Blacktown City Council v Wilkie

R v Boag (1994) 73 A Crim R 35 R v Foley [1963] NSWR 1270 R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233 R v Kouroumalos [2000] NSWCCA 453 R v Liberti (1991) 55 A Crim R 120 R v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337 R v O'Neill [1979] 2 NSWLR 582 R v Parkes [2004] NSWCCA 377 R v Sagiv (1986) 22 A Crim R 73 R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533 Rand v Rand [2010] FamCAFC 167 Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 Rotner v The Queen [2011] NSWCCA 207 Sauer v R [2006] NSWCCA 81 Siminton v Australia Prudential Regulation Authority (No 3) [2008] FCAFC 89; (2008) 168 FCR 140 Solicitor General v Jones [2013] EWHC 2579 (Fam) Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444 Wilkinson v Anjum [2011] EWCA Civ 1196; [2012] 1 WLR 1036 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 Witness J A v Scott [2015] QCA 285 Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37 Texts Cited: Borrie & Lowie: the Law of Contempt (4th ed) (LexisNexis, United Kingdom, 2010) Category: Principal judgment Parties: Blacktown City Council (Applicant) Misty Wilkie (First Respondent) Mark Reid (also known as Craig Floyd) (Second Respondent) Graveyard Recycling Pty Ltd (Third Respondent) Representation: Counsel: Mr P McGuire (Applicant) N/A (First Respondent) Mr P Kintominas with Ms K Longin (Second Respondent) N/A (Third Respondent)

Solicitors: Houston Dearn O'Connor (Applicant) N/A (First Respondent) Woolf Associates (Second Respondent) N/A (Third Respondent) File Number(s): 40025 of 2001 Publication restriction:

Mr Floyd Seeks Leave to Withdraw a Plea of Guilty to Contempt Proceedings

1. By his fourth further amended notice of motion (filed on 29 August 2013), the defendant to contempt proceedings, Mr Craig Floyd (also known as Mr Mark Reid), seeks to withdraw a plea of guilty entered in those proceedings on 28 June 2011.
2. I am of the opinion that leave to withdraw his prior plea of guilty ought to be permitted. In summary, the plea was not attributable to a genuine consciousness of guilt on the part of Mr Floyd and there are "issuable" questions as to his guilt.

Mr Floyd is Ordered to Remove Material From Land Owned by a Third Person

1. In the original proceedings, Blacktown City Council ("the council") sought the following relief (Blacktown City Council v Wilkie [2001] NSWLEC 269; (2001) 119 LGERA 255 ("Wilkie") at [4] per Pearlman J): 4. The council seeks a declaration that the four respondents have each carried out or permitted or suffered to be carried out development for the purposes of a tip, waste management facility, garbage depot, recycling yard or like use contrary to the provisions of the Environmental Planning and Assessment Act 1979 ('the EP&A Act'). As against all four respondents the council seeks orders that they: (i) Cease using or causing, permitting or allowing the use of the site for that specified purpose; (ii) Be restrained from causing, permitting or allowing the bringing of any soil, sand, gravel, bricks, other excavated or hard material or demolition material or any other waste on to the site; and (iii) Remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility.
2. Wilkie concerned "a large amount of waste material" deposited on land located at Lot 2 DP781151 on the corner of Grange Avenue and Richmond Road, Marsden Park ("the land") (at [1]). The land was owned by Mr Mario Constantine and leased to Ms Misty Wilkie, who in turn sublet the land to Graveyard Recycling Pty Ltd ("Graveyard"), a company controlled by Mr Floyd.
3. The council commenced Class 4 civil enforcement proceedings against Ms Wilkie, Mr Floyd and Graveyard to remove the waste from the land. Ms Wilkie joined Mr Constantine to the proceedings.
4. The then Chief Judge, Pearlman J, dismissed the claim against Mr Constantine on the basis that he was an innocent party in the deposition of the waste on his land insofar as he did not authorise it, did not consent to the sublease, contacted the council when he became aware of the presence of the waste, and sought to eject Ms Wilkie from the land. A cross-claim brought by Mr Constantine against the council was also dismissed by the Court.
5. However, her Honour did make orders against the remaining three respondents. As against Mr Floyd and Graveyard, Pearlman J found that the material had been deposited by them in contravention of the Environmental Planning and Assessment Act 1979 ("the EPAA"), and therefore, ordered them to remove the illegally deposited material from the land.

History of the Contempt Proceedings

1. On 24 June 2002, Pearlman J found Mr Floyd guilty of contempt of order 5 of the 2001 orders and sentenced him to two months imprisonment.
2. The sentence was suspended for two months until 23 August 2002, to allow Mr Floyd an opportunity to purge the contempt. The suspension was extended on multiple occasions (to 9 September 2002, 1 October 2002, 29 October 2002 and 17 December 2002).
3. But Mr Floyd did not take advantage of the extensions and, as a consequence, he served two months in jail commencing 17 December 2002 until 16 February 2003.
4. On 23 May 2003 Mr Floyd was again found guilty of contempt in further proceedings arising out of his failure to complete the removal of waste from the land in accordance with order 5 of the 2001 orders. This time, Mr Floyd was sentenced to prison for a period of six months (Blacktown City Council v Wilkie [2003] NSWLEC 120).
5. In her reasons for judgment, Pearlman J: 1. found that Mr Floyd had not removed the waste material as required by order 5 of the 2001 orders and continued to disobey that order (at [10]); 2. held that the obligation on Mr Floyd to remove the waste cast by order 5 was a continuing obligation and that it remained on foot and with full force regardless of whether or not a similar obligation came into force on Ms Wilkie (at [17]); 3. held that the Court had the power to punish him for his continuing disobedience by committing him to prison for a longer period than that which he had already served (at [17]); 4. held that the contempt was serious because of the adverse environmental effects of the waste stockpile and because of the need to vindicate the authority of the Court in light of the sporadic and insignificant attempts by Mr Floyd to remove the waste (at [18]-[20]); and 5. committed Mr Floyd to imprisonment for a term of six months, however, in light of: 1. the council's submissions that the sentence should be suspended on the condition that Mr Floyd remove the waste at 500 tonnes per month; and 2. Mr Floyd's submissions that he was unable to remove the waste at 500 tonnes per month due to his personal circumstances at the time, but was able to remove the waste at a rate of 50 tonnes per month (at [24]), held that the sentence should be suspended for a period of six months on the condition that Mr Floyd remove the waste at 50 tonnes per month (at [27], emphasis added ("the 2003 orders")): 27 In accordance with the foregoing, I have concluded that I should commit the second respondent to prison for a period of six months, but that I should suspend that sentence for a period of six months, upon the terms sought by the council except as to the amount of waste to be removed each month, which should be fixed at 50 tonnes instead of 500 tonnes.

Mr Floyd's Application to Withdraw His Guilty Plea

1. Mr Floyd's notice of motion seeking to have the contempt proceedings stayed or dismissed was amended numerous times: 1. an amended notice of motion was filed on 6 December 2011, seeking orders, amongst other things, that: 1. the contempt proceedings be struck out for failing to comply with the rules requiring personal service; as an abuse of process; for a violation of the principle against double jeopardy; or upon a plea of autrefois convict; 2. leave be granted to withdraw the guilty plea entered on 28 June 2011; and 3. Mr Floyd be found not guilty; 1. a further amended notice of motion was filed on 4 May 2012, seeking additional orders, namely: 1. that the 2009 orders be set aside because the consent was elicited by a material mistake; irregularity; illegally; or against good faith; and 2. that the 2009 orders be set aside because they were futile and impossible to perform; 1. a second further amended notice of motion was filed in Court on 18 March 2013; 2. a third further amended notice of motion was filed in Court on 6 May 2013, abandoning many of the orders previously sought; and 3. finally, a fourth further amended notice of motion was filed with leave of the Court on 29 August 2013 ("the notice of motion"), abandoning an order that the 2009 orders be set aside nunc pro tunc and that the contempt count be dismissed or withdrawn.
2. After the decision was reserved, the Court of Appeal handed down the decision of Brown Brothers v Pittwater Council [2015] NSWCA 215; (2015) 209 LGERA 53. That case concerned, amongst other things, my decision refusing to allow contemnors to withdraw their plea of guilty. The contention in that case was that the contemnors had pleaded guilty on the basis of incorrect legal advice relating to the proper construction of consent orders entered into in 2007. The contemnors contended that it was arguable that upon the proper construction of the 2007 orders, particularly when read with the terms of an earlier development consent granted in 1995, that they were permitted to engage in such conduct, and consequently, that legal advice given to them to the contrary prior to the entry of their plea was incorrect.
3. At first instance the Court in Pittwater Council v Brown Brothers Waste Contractors (No 4) [2013] NSWLEC 219 had refused to grant the contemnors leave to withdraw their guilty pleas, concluding that they were attributable to a genuine consciousness of guilt and that there would be no miscarriage of justice if leave was refused. Further, to do so would undermine the public interest in the finality of litigation if the Court were to go behind the making of the 2007 consent orders and would jeopardise public confidence in the administration of justice because of the potential for "the scandal of conflicting decisions". That scandal was based on the premise that, if the pleas were withdrawn, the 2007 consent orders which gave rise to the 2011 contempt proceedings, would conflict with an earlier conviction in 2009 for breach of the same consent orders in respect of the same acts.

Applicable Legal Principles for the Withdrawal of a Plea of Guilty

1. The principles applicable to an application to withdraw a plea of guilty are well settled.
2. By a plea of guilty a person admits the essential ingredients of the offence charged and "no more" (R v O'Neill [1979] 2 NSWLR 582 at 588B and 596C; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 605B and Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 510). But this does not mean that the person is taken to have admitted all of the facts and particulars supporting the charge (Chow at 605B-605D).
3. Of course a person may plead guilty for reasons that extend beyond that person's belief in his or her guilt and the Court is nevertheless entitled to act upon the plea. Hence, in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, Brennan, Toohey and McHugh JJ stated (at 141): A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.
4. The entry of a plea of guilty in such circumstances will nonetheless constitute an admission of all of the essential elements of the offence (see also Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37 at [33]).
5. The following legal principles applicable to a grant of leave to withdraw a plea of guilty have been stated in various cases and were not disputed by the parties: 1. first, a court has a discretion to permit a change of plea at any time prior to sentence (Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 334; Chow at 599B and R v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337 at [4]); 2. second, whether a plea is allowed to be withdrawn is entirely a matter for the discretion of the Court (R v Foley (1963) 80 WNNSW 726 at 727 and Piras v The Queen [2006] NSWCCA 396; (2006) 167 A Crim R 260 at [14]-[15]); 3. third, courts have emphasised that such applications must be approached with caution given the public interest in the finality of litigation (R v Liberti (1991) 55 A Crim R 120 at 122 and R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233 at [31]); 4. fourth, there is no exhaustive statement of the circumstances in which pleas of guilty may be set aside. Each application will turn on its own facts (R v Sagiv (1986) 22 A Crim R 73 at 80-81; Piras at [18] and Lawson v The Queen [2011] NSWCCA 44; (2011) 206 A Crim R 557 at [32]); 5. fifth, although many cases concern an appeal from a conviction based upon a guilty plea where the statutory test is whether a miscarriage of justice has arisen from the fact that the court acted upon the plea, in principle no stricter test should be applied to an application (such as the present) made before conviction (Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [26] citing R v Parkes [2004] NSWCCA 377 at [49]); 6. sixth, while there is considerable public interest in the expeditious conclusion of legal proceedings (Liberti at 122), the principle of finality will not be offended if it is established that there will be a miscarriage of justice if the plea is not allowed to be withdrawn (R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533 at [26] and Brown Brothers at [156] and [208]-[209]); and 7. although discretionary, leave should be granted where the plea has been entered pursuant to some mistake, where the integrity of the plea is otherwise questionable or where it would otherwise lead to a miscarriage of justice (Liberti at 121-122; R v Boag (1994) 73 A Crim R 35 at 36-37 at 39; KCH at [32] and Piras at [18]. In R v Kouroumalos [2000] NSWCCA 453 Wood CJ at CL stated (at [19], quoted in Rotner v The Queen [2011] NSWCCA 207 at [47]): What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question…

Mr Floyd's Evidence

1. Mr Floyd relied on six affidavits in support of his application. First, an unchallenged affidavit of Mr Ryan Jacka, sworn 3 May 2012. Mr Jacka is a senior environmental scientist with SESL Australia. Attached to his affidavit was a report of the same date. The report stated that there was approximately 20,000-30,000 tonnes of mixed waste material on the land, showing a significant contamination with asbestos, which would therefore require offsite disposal at a licenced landfill. It was his conclusion that the material on the land could not be processed in any way to change its classification as Special Waste due to its high level of asbestos contamination.
2. Second, an unchallenged affidavit of Mr Scott Hartog, sworn 10 May 2012. Mr Hartog is a senior project manager employed by Delta Pty Ltd ("Delta"), which specialises in demolition projects, civil works, excavation and asbestos removal. Attached to his affidavit was a report dated 8 May 2012, of a preliminary costing for the clean-up of the land. The report estimated that 33,000 tonnes of material was on the land. If 100 tonnes of material were removed every two months, the total removal costs would be $26,651,268. However, if the entire stockpile was disposed of in a single event, the removal cost would be $4,869,000. But if the material was sorted, recycled and disposed of by coarse screening to separate the asbestos material, the estimated removal cost was $3,753,500.
3. Third, an affidavit of Mr Minas, sworn 27 April 2012. Mr Minas deposed to the instructions given to him by Mr Floyd on 29 November 2010 and 28 June 2011. He stated that he commenced acting "pro bono" for Mr Floyd on 29 November 2010, as a favour. Mr Minas' evidence of his attendance at Court on that day was as follows: 3 On 29 November 2010, when this matter was before his Honour Justice Sheahan, I was appearing in another matter before the District Court. Mr Floyd telephoned me on 29 November 2010 from the Land and Environment Court after his matter had commenced. Mr Floyd said words to the effect: "Could you please come down to Court, the Council is threatening me that if I do not sign their orders I will go to gaol." I told Mr Floyd words to the effect: "I am in Court, and can't really stay with you, but I will just come down and look over the orders". 4 When I arrived, I had a discussion with Mr Shneider and Mr Apps. Mr Shneider said; "Mr Floyd has not complied with previous orders of the Court" I said: "You know the situation that he doesn't have any funds or resources to clean up the site, but Craig has told me he will be able to install a screening machine on site and start doing something about it." Following our discussion, Mr Shneider and Mr Apps then agreed to come to some arrangement. I was obtaining instructions from Mr Floyd as to his ability to install a screening machine. Mr Shneider asked; "Can he install the screening machine bon [sic] site, and dispose of the material every month?" Subsequently negotiations were entered into upon which the parties drafted the Consent Orders. It was my understanding that if Mr Floyd signed the Consent Orders the charge of contempt would not be proceeded with. Some alterations were agreed to Mr Shneider's proposed draft Consent Orders. The Consent Orders were then signed by me and Mr Shneider. I did not appear before the Court, and left before the matter concluded. I said to Mr Shneider; "Could you please hand up the consent orders and mention the matter by consent." I was not aware what orders were made by the Court on that day. Mr Shneider did not contact me on that day as to the orders made. 5 On that basis I advised Mr Floyd that he was required to comply with those consent orders signed on 29 November 2010. I am not certain whether it was on 29 November 2010, or another day, I said to Mr Floyd words to the effect of: "Now what you need to do is start screening and remove the material and keep in touch with Council about your progress."

Evidence of the Council

1. Five witnesses were called by the council. The first was Ms Irene Linkenbagh, a solicitor who acted for the council in the contempt proceedings in 2008. She swore an affidavit dated 19 June 2012.
2. Ms Linkenbagh deposed to the fact that from 2007 and 2009, Mr Floyd was legally represented at various times. This included on 27 November 2008, at the contempt hearing before Biscoe J, where Mr Roger de Robilliard, of counsel, appeared for him. On that occasion, the matter was adjourned but discussions in respect of a set of draft consent orders took place. The next day Ms Linkenbagh sent a copy of the set of draft consent orders to Mr Floyd's solicitors.
3. On 8 December 2008 Mr Floyd's previous solicitors informed Ms Linkenbagh that their instructions had been withdrawn.
4. On 12 February 2009 Ms Linkenbagh had a telephone conservation with Mr Floyd, who indicated that he wanted to resolve the matter because he could not afford to "keep going to court". She responded by stating that the council would be open to "reasonable proposals" to remove the waste. She sought and received instructions from Mr Apps, and the following day she wrote to Mr Floyd and put to him the proposal that the council would support a suspended sentence conditional on him removing 50 tonnes of the material per month or 100 tonnes every two months.
5. Ms Linkenbagh did not appear in court when the matter returned on 18 and 19 February 2009. She left the firm of solicitors handling the matter in June 2009.
6. During her cross-examination, Ms Linkenbagh agreed that Mr Floyd did not participate in the discussions on 27 November 2008, which were conducted between the legal representatives. She also conceded that the reference to "$3.85 million" in her notes of those discussions was a reference to the estimated cost of removing the waste (T100:46-101.17). She acknowledged that she was told that Mr Floyd could not afford to carry out the work, but she noted that he had never provided her with any proof of this claim. Ms Linkenbagh did not view Mr Floyd as credible (T104:38). Nevertheless, she agreed that she knew that it "was going to cost heaps and that the cost was an issue" (T102.27). The council therefore took into account the fact that Mr Floyd was telling it that removing the waste was financially difficult (T102: 37).

Agreed Expert Evidence as to the Size and Nature of the Waste on the Land

1. The following statement of agreed expert facts was tendered by the council: 1. In respect of the experts, Mr Ryan Jacka (expert for Mr Reid) is an environmental scientist and Mr Michael Edwards (expert for Blacktown City Council) is an environmental and engineering geoscientist each with appropriate qualifications to give the opinions referred to below. Mr Marc Jamieson (expert for Blacktown City Council) and Mr Scott Hartog (expert for Mr Reid) are qualified excavation supervisors qualified to give their respective opinions referred to below. The statements below are statements of the experts and there are no material inconsistencies and are agreed by the parties Nature and size of the Stockpile 2. The mixed waste the subject of the proceedings comprises construction and demolition waste including organic waste (plant material) bricks, tiles, concrete, carpet, plastic, metal, glass, paper, fibro and ceramics with a significant soil and clay component. 3. On inspection by Mr Jacka an attempt to screen the material over a 20mm aperture was evident, with the resulting screened material containing significant levels of the foreign materials described in paragraph 2 above. 4. The waste stockpile the subject of the proceedings is approximately 20,000 to 33,000 tonnes. 5. In Mr Jacka's opinion, due the high proportion of foreign material in the stockpile, the material could not satisfy the definition of Excavated Natural Materials (ENM) Exemption (2008) of the NSW EPA Resource Recovery Exemptions which requires "at least 98% (by weight) natural material" (section 6 - definition ENM exemption 2008). Furthermore, the ENM Exemption does not allow material to be "processed" to meet the exemption thus screening the stockpile will preclude the material being classified as ENM. 6. The other possible resource recovery exemption noted by Mr Jacka for a screened mixed construction and demolition waste stream is the "Continuous Process" Recovered Fines Exemption (2010). This would require considerable re-processing of the waste to a - 9.5mn soil fraction with low foreign materials content that cannot contain asbestos. Mr Jacka's inspection of the stockpile identified a significant quantity of broken bonded asbestos fibre cement fragments that would preclude the materials from being reprocessed under any of the resource recovery exemptions. 7. Mr Jacka observed bonded asbestos containing materials (ACM) in all areas of the subject stockpile. The proportion of ACM in the material onsite is considered significant. 8. Mr Edwards obtained four samples of fibreboard from the surface of the subject stockpile at four disparate locations on the stockpile. Mr Edwards assumed that similar samples are to be found throughout the stockpile. 9. Asbestos was identified in the four samples obtained by Mr Edwards and analysed as detailed below. Sample ID Location Analysis Result (EBG) NATA Cross Check (Envirolab) 02211/1 North of main stockpile (Area 1) Chrysotile and amosite asbestos detected Confirmed - sample 74887-1 02211/2 South-east corner of main stockpile (Area 1) Chrysotile, amosite and crocidolite asbestos detected Confirmed - sample 74887-2 02211/3 East of Area 2 Chrysotile asbestos detected - 02211/4 East of Area 1 Chrysotile asbestos detected -

Classification of the Stockpile Material 10. Mr Jacka's opinion of the classification of the material for offsite disposal to a licensed landfill facility is as follows: (a) Based on the NSW OEH (then DECCW) Waste Classification Guidelines 2009, the presence of asbestos in the materials provides an immediate pre-classification as Special Waste (asbestos containing). (b) It is the opinion of Mr Jacka that due to the high proportion of ACM materials observed that all materials onsite, including the entire stockpile of waste, the road surface and any screened materials must be classified as Special Waste (asbestos containing). JACKA P.2 PARA 4. 11. Mr Edwards classification of the material is as follows: (a) Based on the asbestos content, the stockpile would principally be classified as SPECIAL WASTE (Soil Contaminated with Asbestos Cement Pieces) - as per Department of Environment & Climate Change NSW, Waste Classification Guidelines Part 1: Classifying Waste (April 2008). (b) The above classification would be dependent on further chemical analysis of the soil. In accordance with the guidelines above the soil would need to be analysed for its chemical constituents. The analysis is dependent on site conditions. Usual and common analytes within the Sydney area are: - Heavy metals (lead, arsenic, cadmium, chromium, mercury, nickel); - PAH (Polyaromatic hydrocarbons - commonly found in soil around the Sydney area and usually attributed to coal ash or slag); - OCPs (Organochlorine pesticides); - PCBs (Polychlorinated biphenyls - transformer oils etc); - BTEX & TRH (Hydrocarbon fuel and oils). Waste Removal Options Available Based on the Classification of the Stockpile 12. Mr Jacka concluded in relation to potential options for reprocessing and classification under [the] existing NSW EPA Resource Recovery Exemption that: (a) the materials observed on the site show significant contamination with asbestos and as such would be classified as Special Waste (asbestos containing) for the purpose of offsite disposal to a licensed landfill, pending the chemical analysis required by the waste classification guidelines. (b) the material cannot be processed in any way to reduce the classification due to the high level of asbestos contamination. 13. Mr Edwards, assisted by Mr Jamieson, concluded as follows: (a) removal and disposal of the waste would take approximately 44 working days; (b) the estimated cost of removal and disposal based on potential classification as special waste is as follows: Item Calculation Cost Cost as of 1 July: $125/tonne (EPA levy increases each year) PLUS 15% contractor P+O (Profit and Overheads) to cover tipping costs until payment etc. Disposal of material at Blacktown Waste as Special Waste Costs per tonne: $143.75 $3,915,462.00 Tonnes: 27,238 Transport Estimate only - depending on trucks used and weather etc $98,056.80 $3.60/tonne Excavation costs Load-out - Includes excavator and excavator operator - $2.20/tonne $59,923.60 Chemical analysis by laboratory for chemical classification 38 samples @ $260/sample $9,880.00 Air monitoring for asbestos fibre on site during removal Est. $750 per day for 10 monitors for approx. 44 days $33,000.00 1. Bonded Asbestos Supervisor Labour $85/hr $29,920.00 (8 hours - $680/day x 44) $22,880.00 2. Bonded Asbestos Labourer $65/hr (8 hours - $520/day x 44) Supervision - 3 hours a day Environmental Consultant (Qualified Experienced Professional) At $150/hr incl. transport (est. $15,950) $23,250.00 Plus final validation report and sampling of remaining soil (est. $7,500.00) ESTIMATED TOTAL $4,192,372.40 (If material disposed as Special Waste) (excluding GST)

14. Mr Edwards notes the EPA levy is liable to increase. Mr Edwards notes that the disposal costs above are based on the material being classified as Special Waste ($125.00 per tonne), cost of tipping Restricted Solid Waste is approximately $300.00 per tonne. The prices exclude GST. This would apply to some costs and labour. 15. Mr Hartog has given a report and preliminary costing for [the] clean-up of the subject stockpile as follows: Mr Hartog's costing are based on an assumed quantity of 33,000 tonnes (volume 16,500m²); the costs to remove 100 tonnes every two months (Option A) would take a period of 55 years and cost $93,000 per annum at the commencement of the period rising to $1,362,408 per annum (assuming a 10% increase in costs per annum) by the end of the period - a total of $26,651,268.00; the costs to dispose of the entire stockpile in a single establishment (Option B), based on 33,000 tonnes totals $4,869,000.00; and the costs to sort and dispose of reusable material such as concrete and brick with the remainder of the stockpile to be disposed at a single establishment (Option C) would be $3,753,500.00. 16. Mr Hartog's costing for Option B [at paragraph 15(c) above] is broadly consistent with Mr Jamieson's costing [at paragraph 13 (b) above].
15. To the extent that the agreed expert evidence revealed that asbestos was present in the stockpile of waste on the land, this was consistent with an analysis report, relied upon by Mr Floyd, from the Environment Protection Authority Chemistry Laboratory dated 1 May 2001, of a sample taken from the land and forwarded by Graveyard. The analysis revealed that chrysotile asbestos fibre cement material was detected in the sample. I therefore find that since at least the date of the 2001 orders, the waste contained asbestos.

Leave is Granted to Mr Floyd to Withdraw His Guilty Plea

1. Having regard to the evidence outlined above, and authorities examined below, in my opinion, there is a proper basis for concluding that a miscarriage of justice will occur if Mr Floyd is not permitted to withdraw his guilty plea. The reasons for this are, first, I am not sufficiently confident that the plea of guilty was in fact attributable to a genuine consciousness of guilt, and second, there are "issuable" questions about Mr Floyd's guilt, including an arguable available plea of autrefois convict.

The Plea of Guilty Was Not Attributable to a Genuine Consciousness of Guilt

1. The evidence of Mr Floyd and Mr Minas is clear: at no relevant point in time was Mr Floyd advised that a plea of autrefois convict was available to him or a defence of impossibility. Indeed, no defence whatsoever to the charge of contempt was ever discussed with Mr Floyd by any of his legal advisers prior to the entry of his plea.
2. As Mr Minas explained, this was because he was of the opinion that there was no defence to the charge (although Mr Minas' evidence appeared, initially at least, equivocal in this regard, upon further questioning it became clear). Having said this, Mr Minas readily accepted that he did not have specific expertise in this area and that it was for this reason that he wanted to obtain legal advice from a specialist criminal barrister. A suggestion that, as the evidence discloses, was not taken up by Mr Floyd because he could not afford it.
3. In any event, there is no distinction between incorrect legal advice and no advice (see Brown Brothers at [162]).
4. However, the absence of any advice as to available or even potential defences will not matter if Mr Floyd's plea of guilty was in fact attributable to a genuine consciousness of guilt. As the authorities above make clear, Mr Floyd must demonstrate an absence of a genuine consciousness of guilt and identify an "issuable" question about that guilt. Both components must be present if the plea is to be withdrawn. As Simpson J explained in Rotner (at [49]): 49 There are, in fact, two components to the test so stated - first, some circumstance that permits a conclusion that the plea of guilty was not really attributable to a genuine consciousness of guilt, and, second, an "issuable" question about the guilt of the applicant. Neither, alone, is sufficient. As I understand the test, it is necessary for the applicant to point to circumstances that created a doubt about his guilt, as well as circumstances that raise a doubt about his own perception, at the time he entered the plea, of his guilt. (emphasis added)
5. It is not enough, for example, that Mr Floyd felt pressed in some way by legal advice, or the absence thereof, from Mr Minas or statements from various council officers or its legal representatives, or that he entered a plea despite his concerns or misgivings about doing so (Meissner at 143 and 157).

There are "Issuable" Questions About Mr Floyd's Guilt

1. The second limb that Mr Floyd must demonstrate in order for the Court to exercise its discretion to permit him to withdraw his guilty plea is whether there is an "issuable" question as to his guilt.
2. While the existence of a defence or alternative plea does not establish that Mr Floyd did not intend to admit guilt (Meissner at 157), but it can give rise to circumstances that create a doubt as to that guilt.
3. Mr Floyd identified several "issuable" questions or circumstances that create a doubt as to his guilt, none of which, as has been established, were raised by his legal adviser prior to the entry of his plea.

The 2010 Orders May Have Superseded the 2001 and 2009 Orders

1. The first "issuable question" (albeit not raised by Mr Floyd), is that it is more than arguable that the making of the 2010 orders had the effect of superseding the 2001 and 2009 orders. Both the form and substance of the 2010 orders differed markedly from the 2001 and 2009 orders, although the central obligation to remove the waste from the land remained. If the 2010 orders did not supersede the 2001 and 2009 orders, the spectre of inconsistent obligations arises. In other words, it is possible for Mr Floyd to be in compliance with the 2001 and 2009 orders and yet be in breach of the 2010 orders and vice versa. This is problematic because as noted above, the statement of charge refers only to the 2001 and 2009 orders, not the 2010 orders.
2. Although the Court is not required, on this application, to determine the question to finality, its existence is sufficient, in my view, to conclude that a miscarriage of justice would arise if Mr Floyd was not permitted to withdraw his guilty plea.

A Plea of Autrefois Convict May Be Available

1. The second is the availability of the plea in bar of autrefois convict. The common law doctrine of autrefois convict is recognised in, but unchanged by, s 156(1) of the Criminal Procedure Act, which states that: 156 Plea of autrefois convict (1) In any plea of autrefois convict, or of autrefois acquit, it is sufficient for the accused person to allege that he or she has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment, without specifying the time or place of the previous conviction or acquittal.
2. A plea of autrefois convict is, as Mr Floyd properly submitted, a species of double jeopardy. As the majority opined in Pearce v The Queen ([1998] HCA 57; (1998) 194 CLR 610 at [9]-[14] per McHugh, Hayne and Callinan JJ): 9. The expression "double jeopardy" is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be "punished again for the same matter". Further, "double jeopardy" is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment. 10. If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States: "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." That underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy. It also finds reflection in constitutional guarantees such as the Fifth Amendment to the United States Constitution, which states in part: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb". It may be seen as a value which underpins and affects much of the criminal law. But pervasive as it is, this value is not the only force at work in the development of these parts of the common law. Three further forces can be identified. 11. First, as the range of crimes and punishments for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach. 12. Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged. 13. Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct. 14. The fact that double jeopardy is spoken of at several different stages of the process of criminal justice and the presence of other (sometimes competing) forces means that the treatment of double jeopardy has not always been clearly based on identified principles. It is not necessary, however, to resolve all the apparent inconsistencies that can be identified in the application of the rule or rules against double jeopardy in deciding the present appeal, and we do not attempt to do so.

The Orders May Be Impossible to Comply With

1. The second "issuable" question raised by Mr Floyd as to his guilt is whether the orders referred to in the statement of charge to which he pleaded guilty were capable of compliance or whether, as he claims, they were impossible to perform.
2. Neither party addressed the Court on when the impossibility is to be measured. That is to say, as at the date of the making of the orders on 18 February 2009; as at the date of the filing of the original statement of charge; or as at the date of the entry of his plea of guilty on 28 June 2011.
3. In my opinion, the operative date is the date upon which Mr Floyd was committed for contempt, that is to say, the date the statement of charge was first filed in these proceedings, namely, 13 May 2010. This is in conformity with the cases analysed below.
4. But the question is, in any event, somewhat moot because, in my view, the evidence demonstrates that whether the operative date was 2009, 2010 or 2011, there was a very real question as to whether Mr Floyd could have complied with the orders the subject of the statement of charge, given his apparent impecuniosity and given the considerable expense of complying with the orders.
5. It is somewhat trite law that the party who brings a proceedings for contempt bears the onus of proof and must satisfy the elements of the charge of contempt beyond reasonable doubt (Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 534).
6. In order to prove contempt of court involving a breach of an order of the court the plaintiff must, at a minimum, prove the following beyond reasonable doubt: 1. that an order was made by the court; 2. that the terms of the order are clear and unambiguous; 3. that the order was served on the alleged contemnor; 4. that the alleged contemnor had knowledge of the terms of the orders; 5. that the orders are capable of compliance; and 6. that the alleged contemnor has voluntarily and deliberately breached the terms of the order.
7. In respect of the proposition at subparagraph (e) above, the learned authors of Borrie & Lowe: The Law of Contempt (4th ed) have opined as follows (at [6.10], p 140, footnotes omitted): So far as disobedience to a positive order is concerned it has been held that it is the duty of the defendants to enquire and discover the proper means of obeying the order and although it may be a defence to show that compliance with the order was impossible, the burden of proving such impossibility is upon the defendants. In Lewis v Pontypridd, Caerphilly, and Newport Rly Co [(1895) 11 TLR 203], a railway company had been ordered to construct a junction joining their line with the plaintiff's works. The defendants argued that since they never had any funds to build the junction they could not have complied with the order and therefore the breach could not be said to be 'wilful'. The court rejected this contention. The defendants had failed to discharge their burden of proving that compliance was impossible, because they had not shown that they could not have obeyed the judgment.

The Possibility of a Miscarriage of Justice Trumps the Finality of Litigation

1. As counsel for Mr Floyd aptly observed, "the history of these proceedings has undoubtedly been exceptionally protracted having regard to the fact that the orders were originally made in 2001". But, as the Court of Appeal observed in Brown Brothers, however desirable it is to bring these proceedings to a final conclusion, this cannot be at the expense of avoiding a miscarriage of justice (at [208]): 208 Further, both the principle of finality of litigation and that of avoidance of conflicting decisions are invoked to "maintain public confidence in the administration of justice"; in other words to ensure the administration of justice is not brought into disrepute. However, neither principle should be invoked in circumstances where their application could have the effect of perpetuating a miscarriage of justice.

Conclusion

1. Having determined that the plea was not attributable to a genuine consciousness of guilt and that there are "issuable" questions as to his guilt, Mr Floyd must be permitted to withdraw his guilty plea.

Costs

1. Ordinarily the Court would, in Class 4 proceedings where costs follow the event, have no hesitation in awarding Mr Floyd the costs of his application.
2. However, as the procedural chronology at the commencement of this judgment makes tolerably clear, much of the blame for the delay in finalising this application lies at the feet of Mr Floyd. On each occasion that the proceedings were adjourned by him, or orders were made by the Court (often with Mr Floyd's consent) that were not complied with by Mr Floyd, a correlative cost was incurred by the council. In such circumstances it would be grossly unfair to make the council liable for the entirety of Mr Floyd's costs of his application. Likewise, the cost of each iteration of Mr Floyd's withdrawal application ought not be visited upon the council.
3. In my opinion, therefore, a more appropriate costs order is that each party ought to bear their own costs up to the commencement of the oral hearing on 18 March 2013, and that thereafter the council should pay Mr Floyd's costs of the hearing.
4. Having said this, the question of costs was not discussed with the parties and they should be given the opportunity of seeking an alternative costs order if they so desire.

Orders

1. The formal orders of the Court are as follows: 1. leave is granted to the second respondent to withdraw his plea of guilty entered on 28 June 2011; 2. each party is to bear their own costs of the proceedings up to the commencement of the oral hearing on 18 March 2013, thereafter the applicant is to pay the second respondent's costs of the hearing. Any application by either party for an alternative costs order is to be made to the Court within 21 days of the date of the publication of this judgment; 3. the exhibits are to be returned; and 4. the matter is stood over to 19 August 2016 before the List Judge for further directions.

Amendments 11 August 2016 - Typing errors amended: [16] and [54] - formatting [229(e)] - typographical error 33 changed to 33,000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 August 2016