Mr Jones can be seen working
to offload his track loader
from the back of his truck.
- The
CCTV film shows Mr Jones driving his track loader through the gates at 6:45am
and stopping just inside the gates. Mr Abi Marlu
is seen walking over to the
track loader and appears to be speaking with Mr Jones. Mr Abi Marlu points with
his right hand in the
direction further into the area of the Land, away from the
gates. Mr Jones gave evidence that Mr Abi Marlu was pointing him to the
areas of
the Land where he was required to level the mounds and to build a road so that
trucks could go down around the corner. After
about 90 seconds, Mr Jones’
track loader is seen moving away and proceeding down the access road into the
Land.
- Mr
Jones gave evidence that he saw numerous mounds of soil throughout the site and
that he worked on levelling the mounds until 11:00am,
when he received a
telephone call telling him to stop work. He could not estimate how many mounds
he had levelled before finishing
work.
- Mr
Demian was asked in cross-examination whether he knew Mr Jones or Mr Abi Marlu.
Mr Demian answered that he did not, and the cross-examiner
did not challenge
that answer.
- Mr
Abi Marlu did not appear in response to a subpoena issued by Haulbuild. Although
Chomp made an application for a bench warrant
for his arrest at one stage during
the final hearing, it did not pursue that application to completion and
ultimately withdrew the
application and abandoned any attempt to call Mr Abi
Marlu to give evidence. No steps were taken by any other defendant to adduce
evidence from Mr Abi Marlu.
- The
CCTV film for 14 July 2018 records the first truck (with the exception of Mr
Jones’ vehicle) arriving at the Sirius Road
entrance gates at 7:09am.
There was no one waiting on foot at the gates at the time. The truck is seen
driving through the gates
without stopping and proceeding part of the way down
the entrance road. A person wearing a high visibility vest can be seen
approaching
the access road, whereupon the truck stops. After about two minutes
during which the person remains beside the truck, the truck is
seen to turn left
and drive uphill within the Land until it is out view of the CCTV camera.
- I
have not viewed the remaining six hours and 20 minutes of the CCTV film for 14
July 2018, save for those parts that were referred
to in the cross-examination
of witnesses or in the parties’ submissions.
- Based
on his review of the CCTV film, Mr Demian gave evidence that trucks entered the
Land on 20 occasions between 7:09am and 1:17pm
on 14 July 2018.
- As
discussed at [159]-[209] below, Chomp entered
and dumped material on the Land on two occasions on 14 July 2018.
- As
discussed at [211]-[225] below, Haulbuild
entered and dumped material on the Land on three occasions on 14 July 2018.
- As
discussed at [234]-[252] below, Mr George
Abousleiman entered and dumped material on the Land on one occasion on 14 July
2018.
- Mr
Demian gave evidence that he did not authorise any vehicular access to the Land
on 13 and 14 July 2018, and that he did not consent
to any person entering the
Land on those dates.
Investigations conducted in the immediate
aftermath of 16 July 2018
- Rove
reported its discovery of the dumped material to the EPA on or about 25 July
2018. The EPA inspected the Land on 31 July 2018.
On 17 September 2018, the EPA
wrote to Mr Demian referring to its inspection of the Land and stating that it
was investing potential
breaches of the POEO Act and seeking to identify the
persons responsible for dumping the stockpiles on the Land. The letter also
stated that Rove may choose to voluntarily clean up the waste whilst the matter
was under investigation, and that any such action
would need to ensure that all
waste was removed and disposed of lawfully.
- In
about late July 2018, Mr Demian arranged for a drone to fly over the Land and
film the condition of the Land. That film shows numerous
mounds or piles of
soil. The location of the piles and their volume was surveyed by Mr Aaron
Millard, a registered surveyor of Ramsay
Surveyors Pty Ltd, between 17 and
22 August 2018. Mr Millard provided a report on 4 September 2018 and a
further report dated 11
February 2021 in which he identified 209 piles with an
aggregate volume of 1,427.3m3. Mr Millard produced aerial photographs of the
Land on which he superimposed the outline of each pile, ascribed an identifying
number to each pile and recorded the cubic metre
volume of each pile. A copy of
those photographs is Annexure A to these reasons. The defendants did not
challenge any aspect of Mr
Millard’s evidence.
- In
August 2018, Mr Adam Sullivan of Sullivan Environmental Sciences Pty Ltd was
engaged to work together with Mr Millard to conduct
a waste classification of
the piles. Mr Sullivan holds a Bachelor of Science degree in Soil Science from
the University of Sydney
and is a Certified Environmental Practitioner
specialising in Site Contamination under the certification scheme administered
by the
Environment Institute of Australia and New Zealand. He has 23
years’ experience in the assessment and remediation of contaminated
land.
- Mr
Sullivan prepared reports dated 18 September 2018 and 11 February 2021 in which
he classified 811.6m3 of the soil waste in the
piles as General Solid Waste
(non-putrescible) and 615.7m3 of soil waste in the piles as Special Waste
– Asbestos together
with General Solid Waste (non-putrescible).
- In
his 11 February 2021 report, Mr Sullivan described in more detail the steps that
he took for the purpose of classifying the piles.
In summary:
- (1) Mr Sullivan
visually inspected the outer surface of each individual pile and the inner
surface at up to three evenly spaced locations
of each pile, and documented the
dominant soil material type in his field notes using industry standard soil
logging descriptions
(such as natural shale rock, sandy clay, natural sandstone
rock);
- (2) Mr
Sullivan’s visual inspection included looking for indications of
contamination, such as soil staining, discolouration
and odours;
- (3) Mr Sullivan
also used a photoionisation detector (or PID) to screen soil materials in
each pile to detect any volatile chemicals;
- (4) Mr Sullivan
observed that foreign materials that were visible on and in some of the piles
included fragments of fibro cement.
He recorded the location of these fragments
in his field notes and collected 17 such fragments for analysis for the presence
of asbestos;
- (5) after
completing his visual inspections and PID screening, Mr Sullivan used his field
notes to identify piles of similar soil
type and composition, grouping what he
determined to be “like” materials based on soil composition,
colouring, consistency, presence of foreign material, and presence of fibro
cement fragments.
This resulted in 13 groups, which Mr Sullivan labelled A to M.
Mr Sullivan had observed fibro cement fragments in the piles in seven
of those
13 groups;
- (6) Mr Sullivan
then collected 22 soil samples that he considered to be representative of the 13
groups. This included a sample taken
from one or more piles in each group where
fibro cement fragments had been observed; and
- (7) after
receiving the results of the laboratory testing of the soil samples, Mr Sullivan
then classified the 13 groups A to M in
accordance with the “Waste
Classification Guidelines, Part 1: Classifying Waste”, published by
the EPA in November 2014.
- Annexure
B to these reasons is a copy of Mr Sullivan’s table listing his 13 groups
A to M, identifying the piles included in
each of those groups and listing the
waste classification that he assigned to each of those groups.
- Mr
Millard’s annotated aerial photographs at Annexure A to these reasons show
that the 209 piles were located in clusters in
four different areas of the Land,
with the two largest areas being located on either side of the access road that
runs through the
Land from the Sirius Road entrance gates in an east westerly
direction before curving to the north. A comparison of the numbered
piles on
Annexure A with the pile numbers identified in Mr Sullivan’s waste
classification Annexure B to these reasons reveals
that:
- (1) the cluster
of piles numbered 1 to 26 depicted on sheet 2 of Mr Millard’s annotated
aerial photographs comprised four different
soil
types,[12] with 18 of the piles
located throughout the cluster of 26 being classified as asbestos waste;
- (2) the cluster
of piles numbered 27, 28, and 72 to 183 depicted on sheet 3 of Mr
Millard’s annotated aerial photographs comprised
six different soil
types,[13] with 40 of the piles
located throughout the cluster of 114 piles being classified as asbestos
waste;
- (3) the cluster
of piles numbered 29 to 71 depicted on sheet 4 of Mr Millard’s annotated
aerial photographs comprised five different
soil
types,[14] with three of the piles
located throughout the cluster of 43 piles being classified as asbestos waste;
and
- (4) the cluster
of piles numbered 184 to 209 depicted on sheet 5 of Mr Millard’s annotated
aerial photographs comprised three
different soil
types,[15] with two of the piles
located throughout the cluster of 26 piles being classified as asbestos
waste.
- The
evidence of Mr Sullivan and Mr Millard does not purport to identify which
specific piles were deposited on the Land by any of
the defendants in these
proceedings.
- Mr
Abousleiman tendered a report of Dr Cheryl Halim dated 14 May 2021. Dr Halim has
a Bachelor Engineering (Chemical Engineering)
and Doctor of Philosophy in
Chemical Engineering. Dr Halim has approximately 15 years’ experience in
contaminated land consultancy,
including the management of asbestos assessment
and remediation projects.
- The
following three themes emerged from Dr Halim’s report, which were then
addressed in a report prepared by Mr Sullivan dated
8 July 2021 in reply to Dr
Halim, in a report dated 20 August 2021 prepared by Mr Sullivan and Dr Halim
jointly following their conclave,
in a further report prepared by Mr Sullivan
dated 23 August 2021 expressing further opinions in relation to the points of
disagreement
that remained between the experts following their joint conference,
and in cross-examination of Mr Sullivan and Dr Halim:
- (1) criticisms
of Mr Sullivan’s methodology and approach to the waste classification;
- (2) whether the
piles classified by Mr Sullivan comprised material excavated from the Land or
comprised material brought onto the
Land from elsewhere; and
- (3) alternative
ways in which asbestos contamination might have been remediated without removing
all of the piles from the Land.
- Before
addressing the substance of each of these themes, it is necessary to deal with a
submission made by Chomp criticising Mr Sullivan’s
conduct in preparing
his report dated 23 August 2021 after the experts had conferred and produced
their joint report. Mr Sullivan’s
23 August 2021 report was admitted into
evidence without objection. In closing submissions, Chomp submitted that the
report was an
attempt by Mr Sullivan to narrow the scope of his agreement and to
reinforce his disagreements with Dr Halim recorded in their joint
report and
that “the Court should deprecate this backsliding as a professional
embarrassment to his expert credibility”.
- I
reject Chomp’s submission. Mr Sullivan’s 23 August 2021 report does
not narrow the scope of any agreement that he expressed
with Dr Halim in their
joint report. Rather, Mr Sullivan sets out verbatim what the experts wrote in
their joint report about key
points of disagreement and then expands on his
reasons for disagreement. It would have been preferable for all of Mr
Sullivan’s
reasons for disagreement to be included in the joint report.
However, where further reasons for disagreement occur to an expert after
the
joint report has been completed, it is entirely consistent with the
expert’s duty to the Court and with the Expert Witness
Code of Conduct for
those supplementary reasons to reduced to writing in a further report. The
submission that Mr Sullivan was “backsliding” or that his
conduct in preparing his 23 August 2021 report was embarrassing to his
professionalism or to his credibility as an expert
witness was baseless, and
should not have been made. The position might have been different if Mr Sullivan
had not participated in
the joint conference and joint report in good faith, or
had deliberately withheld from the joint report the additional reasons that
he
expressed in his 23 August 2021 report. But there is no evidence to suggest that
this occurred, and it was not put to Mr Sullivan
in cross-examination. Indeed,
neither Chomp nor any other defendant raised any issue with Mr Sullivan in
cross-examination concerning
his independence and compliance with his duties as
an expert witness in the preparation of any of his reports or in his oral
evidence.
- In
relation to the first theme referred to at [120] above, the following issues raised by Dr Halim
concerning Mr Sullivan’s approach to the sampling, grouping, and testing
of
the piles and classification of the waste remained live following the
preparation of their joint report:
- (1) whether Mr
Sullivan’s approach to sampling the soil from each of the 209 piles was
consistent with Schedule B2 (‘Guideline
on Site Characterisation’)
of the National Environmental Protection (Assessment of Site Contamination)
Measure 1999 (as amended in 2013) (NEPM B2);
- (2) Mr
Sullivan’s 11 February 2021 report provided only three photographs of
three stockpiles, which Dr Halim considered “does not allow
verification of the accuracy of stockpile segregation” which was
“crucial” information given that Mr Sullivan had segregated
the materials into groups A to M “based on the appearance of each
stockpile”; and
- (3) Dr
Halim’s opinion that it was inappropriate to test only 22 soil samples
from the 209 piles and treat them as representative
of all of the materials in
Mr Sullivan’s groups A to M, and to test only 17 samples of fibro cement
fragments and treat them
as representative of all such fragments that Mr
Sullivan observed in 84 of the piles.
- Mr
Sullivan disputed the importance of photographs of the piles, noting that the
waste transportation and disposal provisions of the
POEO Act do not require
photographic evidence supporting the classification of the waste. Dr Halim
maintained that photographic evidence
was important, having regard to Mr
Sullivan’s reliance on his visual observations in order to group the piles
into his categories
A to M. Ultimately, it seemed to me that Dr Halim’s
complaint about the absence of extensive photographs was driven by a desire
to
be able to see photographic evidence of the piles in circumstances where she had
not had the opportunity to physically inspect
the piles before they were removed
from the Land. That desire is understandable, but it does not cause me to doubt
the accuracy of
Mr Sullivan’s observations of the dominant soil type in
each pile that he recorded in his field notes at the time of his inspection
and
in his waste classification table which is reproduced at Annexure B to these
reasons. There was no challenge to Mr Sullivan’s
expertise or independence
as an expert witness in these proceedings, save for the submission that I have
rejected at [121]-[122] above, and it was
not put to Mr Sullivan in cross-examination that he had erred in characterising
the soil types in the piles. Nor
does it cause me to doubt the accuracy of Mr
Sullivan’s record of the extent to which he observed fibro cement
fragments in
the piles during his visual inspection, which was conducted with
the benefit of his 23 years’ experience.
- Mr
Sullivan’s 11 February 2021 report stated that he had inspected the inner
surface of each pile at up to three locations.
Dr Halim’s report dated 14
May 2021 suggested that at least three samples were required by NEPM B2 for
stockpiles of less than
75m3. Mr Sullivan emphasised that NEPM B2 sets out a
recommended number and not a required number of samples for stockpiles less
than
75m3. Mr Sullivan gave evidence that the piles on the Land varied size from
0.8m3 to 42.1m3. He accepted that he had not taken
the recommended number of
samples for each and every one of the 209 stockpiles, but gave evidence that he
had applied his experience
in designing a sampling program that he considered to
be appropriate in the circumstances, having regard to the guidance in NEPM
B2,
his knowledge of the site, and commercial and financial constraints. Dr Halim
opined that, in circumstances where the material
was allegedly dumped on the
Land by different persons from different locations, the similar appearance of
that material did not warrant
an assumption that the material would have the
same chemical and contaminant composition. In the joint report prepared with Dr
Halim,
Mr Sullivan acknowledged that he had undertaken his waste classification
process on the assumption that the material had not been
sourced from multiple
sites and that this assumption had informed his approach to sampling. Mr
Sullivan agreed that, if he had known
that the material in the piles had
emanated from multiple sites, it would have been preferable to increase the
sampling density.
Contrary to the defendants’ submissions, this concession
does not undermine Mr Sullivan’s unchallenged evidence of the
dominant
soil type that he observed in each of the 209 piles. Nor does it undermine his
evidence referred to below concerning the
extent to which he observed fibro
cement fragments in the piles.
- Mr
Sullivan and Dr Halim disagreed about whether it was appropriate to conclude (as
Mr Sullivan had) that approximately 90 per cent
of the total number of piles
observed to contain fibro cement fragments should be classified as asbestos
waste on the basis that
15 of the 17 fibro cement fragments tested by Mr
Sullivan (88 per cent of fragments tested) were found to contain asbestos. Dr
Halim
maintained that the testing data for 17 samples could not be extrapolated
in that manner given that the material in the piles had
originated from
different sources, and fibro cement does not always contain asbestos.
- Thus,
Dr Halim’s contention is that increased sampling density (which Mr
Sullivan accepts would have been preferable based on
what he now knows about the
origin of the piles) and testing of a greater number of fibro cement fragments
might have resulted in
a lesser volume of soil in the piles being classified as
asbestos waste.
- As
a matter of logic, increased sampling density might have detected additional
fibro cement fragments, but would not have reduced
the number of such fragments
detected in the piles during Mr Sullivan’s inspection.
- It
is obvious that, with or without taking a greater number of soil samples from
each pile for testing, it would have been possible
to test a greater number of
the observed fibro cement fragments for asbestos. However, Mr Sullivan gave
evidence that his approach
was consistent with the guidance in NEPM B2
concerning representative sampling of materials suspected of containing
asbestos, noting
that NEPM B2 states that the number analysed should take into
account the variation in appearance and form of such samples. Mr Sullivan
also
refers to the alternative approach to representative sampling referred to in
NEPM B2, being to assume that all suspect material
contains asbestos. Dr Halim
did not give any evidence that responded directly to Mr Sullivan’s
characterisation of his approach
as appropriately conservative and consistent
with the guidance in NEPM B2, and it was not put to Mr Sullivan in
cross-examination
that his approach was not appropriately conservative. I accept
Mr Sullivan’s evidence.
- In
now turn to the second theme referred to at [120] above.
- Dr
Halim was asked to address in her 14 May 2021 report whether it was
“reasonable to find that many of the contaminants found in the report
could have come from materials located within the Site
itself”. Dr
Halim did not answer that question, but presented information derived from her
review of photographs of the Land taken at various
times and her comparison of
the asbestos and the types and concentrations of other contaminants recorded by
Mr Sullivan in the piles
with those identified on other areas of the Land in
soil sampled and test pits constructed by environmental consultants Senversa
in
a report dated 18 October 2018. The manner in which Dr Halim presented that
information in her report obfuscated the issue, although
I do not suggest that
this was her intention. It was not until the joint report was furnished that it
became clear that Dr Halim’s
opinion was that she was “unable to
preclude” that the source of the asbestos and other contaminants in
the piles “could be from the site”. Mr Sullivan reviewed the
same data and highlighted what he regarded as significant differences between
the concentrations of copper,
mercury, total recoverable hydrocarbons, lead,
benzo(a)pyrene and polycyclic aromatic hydrocarbons detected in the 209 piles
compared
with those identified by Senversa on other areas of the Land. Whilst Mr
Sullivan did not consider that these differences necessarily
precluded the
possibility that the material in the piles had been excavated from the Land, he
opined that the prevalence of fibro
cement fragments that he observed in the
piles (with fragments being observed in 84 of the 209 piles) did not correspond
with the
infrequent and random findings of asbestos or fibro cement fragments
documented in previous environmental reports. In particular,
Senversa had
reported only one fibro cement fragment in 13 test pits that it had constructed
on the Land. In Mr Sullivan’s
opinion, these contrasts in asbestos fibro
cement fragment findings indicated that the material in the piles had not been
excavated
from the Land. Dr Halim considered that the asbestos testing recorded
in the previous environmental reports was not sufficiently
extensive to support
Mr Sullivan’s opinion, and maintained that she could not preclude the
possibility that the material in
the piles had been excavated from the Land.
- In
cross-examination, Dr Halim agreed that the bedrock formation of the Land is
sandstone and that a very great number of the 209
piles had been assessed by Mr
Sullivan as containing shale. Dr Halim emphasised that she had not seen
photographic evidence of the
piles to verify for herself that they contained
shale, but agreed that any piles containing shale could not have been generated
by
excavating the Land. Dr Halim maintained that she “cannot
preclude” that “some of the materials could have been
generated from the site”. Dr Halim agreed, however, that
“[a]t least some of the materials would have been from
offsite”, including at least some of the asbestos in the piles.
It was put to Dr Halim that the piles containing shale were interspersed
throughout the 209 piles, and that it would be nonsense to
suggest that some
piles had been generated from the Land and others had been dumped from offsite.
Dr Halim answered: “I have not reviewed where the locations of the
shale is with respect of all the other stockpiles that are considered can be
from the site, or cannot be precluded that they cannot be from the
site”.
- A
comparison of Mr Millard’s annotated aerial photographs at Annexure A to
these reasons with Mr Sullivan’s waste classification
table at Annexure B
to these reasons reveals that the piles of natural shale are indeed interspersed
throughout the groups of piles
shown in sheets 3, 4, and 5 of Mr Millard’s
photographs.
- Dr
Halim’s evidence that she “cannot preclude” that some
of the piles had been excavated onsite was based on her comparison of the
asbestos/fibro cement findings and chemical concentrations
referred to above,
underpinned by an assumption drawn from Mr Abousleiman’s evidence that,
when he attended the Land on 13
July 2018, he “noticed a very large
hole to the right where other trucks were dumping”. Dr Halim observed
that “if there had been a large hole, then there would have been a need
to excavate the material from the site in the first place”. However,
Dr Halim has never attended the Land and readily accepted that she was not in a
position to express an opinion about what
had happened on the Land.
- For
the reasons explained at [124] above, I accept Mr Sullivan’s evidence of the
dominant soil types that he observed in the piles through visual inspection
of
the outer surface of the piles and sampling of the inner surface of each pile.
- I
find on the balance of probabilities that the 209 piles identified by Mr Millard
and Mr Sullivan originated from various locations
offsite. The defendants have
given evidence that they carted material from offsite onto the Land and dumped
it there on 13 and 14
July 2018. As Dr Halim agreed, the large number of piles
containing offsite natural shale material, which were interspersed throughout
the 209 piles, could not have been excavated from the Land. The possibility that
some of the 209 piles are attributable to stockpiling
of material excavated
onsite is not supported by any of the photographic evidence on which Mr Demian
was cross-examined[16] and has a
distinct air of unreality to it when one considers the locations of the piles
containing the natural shale material throughout
the groups of piles shown in Dr
Millard’s sheets 3, 4 and 5 of Annexure A to these reasons. Dr Halim
appears to have focussed
on a comparison of chemical concentrations, without
considering the available evidence concerning the soil types and the location
of
piles containing different soil types. I reject the defendants’
submissions, which adopted the same flawed approach of ignoring
the evidence
about existence of the natural shale material throughout the 209 piles and its
significance to the question whether
the 209 piles might have contained material
that had been excavated onsite.
- The
evidence of Dr Halim and Mr Sullivan in relation to the third theme –
possible alternative approaches to remediation –
is addressed at [146]-[150]
below.
Rove’s remediation of the Land
- As
referred to at [111]
above, the EPA informed Mr Demian on 17 September 2018 that Rove may choose to
voluntarily remove and lawfully dispose of all of
the waste while the EPA was
investigating the matter. The EPA’s letter stated that any such clean up
actions should include:
“a) Rendering the site safe;
b) Engaging a suitably qualified occupational hygienist to
classify the waste;
c) Engaging a licensed asbestos removalist to undertake the
removal work of asbestos waste;
d) Obtaining a Clearance Certificate from a Licensed Asbestos
Assessor once the waste has been removed from the Premises;
e) Ensuring that the transport of asbestos waste is reported in
the EPA’s WasteLocate system...and
f) Ensuring that all waste is disposed of at a waste facility
that can lawfully receive the waste.”
- During
October 2018, Rove entered into negotiations for the sale of the Land to
Airtrunk Lane Cove Pty Ltd. A call option deed dated
16 October 2018 between
those two parties included a clause requiring Rove to remove all waste from the
Land within six months after
the date of the deed at its own cost, including the
items identified in the EPA’s letter dated 17 September 2018 and in Mr
Sullivan’s 18 September 2018 waste classification report.
- In
early February 2019, Rove engaged Mr Anthony Grieve to quantify the cost of
removing and lawfully disposing of the waste material.
Mr Grieve is a building
consultant, civil engineer and project manager. He inspected the Land on 18
February 2019 and prepared a
report dated 3 May 2019 that was tendered in these
proceedings. On the basis of his site inspection and the information contained
in Mr Millard’s 4 September 2018 survey report and Mr Sullivan’s 18
September 2018 waste classification report, Mr Grieve
estimated the total
costs of removal of the waste as $919,117 on the basis that all material to be
removed would be treated as asbestos
affected. Referring to the reports of Mr
Millard and Mr Sullivan, Mr Grieve prepared a diagram showing the location of
piles classified
as containing asbestos compared to piles that were not so
classified. The diagram in Appendix D to Mr Grieve’s report showed
that
the piles that were classified as asbestos waste were interspersed throughout
the whole of the site amongst the other piles.
Mr Grieve’s report stated:
“I considered the possibility of treating the piles not containing
asbestos as virgin excavated natural material but because
of the widespread
distribution of the piles containing asbestos it was my opinion that all the
material would have to be treated
as asbestos affected because of the difficulty
of ensuring that there was no cross contamination during loading.”
- Under
cross-examination by counsel for the eighth defendant, Mr Grieve identified
approximately 20 piles on different parts of the
Land that had not been
classified as asbestos waste and which could have been removed from the Land by
skilled operators without
becoming contaminated with asbestos from other piles.
Mr Grieve maintained that it was otherwise impractical to try to separate the
piles out because those containing asbestos were interspersed throughout the
site together with the piles that had not been classified
as asbestos
waste.
- Mr
Grieve’s estimate of $919,117 included the cost of equipment, earthworks,
supervision of the removal by a licensed asbestos
removalist, tip fees and
environmental testing after removal. The estimated tip fees of $508,800
accounted for more than half of
the total estimated removal costs. In
cross-examination, Mr Grieve said that it was about twice as costly to dispose
of asbestos
waste than to dispose of waste that did not contain asbestos.
- The
only aspect of Mr Grieve’s evidence that was challenged in
cross-examination was his allowance for all of the material to
be removed and
disposed of as asbestos waste. As referred to at [156] below, the
contractor that ultimately removed and disposed of the 209 piles charged a
lesser fee for the removal and disposal of
excavated natural material than for
waste containing asbestos. I therefore infer that the contractor did in fact
separate asbestos
waste from other material when removing and disposing of the
piles.
- Mr
Demian gave evidence that he made arrangements in about February 2019 on behalf
of Rove for Linx to organise the removal and disposal
of the piles from the
Land. Mr Demian gave evidence that this work was undertaken between about late
February 2019 and early July
2019 by subcontractors engaged and paid by Linx,
and that Linx then charged those costs to Rove together with a fee for
Linx’s
supervision of the removal.
- On
19 July 2019, Integrated Environmental Pty Ltd issued a “Stockpile
Removal and Asbestos Clearance Report” to Linx signed by a licensed
asbestos assessor. The report stated that, based on a visual inspection of the
Land, the piles had been
removed and there were no visible signs of asbestos
residue.
- In
her report dated 14 May 2021, Dr Halim identified other remedial options that
“could have been considered in the remediation of the
stockpiles”, including placing contaminated fill beneath a capping
layer and removing asbestos fragments through an “emu
picking” process and reusing the remaining material onsite. Dr Halim
estimated that the cost of the capping layer alternative would be in
the range
of $124,000 to $200,000 plus ongoing management to ensure that the integrity of
the cap was maintained. Dr Halim did not
estimate the costs of that ongoing
management. Dr Halim estimated that the cost of the “emu
picking” alternative would be in the range of $72,000 to $143,000.
- The
defendants did not plead that Rove failed to take reasonable steps to mitigate
any loss that it had suffered as a result of the
alleged trespasses, and I
accept the submission made by senior counsel for Rove that these aspects of Dr
Halim’s evidence are
not relevant to the issues to be determined in these
proceeding. It is therefore not necessary to address the evidence or Mr
Sullivan’s
response to it in any detail, but I make the following brief
observations in case a different view about the relevance of the evidence
is
taken in any subsequent appeal.
- First,
Dr Halim agreed in cross-examination that the determination of a remediation
strategy must take into account whether the appropriate
regulatory authority
would accept a particular strategy. The EPA’s letter dated 17 September
2018 made it clear that any voluntary
clean up would require removal of all of
the waste. There is no evidence indicating that the EPA would have accepted, or
would have
been likely to have accepted, any of the alternative approaches to
remediation referred to in Dr Halim’s report. That is a
further reason why
I do not regard Dr Halim’s evidence as relevant.
- Second,
Dr Halim and Mr Sullivan agreed in their joint report that the ongoing
maintenance costs that would be associated with a cap
are difficult quantify
(and neither of them attempted to quantify it). Thus, the evidence does not
support a finding on the balance
of probabilities that capping would have been a
less costly remediation strategy, even assuming that it would have been
acceptable
to the EPA. Moreover, in circumstances where Rove was in the process
of selling the Land and the ongoing maintenance costs would
therefore have
fallen on the purchaser, I do not consider that Rove’s conduct in removing
and disposing of the waste could
be characterised as an unreasonable approach to
dealing with the piles of material dumped on its land. The terms on which
Airtrunk
Pty Ltd acquired an option to purchase the Land included an obligation
for Rove to remove the material at its own
cost.[17]
- Third,
Dr Halim agreed in cross-examination that the cost of an “emu
picking” strategy would depend on how many rounds of treatment (or
picking) the soil required before it was validated as being below the criteria
for the relevant land use. The question whether “emu picking”
would have ultimately been a less costly remediation strategy is therefore a
matter of speculation. Moreover, there is no evidence
that would support a
finding that a successful “emu picking” exercise would have
been a sufficient remediation strategy in the circumstances of this case. The
question is whether the remaining
material could have lawfully been left on the
Land, or whether that would have constituted a scheduled activity by reason of
clause
39 and/or clause 42 of Schedule 1 to the POEO Act requiring either a
licence or an exemption. Dr Halim and Mr Sullivan did not purport
to express any
opinion about this issue, which was not addressed in the defendants’
submissions.
Costs of remediation
- Ramsay
Surveyors Pty Ltd issued an invoice to Linx in the amount of $3,795 in respect
of Mr Millard’s work in September 2018.
- Sullivan
Environmental Sciences Pty Ltd issued invoices to Linx Construction Trust
totalling $13,876.50 in respect of Mr Sullivan’s
work in September 2018.
- Invoices
tendered by Rove show that these amounts were then charged by Linx to Rove.
- According
to Mr Demian’s affidavit sworn on 12 February 2021, Linx also paid a total
amount of $843,219.10 to subcontractors
in respect of the removal and disposal
of the piles. Linx also charged the amounts of those invoices to Rove, plus a
supervision
fee of $84,589.07 charged to Rove. Mr Demian noted that the
supervision fee was approximately 10 per cent of the subcontractor costs
and
described this as “a typical project management fee” in his
experience.
- Copies
of invoices issued by various subcontractors to Linx, and copies of invoices
issued by Linx to Rove, were tendered in evidence.
Those invoices, which were
conveniently listed in Rove’s written closing submissions, show that the
total amount charged by
Linx to Rove was $945,479.64, including the Ramsay
Surveyors and Sullivan Environmental Sciences invoices referred to above, the
supervision fee referred to above, and GST. I have been unable to reconcile that
figure with the total amounts referred to in Mr
Demian’s affidavit, the
higher amount of $985,705.31 referred to in Rove’s closing submissions, or
the lower amount referred
to in the closing submissions on behalf of Mr George
Abousleiman. The amount of $945,479.64 calculated from the invoices is the most
reliable figure, as invoices are contemporaneous business records evidencing the
costs charged to Linx and on-charged to Rove. It
is clear from the information
contained on the invoices that the charges were for work relating to the removal
of the 1,427.3m3 of
dumped material from the Land and associated costs such as
the hire of necessary equipment. I reject the submission made on behalf
of Chomp
that some (unspecified) adverse inference should be drawn against Rove for its
failure to call any director, officer, executive,
manager, accounts personnel or
worker from any of the subcontractors.
- Invoices
issued by the subcontractor Xela Projects Pty Ltd to Linx contain separate
charges for the disposal of 811.6m3 of “ENM” (referring to
excavated natural material) and 616m3 of “GSW (ASB)”
(referring to waste containing asbestos). The volume of asbestos waste
stated in the invoices is the volume calculated by Mr Sullivan
in his September
2018 report to Linx. The volume of “ENM” referred to in the
invoices corresponds with the volume of general solid waste (non-putrescible)
calculated in Mr Sullivan’s
September 2018 report. The joint expert report
refers to Mr Sullivan subsequently classifying this waste as
“ENM” in a report prepared for Linx dated 10 February 2019.
Mr Sullivan’s 10 February 2019 report was not in evidence in these
proceedings.
The separate fees charged by Xela Projects Pty Ltd in respect of
the different types of waste indicate that the subcontractor did
in fact
differentiate between asbestos waste and other waste in the removal and disposal
process, contrary to the approach that had
been assumed by Mr Grieve. Based on
the total volume and total contract price for each of type of waste specified in
the invoice,
Xela Projects charged $323.76 per cubic metre for the removal and
disposal of ENM and $521.38 per cubic metre of asbestos waste for
the removal
and disposal of asbestos
waste.[18]
- Subject
to one matter raised on behalf of Mr George Abousleiman concerning the
supervision fee charged by Linx, the defendants did
not dispute the amount of
the costs actually incurred by Rove. The issue concerning the Linx supervision
fee is addressed at [278] below.
Completion of the sale of the
Land in October 2019
- Rove
transferred the Land to Airtrunk Lane Cove Pty Ltd on or about 21 October 2019.
Alleged trespass by Chomp
- Rove’s
pleaded case against Chomp relates to three alleged trespasses on 13 July 2018
and one alleged trespass on 14 July 2018.
- Chomp
admits entering and depositing material the Land on three occasions on 13 July
2018 and two occasions on 14 July 2018, but pleads
that the material was VENM
within the meaning of the POEO Act which had been transported from a
building site in North Sydney.
- Chomp
denies that it committed trespass and pleads that it entered the Land and
deposited the VENM on the Land:
- (1) with
Rove’s consent given on 11 or 12 July 2018 by a person with actual or
ostensible authority from Rove to do so; or
- (2) with the
consent of the gatekeeper (Mr Abi Marlu) who was in possession of the Land at
the time Chomp’s trucks entered on
13 and 14 July 2018; or
- (3) pursuant to
an implied licence that permitted Chomp to enter the Land for the for purpose of
depositing loads of VENM in return
for payment of a fee of $50.00 per load and
on the condition that Chomp would follow the directions of the person in
possession or
control of the Land when depositing the VENM on the
Land.
- If
it is found to have committed the alleged trespasses (which is denied), Chomp
relies on the defences referred to at [11]-[12] above.
- Mr
Chris Tsompanidis has worked in excavation and demolition since 2003 and has
been a director of Chomp since 2012. In his affidavit
sworn on 19 April 2021, Mr
Tsompanidis gave evidence that it was common for builders to contact Chomp
requesting VENM for the purpose
of filling their construction sites. He deposed
to having answered a telephone call made to his business partner’s mobile
telephone
on either 11 July or the morning of 12 July 2018. According to Mr
Tsompanidis, the person on the telephone introduced himself “as being
from a building and developing company”. In cross-examination, Mr
Tsompanidis said that the caller did give his name and the name of the company
he claimed to be calling
from, but that he no longer recalled these details. Mr
Tsompanidis gave evidence that he was aware that illegal dumping is a plague
on
the construction industry, and that Chomp took care to ensure that it was not
caught up in any illegal dumping. However, he did
not make a record of the
caller’s name, even though he acknowledged that the caller “could
have been anyone”. When asked about this in cross-examination, Mr
Tsompanidis said: “I wasn’t expecting the person to
disappear”. There is no evidence that the caller
“disappeared”. Rather, the evidence shows that Mr Tsompanidis
sent text messages to the unidentified caller on several occasions between 15
July
2018 and 23 July 2018 enquiring as to whether further loads could be
delivered to the Land the following day. On each occasion, the
unidentified
caller either sent a reply to the effect that loads were not being accepted that
day but would be accepted the following
day, or did not respond at all. There is
no evidence indicating that the unidentified caller’s mobile phone number
ceased operating
or that Mr Tsompanidis’ messages were not delivered to
that number.
- In
his affidavit, Mr Tsompanidis deposed that he had a conversation with the caller
to the following effect:
“Builder: Do you have any clean loads?
Chris: Yep. Where’s the site? and how
much do you charge?
Builder: We’re at Lane Cove. $50.00 per load.
Chris: OK, text me your address and let me
organise the boys to come around.”
- Mr
Tsompanidis received a text message from the caller at 7:41am on 12 July 2018,
which read:
“Sirius road lane cove west channel 26 thanks”
- Mr
Tsompanidis gave evidence that channel 26 was the radio frequency that all the
trucks and operators of the site were using to communicate
with one another
about where material should be dumped.
- At
the time that Mr Tsompanidis received this call, Chomp was undertaking
excavation work as part of a job that it had been doing
in stages since November
2017 at 25-27 Myrtle Street, North Sydney. The stage of work that Chomp was
carrying out in July 2018 was
the subject of a work approval form that had been
signed by Chomp’s client on 10 April 2018. That form described the work as
“hand demolition and earthworks” for an agreed fixed price
and “rubbish removal” to be paid for in accordance with a
schedule of rates.
- Mr
Tsompanidis gave evidence that he obtained a copy of the geotechnical report for
the North Sydney site before Chomp commenced work.
Chomp tendered a geotechnical
investigation report prepared by Argus Pty Ltd and dated 30 January 2017. That
report described the
outcome of an investigation, the purpose of which was
described as being to assess the ground conditions and feasibility, from a
geotechnical perspective, of the site for a proposed car stacker development. As
I understand the evidence given by Mr Tsompanidis
in cross-examination, the car
stacker involved the construction of a basement in an existing building on the
Myrtle Street site.
In addition to the excavation work for the basement, Chomp
was involved in stripping the interior of the existing building.
- The
geotechnical report included a geological profile of the subsurface conditions
investigated using two boreholes. Whilst the report
described the types of soil
and clay in the fill and residual soil layers, it provided no information about
whether those soils or
clay contained, or were likely to contain, contaminants.
The scope of work described in the report did not include any testing of
the
soil or clay for contaminants, and the report did not address the question
whether the Myrtle Street site or the area in which
it is located was, or was
likely to be, contaminated by manufactured chemicals or process residues as a
result of historical industrial,
commercial, or other activities. Excavated
natural material, including soil and clay, does not comply with the definition
of VENM
in the POEO Act unless it has been excavated from areas that are not
contaminated with such chemicals or process residues, and does
not contain
sulfidic ores or soils. As Mr Tsompanidis agreed in cross-examination, the mere
fact that material is excavated out of
the ground does not mean that it will be
VENM.
- Mr
Tsompanidis gave evidence that, at the time he received the telephone call on 11
or 12 July 2018, Chomp had been disposing of VENM
excavated from the Myrtle
Street site at a waste facility in Kurnell operated by Besmaw Pty Ltd (trading
as Holt Estate). According
to Mr Tsompanidis, Holt Estate representatives had
inspected the Myrtle Street site on 11 or 12 June 2018, after which Holt Estate
had an entered into a contract with Chomp on 13 June 2018 permitting Chomp to
deliver uncontaminated VENM from that site to the Kurnell
facility for payment
of a fee of $19.80 per tonne to Holt Estate. The terms of the contract reserved
to Holt Estate the right to
inspect and test all VENM prior to its delivery to
the Kurnell facility. The terms also included an indemnity by Chomp in favour
of
Holt Estate in respect of any loss, damages, cost or expense resulting from the
delivery of non-VENM from the Myrtle Street site
to the Kurnell facility.
- Mr
Tsompanidis gave evidence that, after receiving the telephone call on 11 or 12
July 2018, he decided to dispose of VENM from the
Myrtle Street site at the Lane
Cove site because this would be more convenient than making the longer trip from
North Sydney to Kurnell.
Mr Tsompanidis gave evidence that, shortly after
receiving the text message with the Lane Cove address, he telephoned either Mr
Ermalos
Psomos or Mr Ioannis Tsirgiannis (both of whom were drivers employed by
Chomp) and told him that they would take some VENM loads
from the Myrtle Street
site to the Lane Cove address for a fee of $50 per load. However, the driver
told Mr Tsompanidis later that
afternoon that he had been turned away from the
Lane Cove site by “a guy who told me it was full and not to come
back”. Mr Tsompanidis then exchanged further text messages with the
caller he had spoken to earlier that morning, who indicated that trucks
could
deliver to the Lane Cove site until 6:00pm that day, or on the following day.
- Mr
Tsompanidis gave evidence that he directed three of Chomp’s trucks to
deliver VENM from the Myrtle Street site to the Lane
Cove site on 13 and 14 July
2018. He personally drove Chomp trucks to the site on two occasions and either
Mr Psomos or Mr Tsirgiannis
drove on a third occasion on 13 July 2018. Mr
Tsompanidis personally drove to the site on one occasion and either Mr Psomos or
Mr
Tsirgiannis drove on a second occasion on 14 July 2018. Mr Tsirgiannis gave
evidence that he drove a Chomp truck to the Lane Cove
site on two occasions on
either 13 or 14 July 2018. Reading Mr Tsirgiannis’ evidence together with
Mr Tsompanidis’ evidence,
it is likely that Mr Tsirgiannis dumped material
on the Land once on 13 July and once on 14 July 2018.
- Chomp
trucks drove through the Sirius Road entrance gates to the Land at 7:36am,
7:45am, and 9:26am on 13 July 2018.
- The
CCTV film shows that the Chomp truck that arrived at 7:.36am was carrying a
trailer. The gates were open, but the Chomp truck
had to wait on Sirius Road, a
short distance back from the gates and directly opposite the large
“Expressions of Interest – Large Land Holding” sign, to
allow another truck to exit. No other signs are visible on or near the gates.
The gatekeeper stands next to the Chomp driver’s
cab and speaks with the
driver while the Chomp truck is waiting. The gatekeeper directs the Chomp truck
to drive down the access
road into the Land immediately after the other truck
has exited the gates.
- The
Chomp truck that arrived at 7:45am was not carrying a trailer and is seen on the
CCTV film stopping between the open gates, where
the gatekeeper can be seen
walking around and speaking with the driver in the Chomp truck, and the truck
stopped behind it outside
the entrance gates, from time to time. At 7:51am, the
gatekeeper gestures for the Chomp truck to proceed further down the access
road
and the Chomp truck and other trucks behind it then begin to drive onto the
Land.
- The
Chomp truck that arrived at 9:26am was not carrying a trailer and is seen on the
CCTV film stopping briefly immediately inside
the gates, where the gatekeeper
appears to speak to the driver before waving the truck down the access road into
the Land.
- Insofar
as the affidavit sworn by Mr Tsompanidis on 19 April 2021 relates to 13 July
2018, it is broadly consistent with the CCTV
film from 13 July 2018. Mr
Tsompanidis gave evidence that the gatekeeper was standing at the gates on each
occasion and directed
him where to drive inside the Land. He did not see any
evidence of the gates having been tampered with or damaged. Each time after
he
began driving into the Land, another person wearing a high visibility vest (not
the gatekeeper) approached the truck and Mr Tsompanidis
handed the person a $50
note and provided further directions about where to dump the material.
- Mr
Tsompanidis gave evidence that he saw that the Land was a large site and that
there were many trucks dumping there. He observed
various people directing the
trucks around the site. The operation did not appear to him to be rushed and he
gave evidence that he
did not suspect that he was not permitted to dump on the
site. Mr Tsirgiannis gave evidence to similar effect.
- Insofar
as the affidavit sworn by Mr Tsirgiannis on 7 May 2021 relates to 13 July 2018,
it is not entirely consistent with the CCTV
film. Mr Tsirgiannis gave evidence
that he paid $50 to the person at the gates before driving onto the Land. The
CCTV film does not
show the driver of any of the Chomp trucks handing anything
to the gatekeeper before proceeding through the gates and down the access
road.
- Mr
Tsirgiannis also deposed in his affidavit, and maintained in cross-examination,
that the gatekeeper asked him what he was carrying
and he answered,
“VENM”. That evidence cannot be tested against the CCTV film
for 13 July 2018, which does not include any audio recording. However, the
demonstrated inaccuracy of Mr Tsirgiannis’ evidence about having paid cash
to the gatekeeper on 13 July 2018 casts doubt on
the reliability of his evidence
that he told the gatekeeper he was carrying VENM.
- Chomp
trucks drove through the Sirius Road entrance gates to the Land at 8:25am and
9:05am on 14 July 2018.
- The
Chomp trucks that arrived at 8:25am and 9:05 am were not carrying trailers and
are seen on the CCTV film driving straight through
the open gates on both
occasions. The gatekeeper was not waiting at the gates.
- The
evidence given by Mr Tsompanidis and Mr Tsirgiannis in their affidavits included
evidence to the effect that the gatekeeper was
waiting at the gates when they
arrived on 14 July 2018 and directed them to drive into the Land. Mr Tsirgiannis
also gave evidence
that he told the gatekeeper that he was carrying VENM and
paid the gatekeeper $50 before driving through the gates. These aspects
of the
evidence of Mr Tsompanidis and Mr Tsirgiannis cannot be accepted in light of the
CCTV evidence, which clearly shows that nobody
was waiting at the open gates
when the Chomp trucks arrived on both occasions on 14 July 2018.
- Mr
Tsompanidis gave evidence in cross-examination that the capacity of each truck
and each trailer was about 6m3 and that this equated
to between 10 and 11 tonnes
of material depending on the nature of the material. I note that this is
consistent with Mr Sullivan’s
evidence in his report dated 8 July 2021
that an 11 tonne truck would have the capacity to hold approximately 6m3 of
soil, on the
basis of a density of approximately 1.8 tonnes per m3 of soil.
This aspect of Mr Sullivan’s evidence was not the subject of
any
disagreement in the subsequent joint expert report of Dr Halim and Mr Sullivan
and was not challenged when Mr Sullivan was cross-examined.
Mr Tsirgiannis also
gave evidence that the capacity of the truck that he was driving was about 6m3
or 7m3. Mr Tsompanidis was unable
to recall in cross-examination precisely
where he dumped the loads that he was carrying in the Chomp trucks that he drove
onto the
Land on the two occasions on 13 July 2018 and one occasion on 14 July
2018.
- Mr
Tsompanidis gave evidence in cross-examination that he was familiar with the
environmental requirements relating to the transport
and disposal of waste, that
he was aware that illegal dumping is a plague on the construction industry, and
that clandestine tipping
operations burden owners with dumped waste and fill. He
was also aware that waste facilities have stringent requirements for the
acceptance and management of waste. He confirmed that the practice at the Holt
Estate waste facility at Kurnell was for Holt Estate
personnel working inside
the facility to immediately notify the facility’s weighbridge of any
dumped material that appeared
not to be VENM and to re-load that material into
the truck that had dumped it. Mr Tsirgiannis also gave evidence describing those
procedures at the Kurnell facility, but emphasised that he had never been
required to re-load his truck.
- Mr
Tsompanidis knew that the Land was not a waste facility, but said in
cross-examination that he understood it to be a construction
site. Mr
Tsompanidis acknowledged in cross-examination that, even though he did not know
the person who called him on 11 or 12 July
2018 and had made no record of the
person’s name, he took no other steps to ascertain whether Chomp could
legitimately dump
its material on the Land before doing so. He sought to explain
this by saying that many construction sites need fill. However, he
agreed that a
construction site invariably has signage and security around it to indicate that
it is a construction site and is required
to display the builder’s name
outside the site. He did not see any such signage when he went to the Land on 13
and 14 July
2018 and gave evidence that he did not recall seeing the large
“Expressions of Interest” sign that had been erected outside
the gates. Mr Tsompanidis repeated several times in cross-examination that the
site looked to him
like “a legitimate construction site”
because there was heavy equipment and people with two-way radios who were
wearing high visibility vests and who “weren’t fidgety or seemed
abnormal to any other job site that needed fill”.
- Mr
Tsirgiannis denied seeing the “Expressions of Interest” sign
outside the Sirius Road entrance gates but said that, even if he had seen it
would not have caused him to question whether he
could lawfully tip the material
in his truck on the Land. Mr Tsirgiannis also said that he didn’t know
whether there was no
signage indicating that a contractor was engaged onsite. He
was simply taking the material to be dumped at the place where Mr Tsompanidis
had told him to do so. Mr Tsirgiannis did not see any building works being
carried out on the Land.
- Mr
Tsompanidis agreed in cross-examination that he did not provide any
documentation to the gatekeeper or anyone else on the Land
to show that what he
was dumping was VENM. Mr Tsompanidis said that there was one man the gate and
two men ith radios in the main
area where people were tipping and “so
there was people there seeing what trucks were dumping”. The
gatekeeper’s actions recorded on the CCTV film on the three occasions when
Chomp drove onto the Land on 13 July 2018 do
not include any inspection of the
material carried in Chomp’s trucks. As I have already mentioned, the
gatekeeper was not present
at the gates at all when the Chomp trucks drove onto
the Land on 14 July 2018. Mr Tsirgiannis’ evidence that he told the
gatekeeper
that he was carrying VENM on 13 and 14 July 2018 is unreliable, for
the reasons I have already explained. The actions of any other
persons stationed
where material was ultimately dumped on the Land are not visible on the CCTV
film.
- It
was put to Mr Tsompanidis in cross-examination that there was no basis for him
to believe that the material that he took and directed
to the Land from the
Myrtle Street site was VENM. Mr Tsompanidis answered that Holt Estate had
“validated” that all of the material from the Myrtle Street
site was VENM. Mr Tsirgiannis also claimed that Holt Estate had determined that
all
material excavated from the Myrtle Street site was VENM. At one point during
his cross-examination, Mr Tsirgiannis said that he knew
the material that he
carried in the Chomp truck was VENM because he had excavated it from the Myrtle
Street site himself. However,
when pressed about how he could tell the
difference between VENM and ENM, Mr Tsirgiannis reverted to relying on Holt
Estate’s
approval for excavated material to be taken to the Kurnell
facility. The claims made by Mr Tsompanidis and Mr Tsirgiannia that Holt
Estate
had positively determined that all material excavated from the Myrtle Street
site would by VENM are not credible. They are
inconsistent with the contract
referred to at [170]
above, which expressly contemplated that some excavated material may be found
not to be VENM and gave Holt Estate the right to turn
away such material.
- Mr
Tsompanidis also gave evidence in cross-examination that the cost incurred by
Chomp in disposing of VENM at Holt Estate’s
Kurnell facility was claimed
by Chomp as a tax deduction. Chomp maintained invoices and receipts relating to
disposal costs for that
purpose. However, Chomp drivers would sometimes pay cash
to dump VENM at a “DA approved site” because “the
people on-site want cash because they’re afraid that people aren’t
going to pay once they tip a certain amount
of loads”. When Mr
Tsompanidis directed his driver to take loads to the Land on 13 July 2018, he
told him to pay $50 in cash for each load.
Chomp kept no records of the payments
it made to dump material on the Land. Mr Tsompanidis agreed that he had not
instructed the
driver to get a receipt for the $50 payments and sought to
explain this by saying: “I wasn’t expecting the person to vanish,
and I couldn’t follow up on billing that”.
- As
I have already stated at [163] above, there is no evidence that the person
“vanished”. On the contrary, Mr Tsompanidis continued to
pursue him by text messages sent between 15 and 23 July 2018 asking whether more
loads
would be accepted, without ever taking any steps to identify the person he
was dealing with or to check his authority to permit Chomp
to dump material on
the Land. Contrary to Mr Tsompanidis’ evidence in cross-examination, he
could have followed up invoicing
or receipts for the loads dumped by Chomp on 13
and 14 July 2018 in any of his messages sent between 15 and 23 July 2018, if he
had
ever intended to do so. Mr Tsompanidis’ messages make no mention of
invoicing or receipts. Mr Tsompanidis’ evidence that
he intended to follow
up on tax invoices for the cash payouts is not credible.
- On
the basis of the evidence of Mr Tsompanidis and Mr Tsirgiannis summarised above,
together with the CCTV film, I find that Chomp
intentionally entered the Land
and dumped on the Land material that had been excavated from the Myrtle Street
site on three occasions
on 13 July 2018 and on two occasions on 14 July 2018. I
further find that, on the first of those occasions at 7:36am on 13 July 2018,
the volume of material carried in Chomp’s truck and trailer and dumped on
the Land was approximately 12m3. On each of the four
subsequent occasions, the
volume of material carried by Chomp’s truck was approximately 6m3. The
total volume of material dumped
on the Land by Chomp on 13 and 14 July 2018 was
approximately 36m3, being approximately 2.5 per cent of the 1,427.3m3 of
material
that Rove discovered on the Land on 16 July 2018 and subsequently
removed from the Land.
- Chomp’s
conduct in entering and dumping material on the Land on those five occasions on
13 and 14 July 2018 constituted trespass,
unless Chomp succeeds in establishing
one of its pleaded defences of consent or implied licence referred to at [161] above: Plenty v
Dillon (1991) 171 CLR 635 at 639 (Mason CJ, Brennan and Toohey JJ) and 647
(Gaudron and McHugh JJ); Kuru v state of New South Wales [2008] HCA 26; (2008)
236 CLR 1 at [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Smethurst v
Commissioner of the Australian Federal Police (2020) 272 CLR 177 at [246]
(Edelman J); Roy v O’Neill (2020) 171 CLR 291 at [11] (Kiefel CJ)
and [66] (Keane and Edelman JJ).
- Chomp’s
closing submissions made no mention of its pleaded defence that the unidentified
person who telephoned Mr Tsompanidis
on 11 or 12 July 2018 expressly consented,
with the actual or ostensible authority of Rove, to Chomp entering the Land for
the purpose
of dumping VENM on the Land. To the extent that this pleaded defence
was pressed, I reject it. The evidence does not establish that
the unidentified
caller was an officer of Rove, or that they had actual authority from Rove to
consent to Chomp entering the Land
for that purpose (or, indeed, for any
purpose). On Mr Tsompanidis’ evidence, the caller did not even claim to be
calling from
or on behalf of Rove. Mr Demian gave evidence that he had no
knowledge of the mobile telephone number from which the unidentified
caller
contacted Mr Tsompanidis. That aspect of Mr Demian’s evidence was not
challenged in cross-examination. As Mr Tsompanidis
acknowledged in
cross-examination, the caller “could have been anyone”. The
evidence provides no support for the pleaded contention that the unidentified
caller was communicating with Mr Tsompanidis with
the apparent or ostensible
authority of Rove. There is no evidence that Rove had done anything to hold out
the unidentified caller
as having general authority to grant access to the Land,
or authority to grant access to persons intending to dump “clean
loads” on the Land. There is no evidence that Rove had granted any
kind of permission or authority to the unidentified caller and then failed
to
take proper safeguards against the caller inviting third persons to dump
material on the Land. To put it another way, Rove made
no representation of
authority from which it is now estopped from departing. Even if the unidentified
caller had falsely claimed
to have such authority from Rove (which he did not
claim), this would not be sufficient to constitute apparent or ostensible
authority:
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; (2004)
78 ALJR 1045; (2004) 208 ALR 213; [2004] HCA 35 (Pacific
Carriers) at [36]-[38] (per curiam).
- As
referred to at [161]
above, Chomp pleaded and
submitted19[19]hat it entered and
dumped the material on the Land on 13 and 14 July 2018 strictly in accordance
with the consent of the gatekeeper,
who was “apparently in lawful
possession” of the Land at the time, and who was ostensibly authorised
by Rove to grant Chomp a licence to dump VENM on the Land. Chomp submitted
that
Rove “must be found effectively (albeit indirectly) to have consented
to” Chomp’s entries onto the Land and its dumping of material on
the Land on 13 and 14 July 2018.
- I
reject those submissions.
- The
gatekeeper had no right to possession of the Land and Chomp did not submit that
the gatekeeper had Rove’s actual authority
to permit Chomp to enter and
dump of material on the Land. Mr Demian’s unchallenged evidence is that he
did not know the gatekeeper.[20] As
I mention below, Chomp accepted Mr Demian’s evidence that he had kept
control of the key to the Sirius Road entrance gates
and had not consented to
the key being used for facilitate any material being dumped on the Land. There
is no basis for Chomp’s
submission that the gatekeeper “must have
been known to the Plaintiff, as a person having custody, possession and control
of its Property, including the front
gates”. It will be recalled that
the Land was fenced and locked. Employees of Rove or Linx inspected the Land on
a monthly to fortnightly
basis. There is no evidence that Rove’s employees
or contractors were inspecting or monitoring the Land on a daily basis, which
would have alerted Rove to both the gatekeeper’s presence and the
defendants’ activities on 13 and 14 July 2018.
- When
the gatekeeper took physical possession and control of the Land by controlling
access to the Sirius Road entrance gates with
the pin-code padlock, allowing the
defendants and other parties to enter and dump material on the Land and
directing the movement
of their trucks on the Land, he did so without
Rove’s authority. Rove retained its right to exclusive possession of the
Land
at all times. Its servants or agents physically re-entered the Land on 16
July 2018, where the dumped material was discovered. Rove
is entitled to sue
Chomp and the other defendants in trespass for their conduct that interfered
with Rove’s right of possession.
It is no answer for the defendants to say
that they entered and dumped their material on the Land with the permission of
the gatekeeper,
who had taken physical possession and control of the Land as a
trespasser: Smethurst at [120] (Gageler
J);[21] M A Jones et al. (eds),
Clerk & Lindsell on Torts (23rd ed, 2020, Thomson Reuters, 23rd ed,
2020) paragraphs [18-28]-[18-29].
- Chomp’s
submission[22] that the gatekeeper
was ostensibly authorised by Rove to permit Chomp to dump VENM on the Land had
several elements. Chomp accepted
Mr Demian’s evidence that he (as the sole
director of Rove) had not consented to Chomp’s actions, that he had kept
control
of the key to the Sirius Road entrance gates, and that he had not
consented to the key being used for facilitate any material being
dumped on the
Land.[23] However, it was submitted
that the CCTV film showed the gatekeeper opening the gates with a key and that
it must follow that Rove
had “somehow” caused, permitted or
enabled the gatekeeper to have the key and thereby to control the grant of
access to the Land. This was described
as the “critical
element” of the ostensible authority submission. I reject it. Mr
Jones’ evidence referred to at [98]-[99] above establishes that he unlocked the gates on 14
July 2018 using a code that the gatekeeper, Mr Abi Marlu, sent him by text
message.
No key was required to open the gates on that occasion. The CCTV film
for 13 July 2018 shows the gatekeeper opening the gates using
only one hand,
which strongly suggests that he used a code rather than a key on that occasion
as well as on the following morning.
It would be very difficult to insert a key
into a padlock with one hand without using the other hand to hold the padlock
steady.
There is no evidence about how Rove’s padlock came to be removed
from the entrance gates and replaced with the coded padlock
used by Mr Abi Marlu
to open the gates to the Land on 13 and 14 July 2018. I reject the submission
made by Chomp and other defendants
that the Court should infer that the
gatekeeper had the key and that Rove had caused, permitted, or enabled that key
to come into
his possession. As Kitto J said in Jones v Dunkel (1959) 101 CLR
298; (1959) 32 ALJR 395; [1959] ALR 367; (1959) 76 WN (NSW) 278; [1959] HCA 8
(Jones v Dunkel), at 101 CLR 305, “[o]ne does not pass
from the realm of conjecture into the realm of inference until some fact is
found which positively suggests,
that is to say provides a reason, special to
the case under consideration, for thinking it likely that in that actual case a
specific
event happened”.24
[24] is the defendants who bear the onus of
establishing the elements of their defences that rely on ostensible
authority.25 M[25]Abi Marlu could
have given evidence about whether he had a key and, if so, how it had come into
his possession. The defendants chose
not to call him to give evidence by
abandoning their application for a bench warrant for his arrest to enforce
compliance with the
subpoena issued to him. I infer that Mr Abi Marlu’s
evidence would not have assisted the defendants: Jones v Dunkel, supra.
For
those reasons, the evidence does not support a finding that Mr Abi Marlu was in
possession of Rove’s key to the locked
entrance gates. Even if the
evidence had supported a finding that Mr Abi Marlu had Rove’s key, it
would not have supported
a finding that Rove had caused, permitted, or enabled
the key to be provided to Mr Abi Marlu. Indeed, Mr Demian’s evidence
– which was embraced by Chomp – is to the contrary.
- Chomp
relied on the presence of the gatekeeper on the Land, his high visibility vest,
the tipping fee that he was collecting, the
fact that he was directing traffic
and using a two-way radio to communicate, and the fact that the concrete
barriers had been removed,
as “observable facts” that Rove
had caused, permitted, or enabled his activities. It was submitted that those
“observable facts” presented to outsiders “a complex
of appearances as to authority to grant access to property for the particular
purpose of dumping waste material”, citing Pacific Carriers at
[36]. There is no evidence that any of these “observable facts”
were caused or permitted by, or otherwise attributable to, any conduct of
Rove. It was submitted that Rove failed to “take proper
safeguards” to prevent the unauthorised dumping of material on the
Land after “equipping the gatekeeper with a key”. As I have
already explained, the evidence does not support the contention that the
gatekeeper had a key at all, much less that Rove
provided him with, or caused or
permitted him to be provided with, a key. I therefore reject the submission
that, by reason of the
“observable facts”, Rove
conferred ostensible authority on the gatekeeper to grant access to the Land for
“the particular purpose of dumping waste material”, including
VENM. Where a representation of authority is relied upon as conferring
ostensible authority on an officer or agent of
a company, the company’s
conduct must be the source of the representation. It is not enough that the
representation should
come from the person who is said to have been acting with
the company’s ostensible authority: Pacific Carriers at [36].
- At
times, the submissions made on behalf of Chomp and some of the other defendants
appeared to suggest that it would be sufficient
for their defences if they
reasonably believed that the gatekeeper had authority to permit them to enter
the Land. I reject that
suggestion. It is actual permission to enter the
plaintiff’s land, whether express or implied, that will save an
intentional
or negligent entry from constituting trespass. Reasonable but
erroneous belief that the entry is authorised does not
suffice.[26] In any event, the CCTV
for 14 July 2018 shows that Chomp’s trucks drove onto the Land on that day
without any permission from
the gatekeeper, as referred to at [183] above.
- To
the extent that Chomp’s implied licence defence referred to at [161] above relied on the
implication of a licence in fact from the “observable facts”
referred to at [200] above, I reject that defence for the reasons there
explained.
- To
the extent that Chomp’s implied licence defence relies on an implication
in law, the applicable principles were articulated
by Keane and Edelman JJ in
Roy v O’Neill at [67] (references omitted):
“An implication in law is based upon background facts and conventions
rather than reasons of desired public policy. It is akin
to a presumption and it
is based upon ‘an incident of living in society’, ‘the
reasonable requirements of society’,
‘the habits of the
country’, or ‘background social norms’. A licence will only be
implied as a matter of
law if there is nothing ‘in the objective facts
which is capable of founding a conclusion that any such implied or tacit licence
was negated’.”
- The
most common incident of a licence implied in law is a licence to enter the
unlocked path, driveway, or other means of access leading
to the entry of a
suburban dwelling house for the purpose of lawful communication with, or
delivery to, any person in that house:
Roy v O’Neill at [68]-[69]
and the authorities there referred to.
- I
accept the submission made on behalf of Chomp and other defendants that the
circumstances in which a licence will be implied in
law (absent objective facts
negating a licence) are not limited to established categories of circumstances.
However, the defendants’
submissions did not identify any conventions or
requirements of society that would warrant the implication of a licence in law
for
them to enter and dump waste on the Land without the express consent of the
owner of lawful occupier of the Land, particularly in
circumstances where
neither the person transporting the material nor the owner or occupier have made
enquiries capable of establishing
that the material can lawfully be received on
the Land. The dumping of the material on the Land was not permitted by any
development
consent. It was submitted on behalf of Mr George Abousleiman that
development consent was not required by reason of Division 15 of
Part 2 of the
State Environmental Planning Policy (Exempt and Complying Development Codes)
2008 if the fill imported to the Land contained only VENM. For the reasons
explained at [208],
[218], [229], and [248] below, the evidence
does not establish that the material dumped on the Land by any of the defendants
to these proceedings was VENM,
with the exception of Mr Daniel Gawidziel.
Irrespective of whether the material dumped by the defendants comprised VENM or
other
material, it was “waste” as defined in the POEO
Act.27 Wheth[27] the waste could
lawfully be received by the Land would depend on the criteria in clauses 39 and
42 of Part 1 of Schedule 1 to the
POEO Act referred to at [44]-[47] above. There is no
evidence that any of the defendants made any enquiries about matters relevant to
those criteria.
- The
submissions made on behalf of Chomp and other defendants appeared at times to
suggest that it would be sufficient for the implication
of a licence in law if
they took reasonable steps to ascertain whether it was lawful for them to dump
their material on the Land
and believed, albeit erroneously, that it was lawful
for them to do so. I reject that submission. Unlike the cases referred to by
the
defendants, this is not a case in which the existence of reasonable grounds for
a particular belief would have enlivened a statutory
authority to enter the Land
or given rise to the implication of a licence in law to enter the Land to make
further inquiries in the
course of police business: compare, for example, Roy
v O’Neill at [6]. Nor does this case involve any question about
whether a reasonable person in the position of the alleged trespasser would
have
understood that a licence previously granted to them to be on the
plaintiff’s land had been revoked: compare, for example,
Wilson v State
of New South Wales (2010) 278 ALR 74; (2010) 207 A Crim R 499; [2010] NSWCA
333 at [51].
- Had
it been necessary to determine the question, I would have found that Chomp did
not take reasonable steps to ascertain whether
it was lawful to dump its
material on the Land. Chomp was operating in an industry that Mr Tsompanidis
acknowledged to be plagued
by illegal
dumping.[28] Chomp relied on its
belief that the Land was a construction site as the basis for its claimed belief
that the dumping of the material
was lawful. Yet it took no steps to check
whether there was any signage on the Land consistent with it being a
construction site.
Chomp’s acceptance of the invitation from the
unidentified caller on 11 or 12 July 2018, its observation of the
“observable facts” referred to above on 13 and 14 July 2018,
and its observation that the persons on site did not appear to be
“fidgety”,[29]
did not amount to the taking of reasonable steps to ascertain whether it
could lawfully dump its material on the Land.
- A
further reason why each of Chomp’s pleaded defences of consent and implied
licence referred to at [161] above must fail, in addition to all of the reasons
explained at [193]-[207] above, is that the
evidence does not establish on the balance of probabilities that the material
that Chomp dumped on the Land was
VENM. The geotechnical report tendered by
Chomp does not establish that the excavated material was VENM for the reasons
explained
at [169]
above. Holt Estate had inspected the Myrtle Street site before entering into a
contract to accept VENM excavated from the Myrtle
Street site at its Kurnell
facility. However, there is no evidence of the steps involved in Holt
Estate’s inspection, and no
basis upon which to infer that its inspection
involved any soil sampling and testing. I also infer that the inspection did not
satisfy
Holt Estate that all material excavated from the Myrtle Street site
would be VENM, because the contract was for the acceptance of
VENM only and
reserved to Holt Estate the right to inspect and test all material delivered by
Chomp from the Myrtle Street site before
accepting it into the Kurnell facility.
The contract also contained an indemnity given by Chomp in favour of Holt Estate
in respect
of any loss, damages, cost, or expense resulting from the delivery of
non-VENM to the Kurnell facility. That is to say, Chomp bore
the risk that
inspection and testing of the material after excavation might reveal that it was
not VENM. Thus, the evidence does
not establish on the balance of probabilities
that Chomp’s conduct in dumping the material on the Land was within the
scope
of the claimed express or implied licence.
- For
all of those reasons, Chomp trespassed on the Land when it intentionally entered
onto and intentionally dumped material on the
Land at about 7:36am, 7:45am, and
9:26am on 13 July 2018 and at about 8:25am and 9:05am on 14 July 2018. I have
found at [192] above
that the total volume of material dumped by Chomp on those five occasions was
approximately 36m3, being approximately 2.5
per cent of the 1,427.3m3 of
material that Rove discovered on the Land on 16 July 2018 and subsequently
removed from the Land.
- Chomp’s
remaining defences, referred to at [11]-[12] above, are addressed at [261]-[274] below.
Alleged trespass by Haulbuild
- Rove’s
pleaded case against Haulbuild related to one alleged trespass on 14 July 2018,
but Haulbuild admits that its employed
driver, Mr Ben De Bus, drove its truck
onto the Land and dumped material on the Land on three occasions on 14 July
2018.
- Haulbuild
pleads that the material was VENM that it had transported from a building site
at 20-22 George Street in Marrickville under
a contract with Belzig Haulage Pty
Limited. Haulbuild’s director, Mr Adel Awick, gave evidence that Haulbuild
is in the business
of providing “wet hire” services, meaning
that it hired out its truck and driver to transport material for third parties.
- Mr
George Moussa from Belzig Pty Ltd contacted Mr Awick on the afternoon of 13 July
2018 asking if Haulbuild could do a job on 14
July 2018. Mr Awick had previously
met Mr Moussa, and Haulbuild had previously done work for Belzig Pty Ltd. Mr
Awick accepted the
job later that afternoon. He then received two text messages
from Mr Moussa, the first of which read:
“1 x truck n dogs
Hourly
Start 7am
Jobsite – 20 george street marrickville
Tip site – 2 sirius road lane cove west
Radio in on approach
christina sent you
channel 26”
- The
second text message from Mr Moussa read:
“Customer SED”
- Mr
Awick copied the text message to a WhatsApp group thread that he and his
business partner had with Mr De Bus. This was Mr Awick’s
usual way of
communicating work instructions to Mr De Bus.
- The
information in Mr Moussa’s text messages referred to above was the only
information that Haulbuild had about the job. Mr
Awick had never heard of SED
before and did not know who Christina was or how she was connected to the job.
Mr Awick had never been
to the George Street site before. He did not know what
that site was but assumed that excavation was occurring there. Mr Awick made
no
further inquiries about the George Street site or the “tip site”
before Haulbuild’s employed driver, Mr De Bus, carted excavated
material from the George Street site to the Land on 14 July
2018 and dumped it
there. Mr Awick took no steps to ensure that the material was uncontaminated and
took no steps to find out whether
the owner of the “tip site”
had authorised – and wanted – the material to be taken there. Mr
Awick gave evidence that he had relied on Belzig Pty
Ltd or Mr Moussa to ensure
that it was lawful and appropriate for the material from the George Street site
to be taken to the Land.
Mr Awick accepted in cross-examination that he should
have taken steps to find out about both of those matters. Mr Awick also accepted
that the material that he directed Mr De Bus to deliver to the Land might have
contained all manner of contaminants. Mr De Bus simply
followed Mr Awick’s
instructions without making any inquiries about the nature of the material being
excavated from the George
Street site, although he observed when he went to the
site that it had already been excavated down to about two metres below ground
level and that the material being loaded into Haulbuild’s truck and
trailer did not include any building material or concrete.
- Contrary
to the submissions made on behalf of Haulbuild, the evidence does not support a
finding that Mr Awick held an honest belief
that the Land was “a
legitimate tipping site”. The evidence referred to above demonstrates
that Mr Awick simply did not turn his mind to the question, although he now
accepts
that he should have done so.
- When
the EPA first contacted Mr Awick in November 2018 in relation to Haulbuild
dumping material on the Land, Mr Awick obtained from
Belzig Pty Ltd a copy of a
geotechnical report in relation to the George Street site. The geotechnical
report was dated January 2016,
some two and half years before the events that
are the subject of these proceedings. The report included a geological profile
of
the subsurface conditions investigated using four boreholes. Whilst the
report described the types of soil, clay and sandstone in
the topsoil, fill,
residual soil and bedrock layers, it provided no information about whether those
materials contained, or were
likely to contain, contaminants. The scope of work
described in the report did not include any testing of the soil, clay, or
sandstone
for contaminants, and the report did not address the question whether
the George Street site or the area in which it is located was,
or was likely to
be, contaminated by manufactured chemicals or process residues as a result of
historical industrial, commercial,
or other activities. Dr Halim gave evidence
in cross-examination that Marrickville is renowned for “historical
fallout of lead on the atmosphere from all the heavy industry”, so
there would be at least “fallout from atmospheric lead onto the
ground”. ENM, including soil and clay, does not comply with the
definition of VENM in the POEO Act unless it has been excavated from areas
that
are not contaminated with such chemicals or process residues and does not
contain sulfidic ores or soils. Contrary to the submissions
made on behalf of
Haulbuild, the evidence does not support a finding on the balance of
probabilities that the material excavated
from the George Street site that it
had transported to and dumped on the Land did not contain contaminants.
- Mr
De Bus gave evidence that there was no one at the Sirius Road entrance gates on
each of his three trips to the Land on 14 July
2018, but he was met by a
“spotter” after he drove through the gates, who asked him
what he was carrying and directed him as to where to dump the material. The
spotter
asked him to lock the gates behind him when leaving after his third trip
out, and he did so.
- Mr
Awick gave evidence that Haulbuild’s truck and trailer, in which Mr De Bus
carted excavated material from the George Street
site to the Land on 14 July
2018, had a capacity of about 13 or 14m3, being 5m3 in the truck and about 8 or
9m3 in the trailer.
- In
cross-examination, Mr De Bus was able to describe by reference to photographs
the general area of the Land in which he dumped the
material but was unable to
pinpoint more precisely where he had dumped each of the three loads.
- On
the basis of the evidence of Mr Awick and Mr De Bus summarised above, I find
that Haulbuild intentionally entered the Land and
dumped on the Land material
that had been excavated from the George Street site on three occasions on 14
July 2018. I further find
that the total volume of material that Haulbuild
dumped on the Land during its three trips on 14 July 2018 was approximately 39
to
42m3. That equates to between approximately 2.7 and 2.9 per cent of the total
1,427.3m3 of material that Rove removed from the Land
during its voluntary clean
up in 2019.
- Haulbuild’s
conduct constituted trespass, unless it succeeds in establishing its pleaded
defence that it entered the Land and
dumped the material there pursuant to the
implied leave or licence of the person then in possession of the Land which
permitted it
to enter for purpose of depositing loads of VENM in return for a
fee.[30]
- Haulbuild
adopted the submissions of Chomp and Mr Abousleiman in relation to that defence.
I have recorded the substance of those
submissions any my reasons for rejecting
them at [195]-[206] above. Whilst
Haulbuild relied on the unidentified “spotter” who met Mr De
Bus when he arrived at the Land on each occasion, rather than the gatekeeper, as
having the “apparent authority to authorise and control entry to the
site”, Haulbuild relied on similar matters in relation to the
“spotter” as Chomp and Mr Abousleiman relied on in relation
to the gatekeeper and/or implicitly treated the “spotter” as
having gained access to the Land through the gatekeeper. I reject
Hauldbuild’s defence of implied leave or licence for the
reasons explained
at [195]-[206] above and for the
further reason that, as explained at [218] above, the evidence does not establish on the
balance of probabilities that the material that Haulbuild dumped on the Land was
VENM.
- For
all of the reasons above, Haulbuild trespassed on the Land on each of the three
occasions that it intentionally entered and dumped
material on the Land on 14
July 2018.
- Haulbuild
also relies on the defences referred to at [11]-[12] above, which are addressed at [267]-[274]
below.
Alleged trespass by Mr El Kadomi
- Mr
El Kadomi has one truck and trailer that he hires out to third parties on a wet
hire basis. Mr El Kadomi admits that his employed
driver, Mr Angelo Cimone, took
two loads of material excavated from a site in Marsden Park to the Land and
dumped them there on 13
July 2018. Mr El Kadomi did not know this until he
arrived at the Marsden Park site later that day to take over the driving from
Mr
Cimone. Mr El Kadomi himself drove a third load of material from the Marsden
Park site to the Land later during the day on 13
July 2018, but decided not to
dump it there due to the fee of $400 or $450 demanded by the gatekeeper, and his
impression that the
material could not legitimately be dumped on the Land. Mr El
Kadomi attributed that impression to what he described as the gatekeeper’s
attitude.
- Mr
El Kadomi had made no inquiries about the Land as a tip site before driving his
load of material there on 13 July 2018 at the suggestion
of Mr Cimone, who had
already dumped two loads of material there.
- Mr
El Kadomi was unable to adduce evidence from Mr Cimone, who is deceased. Mr El
Kadomi relied on the evidence of Mr Itaoui, who
was the builder at the Marsden
Park site, and Mr El Ahmad, who excavated the material at that site which was
then loaded into Mr
El Kadomi’s truck and driven away by Mr Cimone to be
dumped on the Land. Both Mr Itaoui and Mr El Ahmad contended that the
material
was clean clay. In cross-examination, however, Mr El Ahmad agreed that he could
not be sure that what he had excavated from
the Marsden Park site was virgin
material that had never previously been excavated and was contaminant free. Mr
Itaoui accepted that
he did not know whether the material was virgin material or
fill. Thus, the evidence did not establish that the material was VENM.
Even if
it was VENM, it was “waste” within the meaning of the POEO
Act.[31]
- Mr
El Kadomi gave evidence that his truck and trailer had a capacity of
approximately 6m3 each (making an aggregate capacity of 12m3).
I infer that Mr
Cimone waited until the truck and trailer were at full capacity before driving
to the Land to dump the material on
the two occasions on 13 July 2018. It
follows, and I find, that he dumped a total volume of approximately 24m3 of
excavated material
on the Land on 13 July 2018. By reference to images produced
from the CCTV film shown to him during cross-examination, Mr El Kadomi
identified his truck arriving at the Sirius Road entrance gates at 7:20am and
9:35am on 13 July 2018, driven by Mr Cimone. Having
reviewed the CCTV film, it
is clear that Mr Cimone intentionally drove the truck onto the Land on those two
occasions, and I so find.
Mr El Kadomi admits that Mr Cimone dumped the load
that the truck was carrying on both of those occasions, and I infer that this
was also intentional.
- Although
it was not pleaded in Mr El Kadomi’s defence, his solicitor submitted that
he did not commit any trespass through the
conduct of his employee, Mr Cimone,
because Mr Cimone entered the Land “by leave and licence of the person
in possession of the land”. Rove did not take any pleading point about
Mr El Kadomi raising this defence in closing submissions, and Mr El
Kadomi’s solicitor
did not make any oral submissions expanding on that
very brief written submission. I reject the submission for the same reasons
given
at [195]-[206] above for rejecting
similar submissions made by Chomp, Haulbuild and Mr Abousleiman.
- For
those reasons, Mr El Kadomi trespassed on the Land on two occasions on 13 July
2018 when his employed driver intentionally entered
the Land and dumped 12m3 of
material excavated from the Marsden Park site on each occasion. The total volume
of approximately 24m3
dumped by Mr El Kadomi’s employed driver represents
approximately 1.7 per cent of the total volume of the 1,427.3m3 that Rove
removed from the Land in 2019.
- Mr
El Kadomi adopted Haulbuild’s submissions in relation to the defences
referred to at [11]
and [12] above. Those
issues are addressed at [261]-[274] below.
Alleged trespass by Mr George
Abousleiman
- In
July 2018, Mr George Abousleiman was the owner of a demolition and haulage
business. He admits entering and dumping material on
the Land on three occasions
on 13 July 2018 and on one occasion on 14 July 2018.
- Mr
George Abousleiman gave evidence that he excavated the material that he dumped
on the Land from a site in Punchbowl where a childcare
centre was being
developed. He gave evidence that he reviewed the development consent for the
Punchbowl site before he commenced
work there and satisfied himself that the
soil that would be excavated from the site would not be contaminated. However,
the development
consent that Mr George Abousleiman exhibited to his affidavit
provides contradictory information about the excavation component of
the
development and provides no information reasonably capable of supporting a
belief, much less a finding by the Court, that soil
excavated from the site was
not contaminated. On the one hand, the development consent states:
“Given that the site has been used for only residential purposes and
that there is no proposed excavation, the site is considered
to be consistent
with State Environmental Planning Policy 55 – Remediation of
Land”. On the other hand, the development consent states:
“The development will involve excavation of part of the site to
accommodate the development. Any excavated material not utilised
elsewhere on
the property, will require proper disposal and transport in accordance with the
Waste Avoidance and Recovery Act, and
the Protection of the Environment
Operations Act.” The second statement, that the development will
involve excavation, was plainly correct as Mr George Abousleiman carried out
that
excavation. The correctness of the whole of the first statement is
doubtful. Even assuming the correctness of the statement that
the site had only
been used for residential purposes, this does not provide any rational basis for
drawing inferences about whether
or not the site contained fill or material
generated from demolition of previous buildings on the site, and whether not
such fill
or building waste contained contaminants.
- Mr
George Abousleiman and his brother, Mr Elie Abousleiman, gave the following
evidence explaining how Mr George Abousleiman came
to dump on the Land four
loads of the material excavated from the Punchbowl Site on 13 and 14 July 2018.
- Mr
Elie Abousleiman gave evidence that he had seen an advertisement on Gumtree on
about 11 July 2018 for the dumping of soil at Lane
Cove for $70 per load. He had
telephoned the mobile number listed in the advertisement and spoken to a man
named Mark, who told him:
“Go to 1 Sirius Road, Lane Cove West NSW to
dump the clean fill, there is a guy taking payment at the gate there are other
trucks
going there to dump”.
- Mr
Elie Abousleiman gave evidence that he then spoke with his brother on 12 July
2018 and told him about the advertisement he had
seen and the address of the
site at Lane Cove West. Mr George Abousleiman gave evidence to the same effect
and also said that his
brother gave him Mark’s name and the mobile
telephone number from the Gumtree advertisement, which he then stored in his
phone.
Both gave evidence that they agreed that Mr George Abousleiman would take
the material to be excavated from the Punchbowl site to
the Lane Cove site the
following day, 13 July 2018.
- The
mobile telephone number that Mr Elie Abousleiman says was listed in the Gumtree
advertisement and that Mr George Abousleiman stored
in his phone is the same
number from which Mr Tsompanidis says the unidentified caller telephoned him on
11 or 12 July 2018.[32] As stated
earlier in these reasons, Mr Demian gave evidence that he had no knowledge of
that mobile telephone number.[33]
- As
referred to at [80]
above, Mr Elie Abousleiman went to the Land on 12 July 2018. He gave evidence
that he did so in order to “see if the tip was a true tip of it was a
scam”. He thought it was unusual for there to be a dumping site at
Lane Cove West and he knew that people sometimes put “scam”
advertisements for tipping sites that could not in fact receive material
because they did not have the necessary development consent.
- I
reject Mr Elie Abousleiman’s evidence that he went to the Land on 12 July
2018 in order to check whether it was “a true tip”. That
aspect of his evidence is irreconcilable with his evidence given earlier in
cross-examination to the effect that he understood
that material could only be
dumped at sites that were not waste facilities if the site had a development
consent permitting it to
receive the material, and that he always made sure
before dumping material on any land that the relevant development consent was
in
place. He gave evidence that he would ask the person whether they had a
development consent and ask to see a letter or email confirming
this. He did not
claim to rely on his visual inspection of a site in order to determine whether
material could lawfully be dumped
there. However, he did not claim to have asked
any questions or to have been shown any documents about a development consent
when
he went to the Land on 12 July 2018. Instead, Mr Elie Abousleiman claimed
in cross-examination to have asked “Mark” when he spoke to
him: “Is it a DA approved site, is it a legitimate tip?”.
This had not been mentioned in the account of his conversation with Mark set out
in his affidavit, notwithstanding that he had
understood the importance of
setting out a full account of the conversation in his affidavit. I do not
believe that Mr Elie Abousleiman
asked Mark anything about development consent.
His evidence to that effect was invented in cross-examination as he began to
realise
that his account of his conduct in relation to the Land departed from
what he had described in cross-examination as his usual practice
of checking
about development consent before dumping material on land. I find that the true
reason for Mr Elie Abousleiman’s
visit to the Land on 12 July 2018 was to
dump a load of material there, which he said in cross-examination that he had
done. Mr Elie
Abousleiman is not a defendant to these proceedings.
- As
referred to at [80]
above, Mr Elie Abousleiman recorded an eight second video of the Land on his
mobile phone at 9:17am on 12 July 2018. As stated earlier
in these reasons, the
video shows parts of the Land in the vicinity of part of the access road that
runs through the Land from the
Sirius Road entrance gates. No mounds or piles of
soil or other material are visible on the part of the Land shown in the video,
but the surface of the earth appears to have been disturbed relatively recently.
Three dump trucks are visible in the video and one
of them has a trailer. Mr
Demian gave evidence that he was not aware of the presence of trucks on the Land
on 12 July 2018. The video
does not depict the whole of the area of the Land in
the vicinity of those dump trucks, and it is not possible to ascertain from
the
video whether there were mounds or piles of soil in that area. Mr Elie
Abousleiman gave evidence that he saw a significant number
of piles of soil on
the Land while he was there, many of which were being moved and levelled out by
heavy machinery that he saw there.
- It
was put to Mr Elie Abousleiman in cross-examination that he did not in fact see
any mounds of material on the Land on 12 July 2018.
He maintained that there
were mounds on the Land, notwithstanding that they were not shown in the video.
I accept that evidence,
which is consistent with the presence of dump trucks on
the Land as seen in the video. Moreover, the notion that the whole of the
1,427.3m3 of waste that Rove discovered on the Land on 16 July 2018 had been
dumped there over the course of two days only on 13
and 14 July 2018 is highly
improbable. The evidence adduced in these proceedings is to the effect that the
defendants’ trucks
had a capacity of approximately 6m3 and, where they had
trailer, this bolstered that capacity by an additional approximate capacity
of
6m3. Assuming that each of the 74 trucks that Mr Demian observed entering the
Land on 13 and 14 July 2018 during his review of
the CCTV film had a total
capacity of 12m3, that would account for only 888m3 of material. It is therefore
probable, and I find,
that the total volume of waste discovered on 16 July 2018
had been dumped on the Land over a number of days that extended beyond
the two
days that are the subject of Rove’s claims, being 13 and 14 July 2018. Mr
Elie Abousleiman’s video indicates
that it is likely that waste was dumped
on the Land on 12 July 2018. There is no other explanation for the presence of
the trucks
seen in the video. At least Mr Elie Abousleiman dumped waste there on
that date. As explained at [83] above, 13 and 14 July 2018 are the only days in
respect of which Rove obtained and reviewed CCTV film for the purpose of these
proceedings.
- Mr
Elie Abousleiman added a caption to the video that read: “New tip boys
– Lane Cove West”. He gave evidence that he only sent the video
to his brother, Mr George Abousleiman. He denied posting it on any website or
chat
group or otherwise publishing it more widely than to his brother. I accept
Mr Elie Abousleiman’s denial. It is inherently unlikely
that he would have
chosen to exhibit the video to his affidavit if he had published it on websites
and chat groups, as alleged. I
reject the submissions made on behalf of Rove
which urged the Court to find that Mr Elie Abousleiman had posted the video to a
broader
audience. Those submissions were based on principally on an
interpretation of the demeanour of Mr George Abousleiman when giving
evidence
about the video taken by his brother. I did not interpret his demeanour in the
manner for which Rove contends and, in any
event, I would not consider his
demeanour to be a sound basis for any finding about what Mr Elie Abousleiman did
or did not do with
the video.
- Mr
George Abousleiman gave evidence that he drove a load of material excavated from
the Punchbowl site to the Land on three occasions
on 13 July 2018 and on one
further occasion on 14 July 2018. He described speaking to and taking directions
from a man at the gates,
who was wearing a high visibility vest and had a
two-way radio, on the three occasions on 13 July 2018. He paid the gatekeeper
$210
in cash for the three loads in one transaction when he arrived to dump the
third load on 13 July 2018.
- There
was no one standing at the gate when he arrived on 14 July 2018, so he drove
straight through the gates was stopped after about
70 metres by the man who had
been standing on the gate yesterday, who directed him where to dump the load. He
paid the man $70 in
cash for this fourth load.
- In
cross-examination, Mr George Abousleiman was able to identify the general area
of the Land in which he dumped the four loads of
material on 13 and 14 July
2018, but was unable to identify the precise mounds that he had dumped.
- For
the reasons explained at [235] above, the evidence does not establish on the
balance of probabilities that the material that Mr George Abousleiman dumped on
the
Land was VENM. In cross-examination, he accepted that even VENM is waste and
that it cannot be dumped on a site which is not approved
to accept it. He agreed
that the necessary approval is granted either by the EPA or by the relevant
local council. Mr George Abousleiman
denied that he knew that the Land did not
have approval to receive the material that he dumped there. However, he accepted
that his
only knowledge about the Land was what his brother had told him, that
he did not know who his brother had spoken to and neither he
nor his brother had
dealt with that person previously, that there was no signage indicating that the
Land was a tip or development
site, and that he paid the dumping fee in cash to
the gatekeeper. For the reasons explained above, I have found that Mr Elie
Abousleiman
did not seek any information about any development approval before
Mr George Abousleiman took the Punchbowl site material to the
Land for dumping.
Mr George Abousleiman gave evidence in cross-examination that he knew in 2018
that illegal dumping did occur. He
gave evidence that he used to deal with
builders who were known to him and required material to be dumped on their
construction sites.
He said that, if a builder he did not know requested
material, he would do some checks to make sure that what they were telling him
was true. On his own account, he made no such checks before dumping waste from
the Punchbowl site on the Land.
- Mr
George Abousleiman gave evidence that the truck in which he transported the four
loads of material from the Punchbowl site to the
Land on 13 and 14 July 2018 had
a capacity of 11 tonnes. On the basis of the evidence of Mr Tsompanidis and Mr
Sullivan referred
to at [184] above, this would equate to a volume of
approximately 6m3. Accordingly, I find that Mr George Abousleiman dumped 24m3 of
material
from the Punchbowl site on the Land on 13 and 14 July 2018. This
equates to approximately 1.7 per cent of the total volume of waste
of 1,427.3m3
that Rove discovered on the Land on 16 July 2018 and removed from the Land
during 2019. On the basis of Mr George Abousleiman’s
evidence about the
four occasions on which he dumped the material over that two-day period, I find
that he entered the Land and dumped
the material intentionally on each
occasion.
- Mr
George Abousleiman’s intentional entry and dumping of material on the Land
on the four occasions on 13 and 14 July 2018 constituted
trespass unless he
succeeds in establishing his pleaded defence that he entered and deposited
material on the Land on 13 and 14 July
2018 pursuant to a licence granted by the
person in possession and control of the Land or, alternatively, by the
gatekeeper who was
the ostensible or apparent agent of
Rove.[34]
- Mr
George Abousleiman’s submissions in support of his defence were adopted by
Chomp in support of its similar pleaded defences.
I have already summarised the
substance of those submissions, and explained my reasons for rejecting them, at
[194]-[206] above. Mr George
Abousleiman’s defence fails for those reasons.
- Had
it been necessary to determine whether Mr George Abousleiman took reasonable
steps to ascertain whether it was lawful to dump
the material from the Punchbowl
site on the Land, I would have found that it he did not. He relied on
information conveyed to him
by his brother, the source of which was an
unidentified person with whom neither he nor his brother had had any previous
dealings.
They had not made any inquiries with that person about whether the
Land was an authorised waste facility or a development site, and
Mr George
Abousleiman saw no signage indicating that the Land was either of those things
when he delivered the material to the Land
on 12 and 14 July 2018.
- Mr
George Abousleiman also relies on the defences referred to at [11]-[12] above, which are
addressed at [261]-[274] below.
Alleged trespass by Mr Daniel Gawidziel
- Rove’s
pleaded case against Mr Gawidziel relates to one alleged trespass on 13 July
2018.
- Mr
Gawidziel did not file any notice of appearance or defence in the proceedings,
but he attended the final hearing and informed the
Court that he wished to
appear for himself and defend the case against him. Despite my explaining to him
repeatedly during the hearing
that he would need to file a defence as the first
step in seeking to defend the proceedings and despite my Associate sending to
him
information published by the Court for the assistance of self-represented
litigants, Mr Gawidziel failed to file any defence and
persisted in sending
email communications to my Associate making various assertions concerning the
subject matter of the proceedings.
In fairness to Mr Gawidziel, it must be said
that, despite the explanations and information provided to him, he appeared to
struggle
to comprehend the process of the hearing and what was required in order
to file a defence. Mr Gawidziel’s email correspondence
to my Associate
culminated in an email dated 17 September 2021 attaching a statutory declaration
dated 16 September 2021 in which
he set out what appeared to be his response to
the substance of Rove’s allegations against him. Orders were made
pursuant
to s 14 of the Civil Procedure Act 2005 (NSW) and
rule 2.1 of the Uniform Civil Procedure Rules 2005 (NSW) dispensing
with the requirement for Mr Gawidziel to file a Commercial List Response and
directing that his statutory declaration
be treated as his defence to the claims
made against him and as his evidence in chief. Senior counsel for Rove very
fairly did not
oppose this course.
- The
substance of Mr Gawidziel’s defence, as articulated in his statutory
declaration and as emerged from his evidence in cross-examination,
is that he
directed one of his subcontracted drivers to dump material on the Land on 13
July 2018. In cross-examination and in closing
submissions he said that he
thought the date might in fact be 12 July 2018. The position as to the date was
left in a state of confusion.
The material was excavated from a site at Baulkham
Hills, and Mr Gawidziel tendered a waste classification certificate in respect
of that site which assessed the material as VENM. Mr Gawidziel gave evidence to
the effect that another driver working at the Baulkham
Hills site told him that
a site at Lane Cove was accepting material. Mr Gawidziel then had a telephone
conversation with a man named
“Mitch”, whom he had never met,
and was told that he could dump material there for $50 per bin. Mitch agreed
that Mr Gawidziel could pay
for all of his drivers’ loads at the end of
the day. Mr Gawidziel provided the registration plates of his trucks to Mitch
and
asked for a copy of the development consent for the Lane Cove site, which
Mitch indicated would be sent to him by email. Mr Gawidziel
met Mitch in person
that evening and paid for his drivers’ loads. Mr Gawidziel agreed in
cross-examination that he did not
know at the time whether Mitch was the owner
or operator of the Lane Cove site, or if he was a fraudster. He became concerned
that
he had still not received a copy of the development consent. He drove to
the Land himself that evening and decided not to send his
driver there anymore
when he saw the sign indicating that the Land was for sale.
- Mr
Gawidziel’s evidence in cross-examination was riddled with inconsistencies
about the precise course of his dealings with
Mitch, but nothing material turns
on the inconsistencies. He was not challenged about his evidence that the
material that his driver
dumped on the Land on 13 July 2018 was from the
Baulkham Hills site for which the VENM waste classification certificate was
tendered.
- Mr
Gawidziel gave evidence in cross-examination that his truck and trailer had a
30-tonne capacity in total. Applying Mr Sullivan’s
evidence referred to at
[184] above that each
cubic metre of soil accounts for approximately 1.8 tonnes, I find that Mr
Gawidziel’s driver dumped approximately
16.67m3 of VENM on the Land on 13
July 2018. There is no suggestion that this was done other than intentionally.
VENM is waste within
the meaning of the POEO
Act.35[35]here is no evidence that
Rove consented to that material being dumped on the Land. The circumstances
described in Mr Gawidziel’s
evidence would not give rise to any defence to
the effect that his driver was authorised to enter the Land by a person acting
with
Rove’s actual or ostensible authority. The reasons for this are
essentially the same as my reasons set out at [195]-[206] above for rejecting
those defences pleaded by Chomp. Had it been necessary to determine whether Mr
Gawidziel took reasonable steps
to ascertain whether the owner or person
lawfully in possession of the Land consented to the dumping of his material, I
would have
held that he did not take such reasonable steps. On Mr
Gawidziel’s own evidence, he knew nothing about the person allegedly
named
Mitch, and he understood that it was important in the circumstances to check
that the site was in fact a development site in
need of VENM. To that end, he
asked to be provided with the development consent, but directed his driver to
dump the material on
the Land before he received that development consent, which
was ultimately never provided to him.
- I
note that Mr Gawidziel’s evidence did refer to paying Mitch for
“loads” (plural). As best I was able to understand the
evidence, Mr Gawidziel was referring to the one load delivered by his driver and
those
loads delivered by the drivers of trucks operated by Mr Richard Gawidziel
and Carlo that Mr Gawidziel said were subcontracted to
him on 13 July 2018. As
noted at [254] above,
Rove sues Mr Gawdziel in respect of one incident of trespass only. Rove sued
Carlo and Mr Richard Gawidziel separately and
applied for default judgment
against them. The applications for default judgment are addressed at [288]-[293] below.
- For
the reasons above, I find that Mr Gawidziel trespassed on the Land on one
occasion on 12 or 13 July 2018 when his driver intentionally
drove onto the Land
and dumped approximately 16.67m3 of VENM on the Land. The volume of that dumped
VENM represents approximately
1.2 per cent of the total volume of 1,427.3m3 that
Rove removed from the Land in 2019.
Causation and loss
- As
referred to at [28]
above, the Court of Appeal in SLHD v Macquarie described the categories
of case in which substantial damages may be awarded for trespass to land as
including cases where the trespass
involves loss to the plaintiff. In relation
to that category, the Court stated:36
“[75] There is no doubt that damages awarded for the tort of
trespass may be awarded in a conventional manner consistent with
the cardinal
compensatory nature of damages in tort. Thus, it is open to a plaintiff
upon whose land a defendant has trespassed to seek damages which would put that
plaintiff in the same position
it would have been had the tort not been
committed or, to use the language of Hoffmann LJ (as his Lordship then was), to
recover
the ‘loss which he has suffered in consequence of the
defendant’s trespass’: see Ministry of Defence v
Ashman (1993) 25 HLR 513 at 519.
[76] If, for example, the trespass had caused some
economic loss by preventing the plaintiff’s use of its land (including
the
exercise of any contractual or statutory rights associated with its occupation
of the land), there is no reason in principle
why such loss could not be
recovered...
[77] Damages may also be awarded in relation to any
physical damage to the land in question (or chattel in the case of trespass
to
goods) caused by the trespasser.”
- Rove
submits that each defendant’s trespass materially contributed to Rove
incurring the whole of the costs of removing and
disposing of the 209 piles of
material dumped waste from the Land. The work has been described at [138]-[145] above. The total
cost evidenced by the invoices tendered by Rove was $945,479.64, including GST.
As explained at [151]-[155] above, that total cost includes the fees charged for
the work done by Mr Millard and Mr Sullivan to quantify and classify the piles
of dumped material that Rove discovered on the Land on 16 July 2018, the fees
charged by contractors engaged to remove and dispose
of the whole of all of
those piles, and a fee of charged by Linx for its supervision and management of
the work. Rove characterises
that total cost as the loss that it suffered as a
result of the trespasses. Rove contends that each of the defendants materially
contributed to the whole of that loss, and each defendant is therefore liable
for the whole of that loss.
- The
defendants do not dispute the total costs incurred by
Rove,[37] but they do dispute the
characterisation of the total costs as one loss to which they each materially
contributed.
- Rove
referred to Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd
(2013) 247 CLR 613; (2013) 87 ALJR 505; (2013) 296 ALR 3; [2013] Aust Torts
Reports 82-127; [2013] NSW ConvR 56-314; [2013] ANZ ConvR 13-012; [2013] HCA 10
(Hunt & Hunt), in which French CJ, Hayne, and Kiefel JJ
emphasised the importance of the proper identification of the harm prior to
determining
what acts or omissions caused that harm: at [19], [24], [43]-[45].
Their Honours emphasised that the harm is not to be equated with
the damages
that might ultimately be awarded, and observed that identification of the harm
will be informed by the nature of the
interest infringed and, in some cases, the
nature of the interference to which that interest is subjected: at [25]-[26].
One wrongdoer’s
acts may be independent of another wrongdoer's acts yet
cause the same harm: at [41]. Their Honours were speaking of a cause of action
in negligence, but their observations apply equally a cause of action in
trespass where the plaintiff claims compensatory damages.
- In
the present case, the harm suffered by Rove was the interference with its right
to exclusive possession of its Land when each defendant
entered and dumped on
the Land material that Rove did not want there, and which Rove did not consent
to being dumped there, and the
interference with its economic interests that
flowed from the need to remove and dispose of that material. Rove does not
contend
that it suffered a diminution in the value of the Land or economic loss
by reason of an inability to use the Land for a period of
time while the dumped
material remained on the Land. Each defendant’s trespass was committed
– and the resulting harm
was inflicted on Rove – independently of
each other defendant. The evidence that I have summarised in detail above shows
that
each defendant received information suggesting that material could be
dumped at the Land from an advertisement, a telephone call
or other conversation
that did not involve any other defendant. There is no evidence that any
defendant was known to any other defendant.
Each of them had separate dealings
with “Mark”, “Mitch”, or an unidentified
caller, and with the gatekeeper. Each defendant transported their material to
the Land from separate building
sites in disparate locations throughout Sydney.
The defendants dumped that material on the Land on separate occasions over the
course
of 13 and 14 July 2018. Rove suffered a separate harm on each occasion of
unauthorised entry and dumping on the Land. Each separate
harm was of the same
nature, and was ameliorated in the single remediation operation that Rove
undertook during the period between
February and July 2019. However, the single
remediation operation does not alter the fact that each defendant caused a
separate harm
on each occasion when that defendant entered and dumped material
on the Land. Each defendant is thus liable to pay compensatory damages
that
would put Rove in the same position it would have been in if that defendant had
not committed the trespass that resulted in
the separate harm that I have
identified. The total costs of the remediation operation represents the starting
point for assessing
the quantum of compensatory damages payable by each
defendant, as discussed further below.
- The
submissions made on behalf of Rove erroneously equated the whole of the cost of
its remediation operation with the harm occasioned
by each defendant’s
trespass, contrary to Hunt & Hunt. The present case is very
different from the case of Hunt & Hunt, where the respondent lender
had suffered one harm, being its inability to recover the moneys advanced, and
there were two conditions
that had caused that harm: (a) the loan agreement was
void because the borrower’s signature had been forged; and (b) the
mortgage
document did not contain a debt covenant. A fraudster was responsible
for (a), and the lender’s solicitors (the appellants)
were responsible for
(b).[38]
- Chomp’s
submissions to the effect that there was one harm because the evidence did not
establish the weight and volume of the
material dumped by each defendant, the
number of stockpiles each defendant dumped, and the precise location of those
stockpiles on
the Land, were infected by the same
error.[39] Irrespective of whether
the material dumped by each defendant contained asbestos, the material was waste
within the meaning of the
POEO Act. Rove did not want any of the waste on the
Land, which it was in the process of selling, and so removed all of it.
Haulbuild’s
submission that Rove was only required to remove asbestos
waste from the Land in order to comply with its obligations to the purchaser
of
the Land, and could have left non-asbestos waste dumped by the defendants in
situ, is contrary to the evidence referred to at
[139] above. The removal
of all of the waste dumped by each defendant was the natural and probable
consequence of that defendant’s
trespass: TCN v Anning at [100],
[103]-[104] (Spigelman CJ, Mason P and Grove J agreeing). Difficulties in
precisely identifying and quantifying the waste
dumped by each defendant, and
whether that waste contained asbestos waste, are relevant to the quantification
of the compensatory
damages payable by each defendant for the separate harm
caused by its trespass. Those difficulties do not warrant the harm being
characterised as one harm, in my opinion.
- It
is not strictly necessary to address the defendants’ alternative
submissions that, if they are each liable for the whole
of the costs of
Rove’s remediation exercise, that liability is a single
“apportionable loss” within the meaning of s 34 of the
Civil Liability Act that should be apportioned between them and other
third parties as concurrent wrongdoers pursuant to s 35 of that Act. I make the
following brief observations in case they become relevant in the context of any
appeal.
- The
alternative submissions of the defendants, and the submissions made on behalf of
Rove, assumed that Rove’s claim was a claim
for economic loss
“arising from a failure to take reasonable care” and
therefore an “apportionable claim” within the meaning of s
34(1)(a) of the Civil Liability Act. In my opinion, that assumption was
incorrect. In order for s 34(1)(a) to apply, it is necessary for the absence of
reasonable care to have been an element of the cause of action on which the
plaintiff
succeeded: Rahme v Benjamin & Khoury Pty Ltd (2019) 100
NSWLR 550; [2019] NSWCA 211 at [135]- [137] (Macfarlan JA, Bathurst CJ and
McCallum JA agreeing). In the present case, negligence was neither pleaded as an
element of the causes
of action in
trespass,[40] nor found as a matter
of fact giving rise to the defendants’ liability for trespass. It follows
that Rove’s claim, if
properly characterised as a single claim contrary to
my conclusion above, is not an “apportionable claim” within
the meaning of s 34(1)(a), that s 35 of the Civil Liability Act therefore
does not apply. That conclusion does not depend on s 34A of the Civil
Liability Act and whether or not the defendants intended to cause the
economic loss that is the subject of Rove’s claim.
- If
it had been necessary to determine whether the defendants intended to cause the
economic loss, I would have held that Chomp’s
conduct described at [159]-[209] above exhibited
contumelious disregard for Rove’s rights. In particular, Mr Tsompanidis
pursued the opportunity to dump material
on the Land without making any proper
inquiries to ascertain whether waste could lawfully be dumped there, and whether
the owner
or lawful occupier of the Land wanted or agreed to receive the waste.
Notwithstanding his knowledge of the environmental laws relating
to the
transport and disposal of waste, and his knowledge that illegal dumping was a
plague on the construction industry, and that
clandestine tipping operations
burden land owners with unwanted waste and fill, Mr Tsompanidis was content to
dump material on the
Land for payment of a cash fee on the word of an
unidentified caller and the unnamed gatekeeper, in circumstances where he knew
that
the Land was not a waste facility and he did not see any signage indicating
that the Land was a construction site. I would have held
that this conduct
displayed an utter lack of concern for whether Rove would suffer loss as a
result of Chomp dumping waste on the
Land, but that it fell short of amounting
to an intention to cause loss to Rove. The case is distinguishable from IBEB
Pty Ltd v Duncan [2011] NSWCA 368, in which the defendant had deliberately
provided false information to the purchaser about the business being sold, with
the intention
that the purchaser would act on that false information.
- I
would have held that Haulbuild’s conduct referred to at [211]-[225] above did not
involve contumelious disregard for Rove’s rights and did not exhibit an
intention to cause loss to Rove. In
instructing Mr De Bus to cart the material
from the George Street site to the Land and dump it there, Mr Awick was relying
on instructions
that he had received from Mr Moussa of Belzig Pty Ltd, which had
engaged Haulbuild for the job. Mr De Bus in turn relied on instructions
from Mr
Awick. Mr Awick readily accepted in cross-examination that he should have made
further inquiries. That concession, made with
the benefit of hindsight,
constitutes carelessness rather than contumelious disregard for Rove’s
rights, and falls a long way
short of an intention at the time to cause loss to
Rove. Section 34A of the Civil Liability Act does not exclude a defendant
who is otherwise a “concurrent wrongdoer” in respect of an
“apportionable claim” by reason of carelessness, or even
gross negligence: Kayteal Pty Ltd v Dignan [2011] NSW ConvR 56-280;
[2011] NSW Titles Cases 80-138; [2011] NSWSC 197 at [64]- [74] (Brereton J, as
his Honour then was).
- I
would have held that Mr El Kadomi’s conduct referred to at [227]-[232] above did not
support a finding the he intended to cause loss to Rove. Although he is
responsible for his employee’s conduct,
Mr El Kadomi had no involvement in
Mr Cimone’s decision to dump material on the Land. Mr El Kadomi made the
decision not to
dump the only load of material that he personally transported to
the Land. For the same reasons, Mr El Kadomi cannot fairly be said
to have acted
with contumelious disregard for Rove’s rights, in my opinion.
- As
referred to at [234]-[252] above, Mr George Abousleiman dumped waste on the
Land on the basis of his brother’s telephone conversation with an
unidentified
person, without making any proper inquiries about whether the Land
could lawfully receive the waste and without identifying any sign
indicating
that the Land was either a waste facility or a development site. I characterise
this conduct in the same way as Chomp’s
conduct referred to above. It
displayed contumelious disregard for Rove’s rights, but fell short of
exhibiting a positive intention
to cause loss to Rove.
- Mr
Daniel Gawidziel’s conduct referred to at [256]-[260] above exhibits
carelessness in failing to ensure that he received a copy of the development
consent promised by Mitch before allowing
his subcontracted driver to dump
material at the Land. In my opinion, his conduct falls short of contumelious
disregard for Rove’s
rights and does not support a finding that he
intended to cause loss to Rove.
- I
now turn to the assessment of the compensatory damages to which Rove is entitled
against each defendant for the separate harm that
it caused. The measure of
damages is that which accords with the compensatory principle of putting Rove in
the same position it would
have been if that defendant had trespassed and dumped
waste on the Land.
- Because
neither Rove nor the defendants are able to identify the precise material that
each of the defendants dumped, the assessment
of those compensatory damages as
against each defendant cannot be undertaken by quantifying the costs incurred by
Rove in removing
that precise material. Contrary to the defendants’
submissions, this does not relieve the Court of the obligation to assess
damages
as best it can on the basis of the available evidence, provided that it has a
rational foundation to make an estimate. It
is for the plaintiff to adduce such
evidence as is reasonably available that will provide that rational foundation:
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; (1991) 66 ALJR
123; (1991) 104 ALR 1; [1991] HCA 54 (at 174 CLR 83, per Mason CJ and Dawson J).
Rove has provided that rational foundation in this case by adducing evidence
from Mr
Millard of the total cubic metre volume of waste that was discovered
dumped on the Land on 16 July 2018, adducing documentary evidence
of work done
to remove that material and the costs of that work (including the difference
between the cost per cubic metre of removing
and disposing of asbestos waste
compared to other waste), and by adducing evidence from each of the defendants
in cross-examination
about the cubic metre capacity of their trucks and the
number of occasions on which each of those trucks dumped material on the
Land.
- The
starting point for the quantification of the compensatory damages payable by
each defendant is that the total cost incurred by
Rove in removing 1,427.3m3 of
waste from the Land and disposing of that waste was $945,479.64, which would
equate to $662.43 per
cubic metre. However, applying that rate to the volume of
material dumped by each defendant would incorporate part of the cost of
removing
and disposing of asbestos waste into the damages payable by each defendant in
circumstances where Rove has not established
that any defendant’s material
in fact contained asbestos waste. Whilst the defendants bore the onus of proving
their contention
advanced for the purpose of their leave or licence defences
that their material was free of asbestos waste, Rove bears the onus of
proving
that the defendants’ waste did contain asbestos if compensatory damages
are to be awarded against them by reference
to the cost of removal and disposal
of asbestos waste. In my opinion, the approach that best gives effect to the
compensatory principle
in all the circumstances is to divide the remediation
costs into two components for the purpose of quantifying the damages payable
by
each defendant:
- (1) the total
costs of $603,920 incurred for the removal and disposal of the
waste,[41] which were charged at the
rate of $521.38 per cubic metre for asbestos waste and $323.76 per cubic metre
for waste that did not contain
asbestos;[42]
- (2) all other
remediation costs paid by Rove, which amount to
$341,559.64,[43] or $239.30 per
cubic metre.[44]
- I
reject the submissions made on behalf of Haulbuild and Mr George Abousleiman
that the $84,589.07 supervision fee paid to Linx should
be excluded from the
second component of remediation costs above for the purpose of assessing
compensatory damages. There is no principled
basis to exclude those costs. As Mr
Demian explained in cross-examination, Rove was a land-holding company and it
subcontracted the
management and supervision of the work to Linx, which had the
staff to provide those services. There is no evidence that the amount
of the fee
for managing and supervising the work, which involved several contractors
working on site at various times over the period
of approximately six months
between February 2019 and July 2019, was excessive.
- Applying
the rates set out above, the compensatory damages to be awarded in favour of
Rove to are to be quantified by applying a cubic
metre rate of $563.06 to the
cubic metre volume of material that each defendant dumped on the
Land.[45] Given the wide variation
in the volume of the 209 piles identified in Mr Millard’s report, I
consider that this is a more accurate
approach to quantification than the
approach suggested by Chomp based on attributing a number of piles to each
defendant out of the
209 piles.
- On
the basis of the cubic metre rate of $563.06 referred to above, together with my
earlier findings about the volume of material
dumped on the Land by each
defendant, I quantify the compensatory damages to be awarded against each
defendant as follows:
- (1) $20,270.16
against Chomp, which dumped a total volume of approximately 36m3 on the
Land;
- (2) $23,648.52
against Haulbuild, which dumped a total volume of approximately 42m3 on the
Land;
- (3) $13,513.44
against Mr El Kadomi, whose employed driver Mr Cimone dumped approximately 24m3
on the Land;
- (4) $13,513.44
against Mr George Abousleiman, who dumped approximately 24m3 on the Land;
and
- (5) $9,386.21
against Mr Daniel Gawidziel, whose subcontracted driver dumped approximately
16.67m3 on the Land.
- Rove’s
closing submissions made no mention of its pleaded claim for aggravated damages.
That claim is therefore taken to be
abandoned.
- It
remains to consider Rove’s claim for exemplary damages.
- Exemplary
damages are punitive rather than compensatory in nature. They are awarded to
express the court’s disapproval of, and
to punish, conduct of a defendant
who has been guilty of conscious wrongdoing in contumelious disregard of the
plaintiff’s
rights, and to deter conduct of that nature by the defendant
and by other like-minded persons. There is no necessary proportionality
between
compensatory and exemplary damages: XL Petroleum (NSW) Pty Ltd v Caltex Oil
(Australia) Pty Ltd (1985) 155 CLR 448; (1985) 59 ALJR 352; (1985) 57 ALR
639; [1985] Aust Torts Reports 80-317; [1985] HCA 12 (at 155 CLR at 461,
per Gibbs CJ, Mason and Wilson JJ agreeing, and 471, per Brennan J, as his
Honour then was), cited with approval
in Lamb v Cotogno (1987) 164 CLR 1;
(1987) 61 ALJR 549; (1987) 74 ALR 188; [1987] Aust Torts Reports 80-124; (1987)
5 MVR 449; [1987] HCA 47 (at 164 CLR 9-10); TCN v Anning, at [157] and
[166] (Spigelman CJ, Mason P and Grove J agreeing).
- Consistently
with those principles, exemplary damages should be awarded against Chomp and Mr
George Abousleiman, but not against Haulbuild,
Mr El Kadomi, or Mr Daniel
Gawidziel, for the reasons explained at [270]-[274] above.
- Rove
submitted that exemplary damages should be awarded in such amount as the Court
thinks fit. In order to achieve the deterrence
objective referred to above, it
is my opinion that exemplary damages should be awarded in an amount which makes
it prohibitively
costly for Chomp, Mr George Abousleiman, and other persons
involved in the transport and disposal of waste to dump material on land
without
first taking proper steps to ascertain whether the owner or lawful occupier
consents to receive the material. In my opinion,
the determination of such an
amount in the case of Chomp and Mr George Abousleiman would be informed by
evidence of the revenue they
earned from carting each load of material to the
Land. There was no evidence before the Court would facilitate an approximately
calculation
of that revenue. Doing the best I can in the circumstances, I
consider that $5,000 per load is an amount of exemplary damages that
appropriately marks the Court’s disapproval of the conduct of Chomp and Mr
George Abousleiman’s conduct, and that will
also have the intended
deterrent effect. It follows that exemplary damages will be awarded against
Chomp in the amount of $25,000
and against Mr George Abousleiman in the amount
of $20,000, in addition to the compensatory damages referred to above.
- I
acknowledge that the amount of $5,000 per load is significantly less than the
penalties payable in respect of an offence under s
143 of the POEO Act. However,
I do not consider that the criminal penalty imposed in aid of the protection of
the environment should
be regarded as a guide to the amount of exemplary damages
that appropriately marks disapproval of conduct interfering with Rove’s
right of exclusive possession of its land and achieves the desired deterrent
effect. The POEO Act and the tort of trespass to land
have different objects.
- Rove
also sought interest under s 100 of the Civil Procedure Act 2005 (NSW).
Such interest will be awarded in respect of the awards of compensatory damages
for the period from 14 July 2018 until the date
of judgment. Such interest is to
be calculated in accordance with Practice Note SC Gen 16 – Pre-judgment
interest rates. Exemplary damages do not bear interest until the date of
judgment: TCN v Anning at [166] (Spigelman CJ, Mason P and Grove J
agreeing).
Rove’s applications for default judgment
- Rove’s
pleaded case against Carlo relates to one alleged trespass on 13 July 2018.
Carlo has not filed a defence or played any
active role in the proceedings, and
did not appear at the final hearing.
- Rove’s
pleaded case Mr Kataieh relates to one alleged trespass on 13 July 2018. Mr
Kataieh has not filed a defence or played
any active role in the proceedings,
and did not appear at the final hearing.
- Rove’s
pleaded case against Mr Richard Gawidziel relate to one alleged trespass on 13
July 2018. Mr Richard Gawidziel has not
filed a defence or played any active
role in the proceedings and did not appear at the final hearing. Mr Daniel
Gawidziel sought
to represent Mr Richard Gawidziel, but I declined to grant
leave to Mr Daniel Gawidziel to do so.
- Rove
filed a notice of motion on 16 February 2021 seeking default judgment against
Carlo, Mr Kataieh, and Mr Richard Gawidziel for
damages in an amount to be
assessed. On the last day of the final hearing, Rove moved on that motion and
adduced evidence of service
of the statement of claim in each of those
defendants.
- The
evidence that Rove relied on for the purpose assessing the quantum of damages
sought against each of those three defendants by
way of default judgment was
limited to Mr Demian’s evidence of the remediation operation and the total
costs thereof in his
affidavit sworn on 12 February 2021. That evidence does not
enable the Court to assess the quantum of damages that should be awarded
by way
of default judgment against each of Carlo, Mr Kataieh and Mr Richard Gawidziel
in respect of the undefended claim that each
of them trespassed the Land on 13
July 2018. There is no evidence that would provide a rational basis for the
Court to estimate the
amount of material that each of them dumped on the Land
and to then quantify compensatory damages by reference to the total remediation
costs in the manner set out at [275]-[280] above. Accordingly, there will be an award of
nominal damages of $100 each against Carlo, Mr Kataieh and Mr Richard
Gawidziel.
- I
note for completeness that Rove did not move on the notice of motion for default
judgment against Empire Transport Solutions Pty
Ltd, Mr Jones, or Mr Daniel
Gawidziel. The claim against Mr Daniel Gawidziel has been determined on the
basis of his defence filed
and evidence given during the final hearing. As
referred to at earlier in these reasons, Rove discontinued its claim against Mr
Jones
during the final hearing and informed the Court that it no longer wished
to press its claim against Empire Transport Solutions Pty
Limited. As no notice
of discontinuance was filed in relation to that defendant, there will be an
order dismissing the proceedings
against it so as to formally dispose of that
claim.
Conclusion and orders
- For
all of the reasons above, the orders of the Court are as follows:
- (1) Judgment in
favour of the plaintiff against the first defendant, Chomp Excavation &
Demolition Pty Ltd:
(a) for compensatory damages in the sum of $20,270.16, plus interest on that sum
pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period
from 14 July 2018 calculated in accordance with Practice Note SC Gen 16; and
(b) for exemplary damages in the sum of $25,000.
- (2) Judgment in
favour of the plaintiff against the second defendant, Carlo Excavations Pty Ltd,
for nominal damages in the sum of
$100.
- (3) Judgment in
favour of the plaintiff against the third defendant, Haulbuild Pty Ltd, for
compensatory damages in the sum of $23,648.52,
plus interest on that sum
pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period
from 14 July 2018 calculated in accordance with Practice Note SC Gen 16.
- (4) Dismiss the
plaintiff’s claim against the fourth defendant, Empire Transport Solutions
Pty Ltd.
- (5) Judgment in
favour of the plaintiff against the fifth defendant, Mr Ahmad El Kadomi, for
compensatory damages in the sum of $13,513.44,
plus interest on that sum
pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period
from 14 July 2018 calculated in accordance with Practice Note SC Gen 16.
- (6) Judgment in
favour of the plaintiff against the sixth defendant, Mr Ahmad Kataieh, for
nominal damages in the sum of $100.
- (7) Judgment in
favour of the plaintiff against the eighth defendant, Mr George Abousleiman:
(a) for compensatory damages in the sum of $13,513.44, plus interest on that sum
pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period
from 14 July 2018 calculated in accordance with Practice Note SC Gen 16; and
(b) for exemplary damages in the sum of $20,000.
- (8) Judgment in
favour of the plaintiff against the ninth defendant, Mr Daniel Gawidziel, for
compensatory damages in the sum of $9,386.21,
plus interest on that sum pursuant
to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14
July 2018 calculated in accordance with Practice Note SC Gen 16.
- (9) Judgment in
favour of the plaintiff against the tenth defendant, Mr Richard Gawidziel, for
nominal damages in the sum of $100.
- I
will hear the parties in relation to costs.
**********
Annexure A
Annexure B
I certify that the 295 preceding paragraphs
are a true copy of the reasons for judgment
herein of Justice Williams
Dated: 24/03/2023
Associate to Williams J
Amendments
25 March 2023 - Cover sheet amendment: Counsel
[1] Plaintiff’s written
closing submissions dated 5 October 2021, paragraph
51.
[2] Plaintiff’s written
closing submissions dated 5 October 2021, paragraphs 5 and
18-24.
[3] See [10]
above.
[4] Plaintiff’s
written closing submissions dated 5 October 2021, paragraph
55.
[5] First defendant’s
written closing submissions dated 5 October 2021, paragraphs 12.2 and
14.
[6] Plaintiff’s written
closing submissions dated 5 October 2021, paragraph 22; first defendant’s
written opening submissions
dated 25 August 2021, paragraph 27; first
defendant’s written closing submissions dated 5 October 2021, paragraph
12.2.
[7] Williams v Milotin (1957)
97 CLR 465; (1957) 31 ALJ 820; [1957] ALR 1145; [1957] HCA 83 (at 97 CLR 474,
per Dixon CJ, Williams, McTiernan, Williams, Webb, and Kitto JJ); McHale v
Watson (1964) 111 CLR 384; (1964) 38 ALJR 267; [1965] ALR 788; [1964] HCA 64 (at
111 CLR 388, per Windeyer J, trying the case at first instance because the
plaintiff and defendant were residents of different
states). The subsequent
appeal in McHale v Watson was concerned only with the cause of action in
negligence and the standard of care
to be applied to the defendant, who was a
child: (1966) 115 CLR 199; (1966) 39 ALJR 459; [1966] ALR 513; [1966] HCA
13.
[8] Irlam v Byrnes (2022) 108
NSWLR 285; [2022] NSWCA 81 at [58] (Adams J) and [131] (Cavanagh J), and the
authorities there cited.
[9]
Section 144AAA was enacted by the Protection of the Environment Operations
Amendment (Asbestos Waste) Act 2018 (NSW), to which assent
was given on 28
November 2018.
[10] Clause 50 of
Schedule 1 defined “regulated area” as the area comprising numerous
local government areas, including the
Lane Cove local government
area.
[11] Part 9.1 in Chapter 9
of the POEO Act makes provision for
exemptions.
[12] Mr
Sullivan’s groups J, K, L and
M.
[13] Mr Sullivan’s
groups A, C, F, H, I and J.
[14]
Mr Sullivan’s groups A, B, C, D and
F.
[15] Mr Sullivan’s
groups A, B, and J.
[16] See [75]
above.
[17] See [139]
above.
[18] Exhibit 2, p
453.
[19] In describing
Chomp’s submissions hereunder, I include submissions made on behalf of Mr
Abousleiman, which Chomp expressly
adopted.
[20] See [102]
above.
[21] Referred to at [18]
above.
[22] Including the closing
submissions made on behalf of Mr Abousleiman on this topic, which Chomp
adopted.
[23] These submissions
were made on behalf of Mr Abousleiman and adopted by Chomp:
T500.
[24] See the observations
of Dixon CJ to the same effect at 101 CLR 304, with which Taylor J
agreed.
[25] See the authorities
referred to at [193] above.
[26]
See [17] and [193] above.
[27]
See [39]-[43] above.
[28] See
[163] above.
[29] See [186]
above.
[30] See the authorities
referred to at [193] above.
[31]
See [39]-[43] above.
[32] See
[163] above.
[33] See [194]
above.
[34] See the authorities
referred to at [193] above.
[35]
See [39]-[43] above.
[36] SLHD v
Macquarie at [75]-[77].
[37] Save
for Chomp’s submission contending for an unspecified adverse inference,
which I have rejected at [77]-[78]
above.
[38] Hunt & Hunt at
[9] and [49] (French CJ, Hayne and Kiefel
JJ).
[39] This submission was
made in support of Chomp’s contention that Rove’s claim was a single
apportionable claim to which
Pt 4 of the Civil Liability Act
applies.
[40] Although it was
referred to in submissions, as referred to at [20]
above.
[41] Exhibit 2, p
453.
[42] See [156]
above.
[43] $945,479.64 less
$603,920.
[44] $341,559.64
divided by 1,427.3m3.
[45]
$323.76 plus $239.30.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2023/274.html
