Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam - [2022] NSWLEC 45 - NSWLEC 2021 case summary — Zoe

NSWNSWLEC

Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam

[2022] NSWLEC 45

Land and Environment Court (NSW)|2021-09-28|Before: Moore J, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-09-28

Before

Moore J, Mr J

Catchwords

[1999] HCA 37 R v Shamouil (2006) 66 NSWLR 228

Source

Original judgment source is linked above.

Catchwords

[1999] HCA 37 R v Shamouil (2006) 66 NSWLR 228

Judgment (75 paragraphs)

[1]

TABLE OF CONTENTS Introduction Mr Sami Allam's role with the Company The charges against the Company The charges against Mr Sami Allam Referring to the Defendants A summary of the charges The related interlocutory decisions The 25 August 2021 directions The additional messages proposed to be relied upon by the Prosecutor The Defendants' Notice of Motion The written submissions Introduction The propositions for the Defendants The Prosecutor's response to the proposed orders Representation The hearing The Statement of Agreed Facts The proposed Further Revised Draft Statement of Facts The Prosecutor's document The Defendants' response The scope of this decision Introduction The Prosecutor's categories The relevant statutory provisions The evidence Introduction Additional evidence for the September 2021 hearings Exhibit 3 The Prosecutor's key Mr Pasas's second affidavit The Defendants' further documentary material The Prosecutor's key Introduction Substantial agreement is reached The agreed broad temporal limitation Two agreements covering the majority of the categories The messages are not reproduced Matters of general consideration Introduction The Defendants' general introductory comments The scope of a broad s 136 limitation order The Prosecutor's submissions Attribution of conduct to the Company The messages in Categories J and K The exceptions to the hearsay rule Consideration of the Categories N, O, P and Q messages Introduction The general issue of relevance The issue of a general limitation Category N Introduction The Defendants' position The Prosecutor's position Consideration Category O Introduction The agreed temporal limitation The Defendants' position The Prosecutor's position Consideration Category P Introduction The Defendants' position The Prosecutor's position Consideration Category Q Introduction The Defendants' position The Prosecutor's position Consideration Should there be a general discretionary exclusion? Introduction The submissions for the Defendants The submissions for the Prosecutor Probative value versus danger of unfair prejudice The test in s 135(c) - a waste of time? The addition of messages to Categories J and K Future progression of the matters Directions Annexure A Annexure B Annexure C Annexure D

[9]

The 25 August 2021 directions

On 25 August 2021, at the conclusion of the second phase of these interlocutory proceedings, I made the following directions to permit the third phase (being dealt with in this decision) to be prepared for the hearing scheduled for 27 and 28 September 2021. These directions were in the following terms: 1. By 5 PM on 6 September 2021, the prosecutor is to provide the defendants with: a. a spreadsheet identifying all of the text messages, contained in Tab 2 of Exhibit KB-1 to the affidavit of Kate Bleakman affirmed 12 June 2020, that it intends to rely on in the proceedings; and b. a spreadsheet identifying all of the WhatsApp chats, contained in Tab 34 of Exhibit BJD-1 the affidavit of Benjamin James Dales affirmed 29 March 2021, that it intends to rely on in the proceedings. 2. By 5 PM on 6 September 2021, the prosecutor is to provide the defendants with a document identifying the relevance to a fact or facts in issue in the proceedings of each of the text messages and each of the WhatsApp chats identified in the spreadsheets in Order 1. The prosecutor may do this by way of categories of relevance. 3. Subject to the Court's determination of any advance evidentiary rulings pursuant to s 192A of the Evidence Act 1995 (NSW), the prosecutor shall not be entitled to rely on any text messages or WhatsApp chats other than those that have been identified in the spreadsheets in Order 1. 4. By 20 September 2021, the defendants are to file and serve any Notice of Motion and supporting evidence and submissions in relation to the defendants' foreshadowed application for an advance evidentiary ruling pursuant to s 192A of the Evidence Act 1995 (NSW) in respect of the material identified in the spreadsheets in Orders 1 and 2. 5. By 24 September 2021, the prosecutor is to file and serve any evidence and submissions in response to any application by the defendants for an advance evidentiary ruling in accordance with Order 4. 6. Any application by the defendants for an advance evidentiary ruling filed in accordance with Order 4 is listed for hearing on 28 and 29 September 2021. 7. Liberty to apply on three days' notice.

[18]

The Statement of Agreed Facts

The parties have settled a Statement of Agreed facts relevant to the series of interlocutory proceedings within which this decision fits. It is in the following terms: Background The legislative framework for disposal of excavation waste 1. At the times of the alleged offences, the disposal of waste, including excavation waste, from construction sites was governed by the Protection of the Environment Operations Act 1997 (POEO Act) and the Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulation). 2. There were different types or categories of waste including: • aggregate; • asbestos; • bricks or concrete; • contaminated soil; • mixed waste; • soil (not contaminated or Virgin Excavated Natural Material (VENM)); • VENM • asbestos containing/contaminated material (ACM); • potential acid sulphate soils (PASS); • general solid waste (GSW); and • excavated natural material (ENM). 3. Under Part 3 of the Waste Regulation, the occupiers of waste facilities were required to record certain information in relation to each delivery of waste or other material received at the facility, including the amount of any waste delivered, its waste type, its waste stream (such as construction and demolition waste), the date and time the delivery is made and the registration number of the vehicle used to make the delivery. This was an obligation that attached only to the occupiers of waste facilities. Accounting required for disposal of excavation waste, generally 4. In summary, the waste facilities had weighbridges over which the trucks carrying waste into the facility were required to pass. The weighbridges generated weighbridge disposal dockets (dockets) which were usually given to the drivers of the trucks concerned. A function of the dockets was to provide a record of the disposal of the quantity of waste concerned. The dockets sometimes specified the source development site which had been supplied to the waste facility operator when the Company disposing of the waste agreed with the operator for the waste to be disposed of at the facility, and/or given to the weighbridge operator by the truck driver when going over the weighbridge. Where an order number (job number) had been created by the waste facility for that source site, the docket sometimes specified that data. (The process by which the dockets were generated is detailed under the heading "ACE's transactions with waste facilities" below.) The dockets were ultimately provided to the Company disposing of the waste, in this case ACE Demolition & Excavation Pty Ltd (ACE). A record of the dockets was also kept by the waste facilities. ACE received dockets in one or other or both of two ways: • from the driver of the truck; and/or • from the facility, sometimes as copies, when it invoiced ACE for the cost of ACE disposing of the waste concerned; or when ACE requested them from the facility. 5. The dockets usually recorded in print form: (a) the name of the facility; (b) a unique docket number; (c) the date and time; (d) the vehicle registration number of the truck; (e) the identity of the Company disposing of the waste (e.g. ACE); (f) a job number or source location for the waste; (g) the waste type; (h) the tare weight of the truck; and (i) the net weight of the waste. ACE Demolition & Excavation Pty Ltd The Company and relevant senior staff 6. At the times of the alleged offences, ACE conducted civil works, such as demolition and excavation of development sites, and the transportation and disposal of waste. 7. At the times of the alleged offences, Mr Allam was the sole director of ACE and had been a director since 22 January 2004. Mr Allam was the sole shareholder of ACE. 8. At the times of the alleged offences, ACE simultaneously conducted excavation activities on an average of 25 development sites in NSW - most of them in the Sydney area. ACE had an office at Regents Park. Based at the office were • Mr Allam - director; • Munaf Al Sarray; • Bachar Allam - truck & people allocator; • Kassan (also "Kassem") Allam - machinery allocator; and • Ameer Sidawi - accounts payable clerk & contracts administrator. 9. Mr Allam acted as the Company's chief executive officer. 10. As part of his role, Mr Al Sarray: (a) had oversight of the movement of waste from construction sites to waste facilities, including coordinating where waste was sent; (b) was responsible for collecting dockets from waste facilities and for providing copies of dockets to clients and environmental consultants; (c) was responsible for finishing the jobs which ACE undertook by, amongst other things, providing evidence to clients that waste anticipated to have been present on the site was lawfully disposed of. The Company's operations 11. ACE typically quoted to development companies (including construction companies) to conduct the demolition and excavation phases of planned development works. Those phases often included the removal from the development site of the demolition and excavation waste generated by ACE. 12. ACE entered into agreements with various waste facilities for the disposal at those facilities of waste taken from particular development sites at which ACE was generating waste. 13. The system which ACE operated for the transport of waste to waste facilities was generally as follows: (a) excavator operators hired or employed by ACE excavated material from the development site concerned; (b) the excavated material was placed by the operator of an excavator either directly from the excavation or from a stockpile into a truck hired by ACE; (c) the truck drove to the exit gate of the site; (d) the gate was controlled by a traffic controller; (e) the traffic controller was told the type of the waste and the waste facility to which the truck should take the waste; (f) if he had not already been told by the allocator, the truck driver was told the destination waste facility to which the load should be taken by the traffic controller. ACE's transactions with waste facilities 14. In the period 2016-2017, ACE disposed of excavation waste to waste facilities, including facilities operated by: (a) SUEZ Recycling & Recovery Pty Ltd (SUEZ) - including its Elizabeth Drive Landfill Facility at 1725 Elizabeth Drive, Kemps Creek, NSW (SUEZ Facility); (b) Dial A Dump Industries Pty Ltd and Dial A Dump (EC) Pty Ltd (DADI) - including its Genesis Eastern Creek landfill and recycling facility at Kangaroo Avneue, Eastern Creek, NSW (DADI Facility); and (c) The Holt Estate 1861 trading as Besmaw Pty Ltd (Besmaw) - namely its Holt Land Rehabilitation Centre, corner Lindum Road and Captain Cook Drive, Kurnell, NSW (Holt Landfill). 15. The procedure to enable ACE to dispose of waste to the SUEZ Facility and the DADI Facility was that ACE already had or opened an account with the operator of the facility. The procedure included: (a) ACE provided the operator with information as to the types of waste to be disposed of for a particular job or for various types of waste it may dispose of; (b) in the case of DADI, the operator allocated an order number to the customer which was then printed on its dockets as the "Order No."; (c) in the case of SUEZ, the operator allocated a "Customer ref." which was a unqiue code. 16. Generally, when a truck carrying waste being disposed of by ACE came to a waste facility it was required to go over a weighbridge. The truck driver told the weighbridge operator that it was carrying waste for ACE. The weighbridge weighed the gross load. The truck travelled into the facility and tipped off its load (if one bin on a bogie truck) or loads (if two bins comprising a truck and dog) and returned to the weighbridge. There the weighbridge calculated the tare weight of the vehicle and recorded the net weight of the load/s. The weighbridge generated a docket (for details, see pars 4 and 5 above). 17. ACE disposed of waste to the Holt Landfill from at least 12 source development sites. Trucks carrying waste to the Holt Landfill for ACE from any source site went over a weighbridge which calculated the weight of the loads tipped and generated a docket (entitled "Tax invoice duplicate") which contained the same data as referred to in paragraph 5 above. Wolli Creek Premises Development consent, excavation contract and site investigations 18. On 13 November 2014, development approval was granted for the demolition of existing structures and construction of two 8‑storey residential flat buildings with rooftop terrace areas and basement parking, at 40-50 Arncliffe Street, Wolli Creek, NSW (the Wolli Creek Premises). Top Pacific Construction Pty Ltd (TPC), subsequently known as Top Pacific Constructions Aust. Pty Ltd (TPCA), was a construction Company owned by Top Pacific Group Pty Ltd. The latter Company was responsible for developing the Wolli Creek Premises. 19. Environmental Investigations Australia Pty Ltd (EI Australia) provided, amongst other things, environmental engineering services for the construction and excavation waste disposal industries. A director at EI Australia was Eric Gerges. 20. On 9 January 2017, ACE entered into a contract with TPC to carry out excavation and remediation works at the Wolli Creek Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Wolli Creek Premises. The value of the contract was $3,600,000. The contract was signed for ACE by Mr Allam. Works at the Wolli Creek Premises 21. The contract with TPC specified that, amongst other things, ACE was required to remove all VENM, PASS, ACM and GSW from the Wolli Creek Premises. Information provided by ACE to TPC and EI Australia in respect of waste at the Wolli Creek Premises 22. On 25 January 2017, ACE submitted an invoice to TPC. 23. On 23 February 2017, ACE submitted another invoice to TPC. 24. On 29 March 2017, Dean Huang, a contract administrator employed by TPC, sent an email to Mr Al Sarray and Mr Allam advising that further payments would only be released once further information was received from ACE, including "all dockets" for the "100% of bulk excavation" work for which ACE had claimed payment. 25. On 7 April 2017, Mr Maroun sent an email to Mr Allam reiterating that TPC would release payment to ACE once dockets were provided. 26. On 10 April 2017, an email was sent from Mr Allam's ACE email account to Mr Maroun stating that ACE would send through the dockets on that day or the next day. 27. On 18 April 2017, Mr Al Sarray sent an email to Mr Maroun attaching, amongst other things: (a) 70 dockets for the disposal of waste material at the SUEZ Facility (18 April SUEZ Dockets). The 18 April SUEZ Dockets did not refer to "Wolli Creek". Instead, the customer reference was recorded as "H57" and, in one instance, "H57 TERRY HILLS"; and (b) 148 dockets for the purported disposal of waste material from the Wolli Creek Premises at the DADI Facility (18 April DADI Dockets). 28. Mr Allam was listed in the "CC" field of the email, together with Mr Park Wei, Mr Wesley Wei and Mr Dean Huang. 29. On 12 June 2017, an email was sent from Mr Allam's ACE email account to Eric Gerges at EI Australia, attaching, amongst other things: (a) a document listing details regarding 80 loads, or 2,415.97 tonnes, of waste material (the First Holt Run Sheet); (b) a letter from Besmaw stating that 2,415.97 tonnes of VENM was received by Besmaw; (c) 153 dockets for the purported disposal of waste material at the DADI Facility (12 June DADI Dockets). The 12 June DADI Dockets made reference to a range of source locations, including "wolli creek", "REGENTS PARK", "LIDCOMBE", and "westmead"; (d) 48 dockets for the disposal of waste at the SUEZ Facility (12 June SUEZ Dockets). The 12 June Suez Dockets did not refer to the words "Wolli Creek" but instead referred to "H57" and, in one instance, "H57 TERRY HILLS"; (e) an excel spreadsheet titled 'Wolli Creek Summary', which included 95 docket reference numbers and associated information for the purported disposal of waste from the Wolli Creek Premises (DADI Spreadsheet); and (f) an excel spreadsheet named 'ACE 130217 300317', which included 70 docket reference numbers and associated information for the disposal of waste at the SUEZ Facility (SUEZ Spreadsheet). The SUEZ Spreadsheet did not refer to the words "Wolli Creek", but instead referred to "H57" and, in one instance, "H57 TERRY HILLS". 30. On 2 December 2017, Mr Sidawi emailed Mr Gerges attaching a purported summary sheet (or run sheet) from the Holt Group. The run sheet indicated that 622 loads, or 18,186.91 tonnes, of waste material had been disposed of by ACE at the Holt Landfill (the Second Holt Run Sheet). Mr Allam was listed in the CC field of this email. Zetland Premises 31. On 20 January 2016, development approval was granted for the demolition of existing structures and construction of a mixed use development comprising three buildings of a scale of 9 storeys, 11 storeys and 15 storeys, each above two levels of basement car parking at 105-115 Portman Street, Zetland, NSW (the Zetland Premises). The construction Company that was responsible for developing the Zetland Premises was Westbourne Constructions Pty Ltd (Westbourne). 32. On 15 February 2017, ACE entered into a contract with Westbourne to carry out works at the Zetland Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Zetland Premises, design and install shoring walls and ground anchors, and perform earthworks and piling. The value of the contract was $19,000,000. The contract was signed by Mr Allam for ACE. Works at the Zetland Premises 33. Between February and August 2017, ACE carried out and completed the works at the Zetland Premises. 34. As part of the development consent, Westbourne was required to prepare a Waste Management Plan. Westbourne prepared such a Waste Management Plan on 18 July 2016. That Waste Management Plan stated, in relation to "[e]xcess or contaminated excavation fill... to be removed off site and classified in accordance with relevant authorities", that "[t]rucking docket records are to be kept on site to check that fill is going to the nominated landfills". The Waste Management Plan was not included in Westbourne's contract with ACE. Dockets provided by ACE to Westbourne in respect of waste at the Zetland Premises 35. On 2 June 2017, Mr Al Sarray sent an email to Glen Allam, a construction manager employed by Westbourne, attaching, amongst other things: (a) 70 weighbridge dockets for the disposal of waste at the SUEZ Facility (2 June SUEZ Dockets). The 2 June SUEZ Dockets did not refer to "Zetland", but rather to "H57" and, in one instance, "H57 TERRY HILLS"; and (b) 147 weighbridge dockets for the purported disposal of waste from the Zetland Premises at the DADI Facility (2 June DADI Dockets). 36. Mr Allam was listed in the CC field of this email.

[23]

The Prosecutor's categories

The categories into which the Prosecutor has allocated the various text messages and WhatsApp conversations have been given the designations set out below. In paragraph 75 of the Prosecutor's written submissions, it was noted that, on 22 September 2021, a revised version of the below list had been served on the Defendants. The amendments were to Categories H and M. The amendments to these two categories are added in italics in the relevant category below: A. Sami Allam's role in managing the disposal of material from development sites. B. Sami Allam's relationship with developer clients, generally, and/or specifically Top Pacific and Westbourne. C. Sami Allam's relationship with environmental consultant - EI Australia. D. Sami Allam's knowledge of sampling of waste on site, waste classification and reporting, and/or variation records. E. Sami Allam's relationship with waste facilities. F. Sami Allam's knowledge of ACE dealings with waste facilities and knowledge as to the system which ACE operated for the transport of waste to waste facilities. G. Sami Allam's knowledge as to requirement to obtain, keep and supply weighbridge disposal dockets in relation to waste disposal and knowledge as to ACE practices in relation to weighbridge disposal dockets. H. ACE's use of picking, screening and backfilling practices at the Wolli Creek and Zetland premises, and Sami Allam's knowledge of ACE practices on site, including generally, and specifically picking and screening and backfilling. I. Sami Allam's role in providing instructions to employees of ACE. J. Sami Allam's knowledge of or involvement in [a] culture of dishonesty for a non-tendency purpose. K. Sami Allam's tendency to promote a culture, and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information to other people in the course of dealing with waste. L. Sami Allam's decision-making role within ACE as to the waste facility or location to which material from development sites was to be taken. M. ACE's use of the Arcadia landfill is a waste disposal site and Sami Allam's knowledge of the use of the Arcadia landfill as a waste disposal site. N. Sami Allam's interest in reducing costs. O. Munaf Al Sarray's role and responsibilities in the company ACE and Sami Allam's knowledge of Al Sarray's role and responsibilities. P. Sidawi's role and responsibilities in the company ACE and Sami Allam's knowledge of Sidawi's role and responsibilities. Q. Sidawi's role in altering weighbridge disposal dockets and Sami Allam's constructive knowledge in relation to the supply of false or misleading information about waste.
As can be seen from matters later set out, the amendments to the Prosecutor's categories do not require consideration by me in these interlocutory proceedings in light of the two sets of Consent Orders which resolved, inter alia, matters concerning Categories H and M.

[24]

The relevant statutory provisions

As earlier noted, the interlocutory orders in the Defendants' Notice of Motion are sought pursuant to s 192A of the Evidence Act. It is not necessary to reproduce the terms of s 192A. It is sufficient to note that it provides me with the power to give a ruling or make a finding in relation to evidence that is proposed to be adduced in the proceedings against the Company and/or Mr Sami Allam in advance of the substantive hearing.
However, it was also pressed on behalf of the Defendants that these additional text messages and WhatsApp conversations should be excluded on the basis that permitting the Prosecutor to rely on them would be unfairly prejudicial to the Defendants, a matter requiring consideration as a consequence of ss 135 and 137 of the Evidence Act. These provisions are in the following terms: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
It is also, therefore, appropriate to set out the definition of probative value contained in the dictionary to the evidence act. It is in the following terms: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
It was also submitted that, as a further discretionary point, the time burden which would be placed on the Defendants to respond to all these additional text messages and WhatsApp conversations and matters said to arise from them substantially outweighed the probative value of the text messages and WhatsApp conversations.

[35]

Introduction

The agreement between the parties that I make the two sets of Consent Orders on 28 September 2021 meant that only the text messages and WhatsApp conversations assigned by the Prosecutor to Categories N, O, P and Q now require to be addressed (Categories J and K not requiring further consideration at this time for the reasons later explained). It is convenient to repeat, at this point, the matter said by the Prosecutor to be demonstrated by Categories N, O, P and Q. These are: N. Sami Allam's interest in reducing costs. O. Munaf Al Sarray's role and responsibilities in the company ACE and Sami Allam's knowledge of Al Sarray's role and responsibilities. P. Sidawi's role and responsibilities in the company ACE and Sami Allam's knowledge of Sidawi's role and responsibilities. Q. Sidawi's role in altering weighbridge disposal dockets and Sami Allam's constructive knowledge in relation to the supply of false or misleading information about waste.
As earlier noted, the Prosecutor had filed written submissions in response to the Defendants' Notice of Motion. In those written submissions, at paragraph 50, the Prosecutor set out a range of matters concerning the various categories into which the Prosecutor had assigned the text messages and/or WhatsApp conversations. This paragraph of the Prosecutor's written submissions appeared to contain a formatting glitch which inserted a paragraph number in the midst of the list of the matters obviously intended to be sequentially set out. I have ignored this numbering glitch in my reproduction of the relevant elements of this paragraph.
Because of the two sets of Consent Orders made on 28 September 2021, much of what was set out in the Prosecutor's paragraph 50 no longer requires consideration. However, for present purposes, this paragraph and its relevant elements are in the following terms: 50 Matters relevant both to attribution and vicarious liability in the charges against ACE and Allam, and to the element of constructive knowledge in charges against Sami Allam, include the following: (a) …; (b) …; (c) …; (d) …; (e) …; (f) …; (g) …; (h) the roles which Munaf Al Sarray and Ameer Sidawi played, and their responsibilities, in the company, particularly in communications with third parties such as developer clients and waste facilities - including, in the case of Al Sarray, "finishing up" jobs which required accounting for waste ACE had disposed of - and Sami Allam's knowledge of those roles [categories O and P]; (i) …; (j) …; (k) …; (l) Sami Allam's interest in reducing costs [category N]; (m) …; (n) Sidawi's role in altering weighbridge disposal dockets and Sami Allam's knowledge of that [Category Q].

[36]

The Defendants' general introductory comments

The written submissions on behalf of the Defendants in support of their motion described, in paragraphs 14 and 15, what the Prosecutor had done by the service of the further identified text messages and WhatsApp conversations in the following terms: 14. Order 2 of the Court's orders of 25 August 2021 required the EPA to identify "the relevance to a fact or facts in issue in the proceedings of each of the text messages and each of the WhatsApp chats", although it permitted the EPA to do so "by way of categories of relevance" (which it has elected to do). 15. The EPA has, for each of the Further Text Messages: a) stated whether it is tendered against Mr Allam or both Mr Allam and ACE; b) stated whether the text message is said to be relevant to one of three asserted elements of the offences charged, viz: i. "attribution" of Mr Al Sarray or Mr Sidawi's conduct; ii. "constructive knowledge"; and iii. "failure to take all reasonable steps"; c) created the 17 "categories" referred to at paragraph 9 above, each given an identifying letter (A through to Q), and then identified by using those letters which of the categories the particular Further Text Message is said to be relevant to, and in some cases, identified multiple categories for each Further Text Message.
This description was not, as I understood the position, challenged by the Prosecutor at the subsequent hearing of the Defendants' motion.
In the Defendants' written submissions, paragraphs 16 and 17 recorded what are appropriate to be regarded as general introductory comments made concerning what was said to be the broad difficulty faced by the legal representatives of the Defendants in addressing the additional material in the text messages and WhatsApp conversations sought to be relied upon by the Prosecutor. These paragraphs were in the following terms: 16. It is evident from their terms that the 17 categories which have been created by the EPA are framed at a very high level of generality. As a result, it is not possible simply by classification to a particular lettered category, to ascertain which "fact or facts in issue" each of the 1,692 Further Text Messages (or, indeed, even the 17 categories themselves) are said to relate to, nor what fact or proposition the EPA contends that the Further Text Messages are able to prove. The EPA's identification of three "element(s) of alleged offence(s)" to which each of the Further Text Messages is said to relate to also does not meaningfully clarify the position. 17. The limited and generalised statement of the asserted relevance of the Further Text Messages has limited the defendants' ability to understand what the EPA seeks to have the Court make of this large body of documentary evidence.

[39]

The messages in Categories J and K

As can be seen from the earlier‑reproduced list, the messages identified by the Prosecutor as falling within Categories J and K are proposed to be used for the purposes attributed to them as noted in the earlier set out list.
With respect to these proposed uses of the messages identified in these categories, I was advised that the parties expected that my determination in the proceedings concerning the Prosecutor's proposed tendency use of the text messages, said to demonstrate an "asserted tendency" by Mr Sami Allam (dealt with in Allam No 2), would likely result in resolution of the position to be taken for the messages in Categories J and K, for the purposes of the Defendants' Notice of Motion of 20 September 2021.
The text messages retrieved from Mr Sami Allam's mobile phone (no WhatsApp conversations being relied upon by the Prosecutor for the "asserted tendency" proposed against Mr Sami Allam) were characterised by the Prosecutor as falling into two distinct groups, with a different characteristic identified for each of these groups. The first group comprised messages where the Prosecutor proposed that actual dishonesty on Mr Sami Allam's part was demonstrated, whilst the characteristic said by the Prosecutor to arise from the second group was that Mr Sami Allam's dishonesty was to be inferred from the messages in that group.
Although the oral and written submissions concerning these issues dominantly addressed these two categories of groups of text messages on the basis that the same ruling might be expected for the "direct dishonesty" and the "dishonesty inferred" categories of text messages, I raised with the parties the possibility that I might reach a differential conclusion concerning the two distinct categories in my "asserted tendency" ruling.
It is appropriate to reproduce the entirety of the relevant exchange I had with Mr Potts on 28 September 2021 (an exchange reflecting what I took to be the agreed position of the parties on the possibility of there being a differential outcome in my determination concerning the Prosecutor's "asserted tendency" proposed to be relied upon concerning Mr Sami Allam's conduct). The relevant passage (Transcript 28 September 2021, page 288, lines 19 to 45) was in the following terms: POTTS: I believe regardless of these agreements, I think the common position in relation to Categories J and K, is that both of those categories will be depending on the outcome of the exhibit A application. So, that if exhibit A is admitted, Categories J and K will be admitted. If exhibit A is rejected, Categories J and K will be rejected. Your Honour doesn't need to decide anything further on Categories J and K. HIS HONOUR: Before you move from that, let me say this. Exhibit A is in two distinct tranches. That is, the direct attribution and the inferred attribution in shorthand terms. It is at least possible - and I'm not to be taken to be expressing even a tentative view - that they don't necessarily both go in or both go out. POTTS: Yes, I understand there's an intermediate outcome. HIS HONOUR: Does that alter what I might end up needing to do in this part of the process with respect to exhibits/tabs J and K? POTTS: Your Honour, I suspect not, but can I defer that so I can discuss that with my learned friend to see if there's common ground on that? HIS HONOUR: Yes. I'm just flagging that to you because that's something that I've at least started to think about the possibility of. POTTS: I'm grateful for that indication, your Honour. Your Honour's right. I don't think we've explicitly discussed the intermediate outcome. I'll take that up with my learned friend. I won't trouble your Honour with that at the moment.
As earlier noted, my decision in Allam No 2 has been delivered at the same time as this decision and the Company decision. As I foreshadowed in the above transcript extract might be possible, I have determined in Allam No 2 that most (but not all) the text messages in the text message groups categorised as "direct dishonesty" can be taken to have demonstrated the Prosecutor's "asserted tendency" in its notice given on 16 July 2021 that: … the Defendant [Mr Sami Allam] had a tendency to act in a particular way, namely a tendency: • to promote a culture, and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information to other people in the course of dealing with waste.
However, I have rejected the Prosecutor's proposition that the messages in the groups of such text messages categorised by the Prosecutor as being "dishonesty inferred" provide a proper basis to support the "asserted tendency" set out immediately above as being attributable to Mr Sami Allam.
As a consequence of a broader intermediate outcome actually arising, it will now be necessary for the parties to discuss whether or not I need to hear the parties further on how the issues arising from the messages in Categories J and K are to be resolved. To address this outcome, the orders at the conclusion of this decision provide that I will hear the parties on this at a short supplementary hearing on this point, if I am notified within 10 working days of this decision that such a further hearing is required.

[46]

The Defendants' position

The written submissions on behalf of the Defendants concerning the messages in this category were confined to giving one example from the messages in the category (the WhatsApp conversation in item 139) and proposing, in paragraph 52, that this example was: illustrative of the fact that many of the Further Text Messages bear little if any relation to even the extremely broad category description assigned to them.
The oral submissions on behalf of the Defendants concerning the messages in Category N were in the following terms (Transcript 27 September 2021, page 284, line 27 to page 285, line 4): There is … only one more I need to deal with and that's category N, which is said to be the category description, Sami Allam's interest in reducing costs. At that level of generality, we really wonder what, if anything, that's capable of proving. But equally, when your Honour looks at category N in the exhibit 3 bundle, your Honour will see the sorts of things that these texts - and there's only seven conversations. I'm sorry, I withdraw that, there are seven text messages and then there are nine WhatsApp messages and the conversation. Again we point to our temporal objections, but we say, for instance, item 120 which is the second item on the first page which is a four-text exchange between Mr Sami Allam and Mr Bachar Allam about two truck drivers are leaving because of rates and they're saying they're not making money with ACE. Well, we're not really sure what that's capable of proving about Sami Allam's interest in reducing costs. Presumably, it's said - your Honour, I don't quite know. There seems to be some suggestion that over and above what one would ordinarily expect to be the case that any businessman doesn't want to throw money away and therefore costs are always an issue, there seems to be some suggestion that Mr Allam, it's going to be sought to be proven, had some peculiar or special interest in reducing costs and that is in some way a relevant contextual fact towards he had or ought reasonably have known of the commission of the executive liability offences on the three dates. What we say is, looked at in its totality, and as I say there are only 16 conversations in total in category N, individually or collectively these really don't prove anything about Mr Allam's so-called interest which could in any way be probative as a contextual fact relevant to an assessment of whether or not he ought reasonably to have known that the executive liability offence would be or was being committed. We say this is one example where it is simply irrelevant. We say the category is irrelevant. We say the texts are irrelevant and we say if we're wrong in that we, of course, press our temporal objections in both their forms. We, of course, would say to the extent that your Honour concludes that it is capable of being relevant in some fashion, again, it would appropriately be subject to section 136 orders which would see the texts limited to proof of the category label, Sami Allam's interest in reducing costs, and no other, and would be limited to a non‑hearsay use, but this is one category that we say just is incapable of being relevant.

[47]

The Prosecutor's position

The Prosecutor subsequently indicated that it was accepted that the text messages outside the timeframe noted by Mr Potts in the above extract meant the messages in item 229 (being four messages exchanged on 15 December 2017) were not pressed. In the WhatsApp conversations within Category N, the Prosecutor noted that those within item 200 (a group of messages comprising an exchange on 30 August 2016) and item 130 (comprising an exchange on 1 March 2018) were also not pressed (as being outside the agreed timeframe).
The Prosecutor also indicated that, with respect to the messages comprising an exchange between Mr Sami Allam and Mr Bachar Allam on 17 April 2017 (in item 120 of the text messages of that date), the Prosecutor did not press that exchange of text messages. As can be seen in the transcript extract reproduced above, item 120 in Category N was subject of a specific submission from Mr Potts as to its irrelevance to the proposition said by the Prosecutor to be demonstrated by the text messages and WhatsApp conversations in this category.
With respect to relevance of the remaining messages in Category N, the Prosecutor submitted (Transcript 28 September 2021, page 293, line 33 to page 294, line 2): PROSECUTOR: … As to relevance, it is the Prosecutor's case, that part of Mr Allam's state of mind is that he wanted to reduce the costs that his company was charged when it lawfully disposed of waste. We submit the evidence is that he was aware of work practices like picking, screening and backfilling, which allowed for the avoidance of having to take waste to waste facilities that would charge ACE money to dispose of waste there. The bi product of that however, was that to Mr Allam's knowledge, it led to a shortfall in dockets. The dockets which ACE need to provide to developer clients to account for the removal or disposal of waste they had generated at the worksite. I interpolate, your Honour, that similarly disposing of waste at Arcadia was something which saved ACE having to pay an official waste facility to dispose there of waste. That it led, to Mr Allam's knowledge, to a shortfall in dockets. Your Honour, this makes it more likely, we submit, that Mr Allam ought reasonably to have known that the executive liability offences were being committed. That is to say, to make up for shortfalls in dockets which had been brought about by, amongst other reasons, the reduction in the costs incurred by ACE by engaging in the work practices at worksites that I've mentioned. I'll be told by my betters, if this is out of place. We, I don't think, - disagree with a limiting order as per part 3 of the short minutes of orders if your Honour rules that the category N messages are admissible.

[59]

The Defendants' position

With respect to Category Q, the Defendants' written submission was, in paragraph 50(b): (b) as to Category Q, this contains only one conversation which is also identified as falling within Category J, being a conversation not otherwise within the Exhibit A Text Messages. Again, for the reasons set out at paragraphs 18-19 above, the Court should not permit the EPA to reagitate such issues here
Mr Potts' oral submissions were (Transcript 27 September 2021, page 267, line 43 to page 268, line 20): The final category that we understand to be relied upon in the corporate offences is Category Q and this is a single conversation which your Honour sees at item 148 in the last tab. The category is said to be Sidawi's role in altering weighbridge disposal dockets and Sami Allam's constructive knowledge in relation to supply of false or misleading information about waste. Your Honour will see the five-text exchange there and your Honour will see the five-text exchange there and your Honour will see - and we don't necessarily apprehend it to be suggested that - if I'm wrong about this I'm happy to be corrected - this is evidence of anything to do with dockets that form the attachments to any of the emails charged. So we don't apprehend it to be advanced on the basis this subject matter is directly relevant to the attachments to the emails. We understand that this is proffered as some other exchange in relation to dockets that can't be specifically tied to any of the emails. If that's right, then this, we say, can only be relevant in the same way as we argued on the earlier applications, as tendency evidence. Because the fact that Mr Sidawi - we don't accept I should say that it's an available reading of these text messages that this involves any form of alteration, the expression is fixed. Our friends want to read something sinister into that, but we submit that this couldn't be relevant to any question that might actually arise and your Honour will remember the allegations against Mr Sidawi are against - I'm sorry, ACE involving Mr Sidawi altering things - are that he did that under the direction of Mr Al Sarray. Now, this is one example where we say Category Q is not in terms relevant, Category Q in terms of item 1 through 8 can only be relevant as a tendency. Your Honour knows there's no further tendency evidence, and otherwise it was not used for a tendency purpose, it's not capable of being relevant.
Mr Potts later said (Transcript 28 September 2021, page 291, lines 27 to 30): POTTS: … Finally, that leaves Category Q, which has the one WhatsApp message in it. We say that can only be relevant as tendency, there is no tendency notice, it's otherwise irrelevant, and again if we're wrong in that we press for the para 3(c) limitations.

[60]

The Prosecutor's position

The Prosecutor's oral submissions made clear the basis for which it was contended that these messages demonstrated the proposition said to be derived from them (Transcript 28 September 2021, page 298, line 44 to page 299, line 36): PROSECUTOR: … Category Q, this is the sole text message which is item 148. Your Honour, the relevance of it is, as you will see, your Honour, in exhibit EES-1, Tab 4, just check that I've got the right documents, sorry, yes, it is, your Honour again has the defendant's response to the prosecutor's revised draft statement of facts. On p 17 of that document, para 59, the defendants had put in issue that Mr Allam knew that Mr Sidawi, an accounts payable clerk and contracts administrator employed by Ace, was responsible amongst other things for communicating with clients and their agents. Such as their environmental engineers and site auditors, and under the direction of Mr Al Sarray for sending the clients and their agents documents relating to the disposal of waste by Ace. In the consolidated particulars we had pleaded the knowledge that we say Mr Allam had of Mr Sidawi's role at the company, that's in exhibit 4 pp 107 and 115, and in each case it's para (c) on that particular page. The message or the messages in that chat are on 30 May 2017. Your Honour, that is between the date of the first offence charged and the second offence charged. The prosecutor says that a characteristic of the April offence is that while the dockets were supplied to the developer of the premises at Wolli Creek, many altered dockets nevertheless retained printed overt indications of the true source of the waste being another site. That's in the agreed statement of facts, your Honour, referenced sorry in the agreed statement of facts, para 28. We submit that that is a problem for trying to pass off dockets which are in relation to waste from other premises as being for waste from the Wolli Creek premises. These messages in item 148 in Category Q by Sami Allam to Ameer Sidawi are probative of, firstly, Mr Sidawi's role in altering dockets generally and Sami Allam's knowledge or constructive knowledge as to the supply of false or misleading information about waste. Your Honour, I need to make clear it is not the prosecutor's case that Mr Allam instructed Sidawi to alter dockets the subject of the charges and the prosecutor doesn't rely on these messages to prove such a fact. They are relevant instead to the doctoring of dockets generally and Mr Allam's constructive knowledge about that. There's no breach of the hearsay rule in tendering the messages to prove Mr Allam's constructive knowledge of the supply of false or misleading information about waste. We submit that there is no breach of the hearsay rule involved in the prosecutor relying on the messages to assist in proof of Mr Sidawi's role in altering weighbridge disposal dockets. There will be an inference available from the exchange but it is not a fact it might reasonably be supposed that Sami Allam was asserting. If we are wrong about that, then we rely upon the business records exception to the hearsay rule.

[64]

The submissions for the Defendants

The Defendants' written submissions on this matter were set out at paragraphs 68 to 71: Section 135 and 137 - omnibus tender 68. The attempt by the EPA to introduce evidence in this manner, by omnibus tender of a bundle of nearly 1700 assorted text messages, without a proper explanation of the claimed relevance of the various messages to these proceedings, or more particularly, to the charges laid against the defendants, is unfair to a responding party. That is especially so in a criminal proceeding. The defendants are left to wonder and to discern for themselves what might possibly comprise relevant evidence within that omnibus tender, and face a real risk of surprise that the prosecutor may seek to put that evidence to some use that is not currently evident. That is in the context where there has been detailed correspondence seeking full particularisation of the charges, a lengthy and substantial statements of facts has been agreed, and the Court has already heard four days of argument on a much smaller sub-set of similar messages. 69. The time and cost required to review and digest such material, where the use to which it is to be put, and the inferences sought to be drawn from it are, at best, opaque, is also unfair and oppressive. 70. Any limited probative value of the Further Text Messages is in this regard outweighed by the danger of unfair prejudice to the defendants, and an undue waste of time. The Court should for such reasons, exercise its discretion under ss 135 or 137 of the Act to refuse to admit the evidence. 71. If the Court is not minded to do that, to ameliorate the risk of unfair surprise, the Court should nonetheless make a broad form s 136 limiting order, that the only use that can be made of the Further Text Messages is to prove the fact asserted in each of the 17 lettered category descriptions, and limiting the evidence which can be used to prove those category descriptions to only those Further Text Messages that have been identified by the EPA as falling within each lettered category. To do otherwise leaves the defendants at real risk of being taken by surprise if the prosecution then later seeks to assert that some relevant fact is established by one or more of the 1,692 Further Text Messages beyond the category description.

[65]

The submissions for the Prosecutor

The Defendants' written submissions on this matter were set out at paragraphs 113 to 119: 113. In order to apply s 135 Evidence Act, it is necessary for the Court to undertake three related tasks: (a) to be satisfied of a risk of unfair prejudice to the Defendant; (b) to make an assessment of the probative value of the evidence, and then (c) to assess whether that probative value is "substantially outweighed" by the danger that the evidence might be unfairly prejudicial. 114. The Court then has a discretion - it "may refuse to admit the evidence". 115. To apply s 137, it is necessary for the Court to undertake tasks (a) and (b) above and then to assess whether the probative value is outweighed by the danger of unfair prejudice to the Defendant. In the event it is so satisfied, the Court "must refuse to admit the evidence". 116. In support of a complaint of prejudice, the Defendant complains that the Prosecutor is attempting to introduce evidence "in this manner, by omnibus tender of a bundle of nearly 1700 assorted text messages without a proper explanation of [their] claimed relevance" and talks of "the time and the cost" required to review and digest such material. 117. In response, it is submitted that it was the Defendants' application to bring on its objections to this evidence, pre-hearing, and therefore its consideration of that evidence. By its Key as to relevance and by its identification of the offence element or elements to which the messages go, the Prosecutor has responded to the objections by providing a statement as to asserted relevance for each message. There is no evidence as to the "the time and the cost" required to review and digest the evidence. 118. More to the point, however, it is not unusual for evidence in a prosecution case to be voluminous and extremely detailed. Nor is it a ground for exclusion of evidence. If it were, prosecutions relying upon complex and voluminous evidence would for that reason be defeated. 119. In this case, the issues of attribution and constructive knowledge call for the Prosecutor to adduce evidence which demonstrates the operations of the company in a detailed way, as well as the roles of employees, and Mr Allam's knowledge of those aspects over an extended period of time.

[66]

Probative value versus danger of unfair prejudice

In the Company decision, I also dealt with submissions on behalf of the Company that, if the tendency evidence which was being considered in that decision passed the various tests in ss 97 and 101 of the Evidence Act, the tendency evidence should be excluded pursuant to ss 135 or 137 of the Evidence Act.
The same issues that I addressed in the Company decision concerning those potentially exclusionary provisions also arise in the context of this decision. Here, exclusion of the additional categories of text messages and WhatsApp conversations were appropriate to be excluded. It was submitted, on behalf of the Defendants, that they would have a prejudicial effect that outweighed their probative value, thus leading, on the Defendants' submission, to them being excluded.
It is, therefore, appropriate for me to repeat, in an adapted fashion, my analysis and conclusions concerning ss 135 and 137 as set out in the Company decision, given that I have reached the same conclusion as being appropriate concerning the text messages and WhatsApp conversations contained in Categories N, O, P and Q being dealt with in this decision.
Relevant to my consideration here is the decision of the Court of Criminal Appeal in R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112. In that decision, Spigelman CJ addressed the question of the tension between the decision of the High Court in Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 and Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 as to how the definition of "probative value" should be approached. The Chief Justice concluded, favouring the position adopted by Gaudron J in Adam v The Queen, at [60] to [62]: 60. The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach. 61. In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, "the extent to which the evidence could rationally affect the assessment …". The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has "probative value", as defined, if it is capable of supporting a verdict of guilty. 62. This conclusion is reinforced by the test that evidence must "rationally affect" the assessment. As Gaudron J emphasised in Adam supra, a "test" of 'rationality' also directs attention to capability rather than weight.
In this context, because the trial of the Company and Sami will be one by a judge‑alone (as is the case for all criminal trials in this Court), I am satisfied that the risk of the trial judge not having proper regard to necessary issues of reliability and credibility in assessing the probative value to be accorded to the "asserted tendency" is minimal and not one which would give rise to any potential unfair prejudice to the Company.
It is also appropriate to note the further relevant observation by Spigelman CJ in Shamouil at [72]. His Honour's observation was in the following terms: 72. There is now a considerable body of case law in this Court which emphasises the fact that the assessment of this element requires any prejudice to be unfair. There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give [citation omitted].
In circumstances where, as earlier noted, the trial of the Company and Sami will be a judge‑alone one, without the involvement of a jury, I am satisfied that this process, assisted by competent and experienced counsel, as was here (and will be at trial) the case, there is no risk of misuse of the categories of text messages and WhatsApp conversations and what they are said to demonstrate in a fashion which would cause prejudice to the Company or Sami in the fashion postulated by the statutory provisions.

[68]

The addition of messages to Categories J and K

The Defendants' written submissions addressed the position where the Prosecutor seeks to add messages to Categories J and K where the matters which had been argued in the earlier phases of the proceedings had addressed these types of messages (and were to be - and now are - the subject of my decision in Allam No 2). In this regard, the written submissions said, at paragraphs 18 and 19: 18. The defendants are also concerned at what appears to be an attempt by the EPA to re-canvas matters which have already been the subject of a multi-day hearing and on which the Court is presently reserved. Categories J and K entirely overlap (in their asserted relevant subject matter and purpose) with the Exhibit A Text Messages. The EPA has sought to include a limited number of additional text messages within those two categories (although it has since partly withdrawn from that position). The defendants do not accept that it is now open to the EPA to do so in this indirect way. 19. No explanation has been provided by the EPA for its failure to include these additional messages in the Exhibit A Text Messages when the 16 July Motion and the EPA Motions were heard. Notably, the Court's earlier orders required the EPA to file any tendency notices pursuant to s 97(1)(a) of the Act by 16 July 2021. The Court should, in its discretion, reject the tender of any Further Text Messages within Categories J and K that are not already part of the Exhibit A Text Messages.
As part of paragraph 51(a), it was also submitted for the Defendants concerning Categories J and K that: To the extent there are additional messages included in the Further Text Messages which are assigned to Categories J and K, the Court, as a matter of fairness, ought not permit the EPA to attempt to agitate for their admission now, on bases that were squarely argued and addressed in the hearing of the earlier applications;
Mr Potts adverted to this in his oral submissions during the discussion on "parking" Categories J and K until I had given my decision in Allam No 2. He observed (Transcript 28 September 2021, page 290, line 45 to page 291, line 4): POTTS: Yes, your Honour, and that's understood. All I think I'm intending to convey to your Honour is if your Honour, for example, ruled in that manner, I think the parties would confer, and I suspect at least in terms of category K that would take care of category K if not entirely then in very large measure. The only outstanding issue would be whether your Honour's ruling would have an implication which the parties could agree for the five conversations in Category J that don't directly appear in exhibit A. One would hope, parties behaving sensibly, would be able to agree either the implication of the ruling on the exhibit A messages, or, if not, confine that dispute to a fairly narrow one.

[70]

Directions

Given that orders 1 and 2 sought in the Defendants' Notice of Motion, as set out at [13], have been addressed substantively, with respect to all categories of text messages and WhatsApp conversations other than Categories J, K, N, O, P and Q by the Consent Orders made on 28 September 2021, and as the Prosecutor indicated that order 3 in the Defendants' Notice of Motion was agreed to, it is appropriate to give directions to the parties to enable preparation of formal orders to give effect to the conclusions which I have set out in this decision concerning the remaining categories and to give effect to implementation of proposed order 3 sought in the Defendants' Notice of Motion.
I therefore give the following directions: 1. The parties are directed to settle orders to give effect to my determinations concerning the unresolved message categories (other than Categories J and K as identified by the Prosecutor) the subject of Defendants' Notice of Motion filed on 20 September 2021, with those orders to be provided to my Associate by the close of business on 23 May 2022; 2. If those orders are provided to my Associate by the close of business on 23 May 2022, I will make those orders in chambers; 3. If, in light of this decision, and my decision in Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7, the parties reach agreement on the orders to be made with respect to the messages in Categories J and K as identified by the Prosecutor and the terms of those orders are provided to my Associate by the close of business on 23 May 2022, I will make those orders in chambers; 4. The matters are to be set down for mention before me on 25 May 2022 for the purposes of setting a date for any necessary short supplementary hearing that may be necessary concerning the orders needed to give effect to this decision and my decisions in Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7 and Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44; 5. If no further hearing is required to settle the terms of the orders to give effect to my determinations in these proceedings or in Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7 and Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44, all matters are adjourned until 25 July 2022; and 6. Liberty to relist before Moore J after giving at least three days' notice of the proposed relisting.

[71]

Annexure A Summary Table of Charges Charge No. Relevant POEO Sections Details of Email Pleaded particulars re false or misleading in a material request ACE- 2020/357465 ACE- 144AA(2) Email sent on 18 April 2017 at 7:23pm by Munaf Al Sarray to Peter Maroun (Top Pacific Construction Aust Pty Ltd) (i) In respect of 70 documents purporting to be weighbridge dockets issued by SUEZ in relation to disposal of 70 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Suez Elizabeth Drive Landfill - the dockets were not issued by Suez in relation to those circumstances; and/or Allam- 2020/357476 Allam- 169A (144AA(1)) (ii) In respect of 148 purported weighbridge dockets issued by Dial-A-Dump in relation to disposal of 148 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Dial-A-Dump Landfill - 140 of the documents were not dockets issued by Dial-A-Dump in relation to those circumstances. ACE- 2020/357466 ACE- 144AA(2) Email sent on 2 June 2017 at 12:50pm by Munaf Al Sarray to Glen Allen (Westbourne Constructions Pty Ltd) (i) In respect of 70 documents purporting to be weighbridge dockets issued by SUEZ in relation to disposal of 70 truckloads of soil contaminated with asbestos from the Zetland Premises to the Suez Elizabeth Drive Landfill - those dockets were not issued by Suez in relation to those circumstances; and/or Allam- 2020/357475 Allam- 169A (144AA(1)) (ii) In respect of 147 purported weighbridge dockets issued by Dial-A-Dump in relation to disposal of 147 truckloads of soil contaminated with asbestos from the Zetland Premises to the Dial-A-Dump Landfill - 134 of the documents were not dockets issued by Dial-A-Dump in relation to those circumstances. (i) In respect of 48 dockets purporting to be weighbridge disposal dockets issued by SUEZ purporting to contain info re disposal of 48 truckloads of soil contaminated with asbestos from Wolli Creek Premises to Suez Elizabeth Drive Landfill - the dockets were not issued by SUEZ in relation to those circumstances; and/or ACE- 2020/357467 ACE- 144AA(1) Email sent on 12 June 2017 at 11:24am by "sami@acedemolition.com.au" to Eric Gerges (El Australia Pty Ltd) (ii) In respect of an Excel spreadsheet titled "Ace 120217 to 300317" purporting to contain info re disposal of 70 truckloads of soil contaminated with asbestos from Wolli Creek Premises to Suez Elizabeth Drive Landfill - the 70 truckloads were not related to disposal of soil from Wolli Creek to Suez; and/or (iii) In respect of 153 purported weighbridge dockets issued by Dial-A-Dump re disposal of 153 truckloads of waste material from Wolli Creek Premises to the Dial-A-Dump Landfill - 141 of these were not dockets issued by Dial-A-Dump in relation to those circumstances; and/or (iv) In respect of an Excel spreadsheet titled "Wolli Creek Summary" purporting to contain info re disposal of 95 truckloads of soil contaminated with asbestos from Wolli Creek Premises to the Dial-A-Dump Landfill - 89 of these truckloads were not related to those circumstances. ACE- 2020/357468 ACE- 144AA(2) Email sent on 2 December 2017 at 1:53pm by Ameer Sidawi to Eric Gerges (El Australia Pty Ltd) In respect of a document titled 'Wolli Creek Summary' purportedly created by Besmaw purporting to contain information regarding the disposal of approximately 622 truckloads of waste material from the Wolli Creek Premises to the Holt Landfill - that document was not created by Besmaw, and none of the truckloads referred to in the document were related to the disposal of waste material from Wolli Creek Premises to the Holt Landfill. Allam- 2020/357477 Allam- 169A (144AA(1))

[72]

Annexure B In the Land and Environment Court EPA v ACE Demolition & Excavation Pty Ltd & Allam 2020/357465-8 and 2020/357475-7 Preliminary Hearings - Evidence of the parties Marked Documents Prosecution Exhibit A - Annotated spreadsheet as to text messages Exhibit B - Agreed Summary Table of Charges Exhibit C - Agreed Statement of Facts Defence Exhibit 1 - Letter from EPA to Clayton Utz dated 2 August 2021 Prosecution evidence - tendered on all applications • Affidavit evidence:

Elizabeth Emily Spain affidavit affirmed 15 July 2021- in folder 2 of USB, item 1
Elizabeth Emily Spain affidavit affirmed 30 July- in folder 3 of USB, item 1
Carney Gar Leung Yu affidavit- in folder 3 of USB, item 2
Kate Bleakman affidavit- in folder 3 of USB, item 3
Benjamin James Dales affidavit- in folder 3 of USB, item 5 • Exhibits:
EES-1 to Spain 15 July affidavit- in folder 2 of USB, item 2
KB-1 to Bleakman affidavit- in folder 3 of USB, item 4
BJD-1 to Dales affidavit- in folder 3 of USB, item 5 • Aide memoires:
Spreadsheet as to text messages - in folder 4 of USB, item 1 [which is an extract from spreadsheet in tab 16 of ex EES-1- also from tab 2 of ex BJD1 and tab 2 of ex KB1] Defence evidence - tendered on all applications • Affidavit evidence:
Elodie Jane Cheesman affirmed 16 July 2021 pghs [1]-[4], [21] [35] only- in Folder B Folder 1 of Defendants' USB
George Paul Pasas sworn 30 July 2021- in Folder B Folder 1 of Defendants' USB
Roberto Antonio Pupo sworn 23 June 2020 paragraphs [125] [126] only- in Folder C of Defendants' USB
Carney Gar Leung Yu affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)
Kate Bleakman affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)
Benjamin James Dales affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor) • Exhibits:
EJC-1 to Cheesman affidavit pages 21-125 only in Folder B Folder 1 of Defendants' USB
GP-1 to Pasas affidavit- in Folder B Folder 1 of Defendants' USB
RAP-01 to Pupo affidavit Tab 5 Table 7 - in Folder C of Defendants' USB
RAP-09 Tab 28 Folder "Sami Allam's Phone Extracts" - in Folder C of Defendants' USB (and not "Natives" folder in Tab 28)
KB-1 to Bleakman affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)
BJD-1 to Dales affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)

Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam

At a glance

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Cases Cited (11)

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