Environment Protection Authority v Crush and Haul Pty Ltd

Catchwords

[2000] NSWCA 199 Bankstown City Council v Hanna (2014) 205 LGERA 39[2014] NSWLEC 152 Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 Bankstown Council v Hanna (2014) 205 LGERA 39[2014] NSWLEC 152 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99[2011] FCAFC 59 Bonim Stanmore Pty Ltd v Marrickville Council (2007) 156 LGERA 12[2007] NSWLEC 286 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Carstens v Pittwater Council (1999) 111 LGERA 1[1999] NSWLEC 249 Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215 Craig v South Australia (1995) 184 CLR 163[2005] NSWLEC 470 Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2016) 216 LGERA 285[2013] FCAFC 114 Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 431[2023] FCAFC 98 Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35[1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431[2021] HCA 17 Nathanson v Minister for Home Affairs (2022) 96 ALJR 737[2022] HCA 26 Peacock v Repatriation Commission (2007) 161 FCR 256

Judgment (243 paragraphs)

[1]

Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 431; [2023] FCAFC 98 Ku-ring-gai Council v Bunnings Properties Pty Ltd (2019) 236 LGERA 35; [2019] NSWCA 28 Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Muscat Developments Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 Peacock v Repatriation Commission (2007) 161 FCR 256; [2007] FCAFC 156 Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 Randwick City Council v Belle Living Pty Ltd (No 2) [2023] NSWLEC 100 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Stambe v Minister for Health (2019) 270 FCR 173; [2019] FCA 43 Sydney Metro v Expandamesh Pty Ltd [2023] NSWCA 200 Sydney Water Corporation v Caruso (2009) 170 LGERA 298; [2009] NSWCA 391 Tanious v Georges River Council [2016] NSWLEC 142 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) (2010) 176 LGERA 119; [2010] NSWLEC 17 Warkworth Mining Pty Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Woodhouse v Comcare (2021) 285 FCR 14; [2021] FCAFC 95 Category: Principal judgment Parties: Environment Protection Authority (Appellant) Crush and Haul Pty Ltd (Respondent) Representation: Counsel: B Kaplan with K Morris (Appellant) J Lazarus SC with C Novak (Respondent)

[2]

Solicitors: Environment Protection Authority (Appellant) Hones Lawyers (Respondent) File Number(s): 2023/260897 Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2023] NSWLEC 1367 Date of Decision: 19 July 2023 Before: Targett AC File Number(s): 2022/350294

[3]

JUDGMENT Protection of the Environment Operations Act 1977 (NSW) Grounds of s 56A appeal Principles applied in s 56A appeal Ground 4: failure to consider relevant matter Extract of AC's Judgment Transcript Exhibit 5 in Class 1 proceedings - Letters between EPA and Respondent dated June and August 2017 Email dated 16 June 2023 enclosing letters between EPA and Respondent EPA's submissions Respondent's submissions No failure to consider relevant matter Ground 2: failure to consider the findings in Crush and Haul (criminal) Extracts of AC's judgment relevant to Grounds 2 and 3 Transcript Respondent's Amended Statement of Facts and Contentions before the AC EPA's Amended Statement of Facts and Contentions in Reply before the AC EPA's written submissions before the AC EPA's submissions Ground 2(a) Ground 2(b) Ground 2(c) Ground 2(d) Ground 2(e) Respondent's submissions Ground 2(a) Ground 2(b) Ground 2(c) Ground 2(d) Ground 2(e) No failure to consider criminal judgment Ground 2(a) Ground 2(b) Ground 2(c) Ground 2(d) Ground 2(e) Ground 3: failure to give proper weight to the findings of Crush and Haul (criminal) EPA's submissions Respondent's submissions No failure to attribute proper weight Ground 1: failure to apply correct statutory test EPA's submissions Respondent's submissions No failure to apply correct statutory test Costs Orders

[4]

JUDGMENT

The Environment Protection Authority (EPA) appeals pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) a decision of an acting commissioner (AC) in Class 1 proceedings Crush and Haul Pty Ltd v Environment Protection Authority [2023] NSWLEC 1367 (Crush and Haul (class 1)).
The Respondent Crush and Haul Pty Ltd has the benefit of a development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for 'extractive industry (quarry extension)' at a quarry known as Corindi Quarry (the Land). The activities permitted on the Land by the development consent include 'scheduled activities' listed in Sch 1 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), namely 'crushing, grinding or separating' and 'extractive activities' under cll 16 and 19 respectively. To carry out scheduled activities a person requires an environment protection licence (EPL) pursuant to s 48. The Respondent submitted an EPL application to the EPA which did not determine the application.
The Respondent successfully appealed the deemed refusal by the EPA in Crush and Haul (class 1). The AC found that the Respondent was a fit and proper person for the purpose of holding an EPL. The AC granted the Respondent an EPL to carry out scheduled activities at the Land as provided by s 55 of the POEO Act.
The EPA alleges the AC made numerous errors of law in Crush and Haul (class 1) in this appeal. The EPA bears the onus of proof of establishing the errors it alleges.

[5]

Protection of the Environment Operations Act 1977 (NSW)

Relevant sections of the POEO Act provide: Chapter 3 Environment protection licences Part 3.1 Introduction … 45 Matters to be taken into consideration in licensing functions In exercising its functions under this Chapter, the appropriate regulatory authority is required to take into consideration such of the following matters as are of relevance - … (f) whether the person concerned is a fit and proper person, … Part 3.3 Issue, transfer and variation of licences … 55 Grant or refusal of application (1) The appropriate regulatory authority may - (a) in relation to an application for the issue of a licence - (i) grant the application by issuing the licence, or (ii) refuse the application, and … Part 3.8 Miscellaneous 83 Fit and proper persons (1) This section has effect in determining whether a person is a fit and proper person as referred to in section 45 (f) and section 79 (5) (f), but does not limit the generality of those sections. (2) The appropriate regulatory authority may take into consideration any or all of the following - (a) that the person has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation, (b) that, if the person is a corporation, a current or former director of the corporation or of a related body corporate - (i) has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation, or (ii) is or has been the director of another body corporate that has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation, (c) the person's record of compliance with the environment protection legislation, (d) if the person is a corporation, the record of compliance with the environment protection legislation of any current or former director of the corporation or of a related body corporate, (e) whether, in the opinion of the appropriate regulatory authority, the management of the activities or works that are or are to be authorised, required or regulated under the relevant licence are not or will not be in the hands of a technically competent person, (f) whether, in the opinion of the appropriate regulatory authority, the person is of good repute, having regard to character, honesty and integrity, (g) if the person is a corporation, whether, in the opinion of the appropriate regulatory authority, a current or former director of the corporation or of a related body corporate is of good repute, having regard to character, honesty and integrity, … (3) A reference in subsection (2) to a director of a body corporate extends to a person involved in the management of the affairs of the body corporate. (4) Without limiting the generality of the above, the appropriate regulatory authority may disregard contraventions referred to in subsection (2) having regard to the seriousness of the contraventions, the length of time since they occurred, and other matters that appear relevant to the appropriate regulatory authority. … Chapter 9 Miscellaneous … Part 9.2 Appeals 287 Appeals regarding licence applications and licences (1) The following persons aggrieved by a decision of the appropriate regulatory authority about a licence or licence application may, within the prescribed period, appeal the decision to the Land and Environment Court - (a) for a licence - a person who has held the licence, (b) for a licence application - the applicant. … (2) An appeal under this section extends to a decision to refuse the licence application, to impose conditions on the issue of a licence, to vary the conditions of a licence, to revoke or suspend a licence, to refuse to approve the surrender of a licence, to impose conditions on a revocation, suspension or surrender of a licence or to attach any new conditions to, or to vary any conditions of, a suspension, revocation or surrender of a licence. … (3) For the purposes of this section, a licence application is taken to have been refused - … (c) in any other case, if the application is not granted within 60 days after it is duly made. …

[6]

Grounds of s 56A appeal

The appeal grounds in the Amended Summons Commencing Appeal are extracted where relevant in the judgment. The issues raised in this appeal according to the EPA are as follows: 1. Whether the AC failed to apply the correct statutory test as required by ss 45(f) and 83 of the POEO Act (Ground 1); 2. Whether the AC failed to consider certain findings made by Preston CJ, who convicted the Respondent of an offence contrary to s 48 of the POEO Act and the sole director of the Respondent of an executive liability offence for that same conduct (Ground 2); 3. Whether the degree of weight placed by the AC on the convictions of the Respondent and its sole director was so minimal as to sound in a legally unreasonable decision (Ground 3); and 4. Whether the AC's ruling (at [108]) that the evidence of the Respondent's sole director's claims of misconduct on the part of the EPA was not relevant to the statutory task under ss 45 and 83 of the POEO Act, and the attendant failure to have regard to the relevant material, resulted in a legally unreasonable decision (Ground 4).
The grounds are dealt with in the judgment in the order presented by the EPA in the s 56A appeal hearing (4, 2, 3, 1).
The EPA tendered a two-volume Appeal Book (Ex A) containing copies of the Summons Commencing Appeal, Crush and Haul (class 1), transcript of the Class 1 hearing, Exs A-H, J and Exs 1, 3, 4, 5 before the AC, the EPA's written submissions before the AC and letters from the Respondent and the EPA dated 29 July 2016 and 19 August 2016 respectively.

[7]

Principles applied in s 56A appeal

I outlined the principles relevant to determining a s 56A appeal in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 (Hoy) at [7]-[11]: [7] It is important to state at the outset the principles which apply in appeals under s 56A of the Court Act in matters of this kind. Principles which have been well recognised as applying to s 56A appeals are correctly stated in the Council's submissions and these were drawn on and further developed in this and the following paragraphs. An appeal must identify a question of law explicitly or implicitly decided at first instance: Warkworth Mining Ltd v Bulga Mulbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [4]. That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA. The merits of a commissioner's decision cannot be the subject of a s 56A appeal. [8] An appeal under s 56A is "on a question of law" not limited, however, to "an error of law": ISPT Pty Ltd v Valuer General [2009] NSWCA 31 (2009) 165 LGERA 25 at [3] per Allsop P. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12]. [9] A commissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at first instance is not required to "deal with every argument raised and every possibility that could be adverted to": Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71]. [10] The judgment should be read on the basis that the Commissioners and the parties were present and understood the issues presented by them: see by analogy Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [79]. [11] An approach to finding error that is nitpicking with an eye to identifying error is not permissible, as identified in numerous authorities commencing from Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. Very importantly, a judgment must be considered as a whole, not selecting parts of the judgment and reading them out of context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O' Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23].

[8]

Ground 4: failure to consider relevant matter

Ground 4 is extracted from the Amended Summons Commencing Appeal as follows: 4. In finding that evidence given by Luke Cauchi in cross-examination that an officer of the EPA had planted asbestos at a property at Badgerys Creek and attempted to frame him with that asbestos was "not… relevant as to whether [Crush and Haul] is a fit and proper person to hold the Licence applied for concerning Corindi Quarry" (at [108]), the Assistant Commissioner: a. failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL (including because they pertained to the honesty and integrity of Luke Cauchi); and/or b. acted irrationally, illogically and/or unreasonably.

[9]

Extract of AC's Judgment

The AC addressed the allegation the subject of Ground 4 in Crush and Haul (class 1) at [108] extracted below: [108] For completeness I note that I make no findings in relation to Mr Luke Cauchi's claims of improper conduct by the EPA in 2016 in relation to a property at Badgerys Creek as there was no evidence of these allegations presented to me by either party (other than one letter from the applicant to the respondent dated 16 June 2017 (Ex 5) and Mr Cauchi's assertions during the hearing) and I do not consider them to be relevant as to whether the applicant is a fit and proper person to hold the Licence applied for concerning Corindi Quarry.

[10]

Transcript

The parties referred to sections from the transcript of the Class 1 hearing on 13 June 2023 extracted below: … [18(24-34)] [Beasley, Counsel for EPA] Q. It can cause mesothelioma. Did you have an asbestos management plan for this site? [Mr Cauchi, Director of Respondent] A. Well did I? No, because we weren't dealing with asbestos. You guys tested every pile in the quarry and one of your people were caught planting asbestos in one of the piles. Youse then withdrew the accusation that there was biscuits in the piles because every pile that was there that was labelled by a Crush and Haul stockpile sight, except for the one or the two that were responsible of Michael Vickery of which you pursued him years after me. Youse fined and followed him up for that because I didn't remove that pile, I removed every other pile from that site except for the asbestos piles because the asbestos piles weren't discovered to have asbestos in them until you guys come and took tests of that material. … [20(38)-21(18)] COMMISSIONER Q. I think it is relevant to understand when you said you didn't think it was a reasonable price-- A. Sorry, Commissioner, if I could add. So I take you back to 2016. I've got a yard that we're trying to get going and it gets closed down. This gets performed, this gets performed and then Melissa plants a piece of asbestos into my pile-- BEASLEY: I object to this. Q. Just a second, Mr Cauchi, just a second. BEASLEY: I object to this. This is not an answer to the question. Mr Cauchi has been served - Crush and Haul, courtesy of Mr Cauchi as its sole director, has been served with a notice requiring payment of these expenses. The witness has already told us he hasn't paid and his answer as to why it wasn't paid was that he didn't think it was reasonable. WITNESS: Because the - sorry, if I'm allowed to talk, can I know when I'm allowed to talk, mate? Because you're actually cutting in. BEASLEY Q. Go on, I'll actually let you go. A. So basically, you guys, you guys are the one that backed out and never pursued, I didn't pay because youse were in the - youse were the ones that were trying to frame me with the asbestos. I did remove all the material because it wasn't supposed to be there, I did get it removed. It wasn't removed by your date, okay? Paid the fine and then the clean-up notice. Well I cleaned the place up. … [36(47)-37(45)] COMMISSIONER: Just as a matter of procedure. I realise, and apologies, I didn't formally excuse Mr Cauchi earlier-- BEASLEY: …the witness had raised an allegation with the EPA planting the asbestos. COMMISSIONER: Yes. BEASLEY: …So I would ask that Mr Cauchi go back in the witness box please so I can get some clarification from him about that allegation. COMMISSIONER: Mr Lazarus? LAZARUS: The only thing I'd wish to say is I'm not going to be putting any submission to the Court because it's entirely irrelevant that the EPA planted anything. BEASLEY: I don't care about that. I care about the allegation made and I want to ask a question about it. This is about whether this applicant is fit and proper to have an EPL. I want to ask what was meant by that. That's his evidence, I'm entitled to ask a question. COMMISSIONER: We have no evidence before us. It doesn't form part of the applicant's case. BEASLEY: It's an answer given by this witness. I must be able to ask a question about it, with respect. COMMISSIONER: I'll allow the question but I will take the relevance as a - I'll consider the evidence. BEASLEY: I'm not following that. This is an answer that this witness gave, it becomes relevant once he's given that answer. I have to be entitled to put a question about it. LAZARUS: Only if it's relevant to an issue which is properly raised in the contentions. BEASLEY: I was asking about asbestos, we were asking about the penalty notice which is in issue. It's pleaded. COMMISSIONER: I'll allow the question but I would like it to stay within the confines of this application. … [38(16)-39(40)] Q. Do you remember I - dropping about two thirds of the way down the page - I was asking you some questions about asbestos, do you recall that? A. Yes. Q. Did you tell the Court that that asbestos had been planted by someone by the EPA? A. Yes. Q. Who? A. Melissa Ward. Q. She planted it? A. Yes. Q. An EPA officer planted the asbestos? A. Yes. Q. You saw that? A. Yes. Q. You saw her walk onto this site with a piece of asbestos and drop it there? A. I was distracted by one of the EPA officers. I was pulling the pads for him on the excavator. There was found to be no asbestos on the site, except for the friable. So this was a piece of bonded asbestos. There's photographs in your records and mine to show those pieces and the EPA withdrew the findings of that asbestos after we threatened the EPA with some action because we found you could tell from the photo that the piece had been put on the pile. And there as no, there was no asbestos found in any of our stockpiles and that's the reason why the costs for the testing of the stockpiles was never agreed upon and paid because you - EPA withdrew their - we withdrew their findings with the bonded piece of asbestos that they found. So that they then pursued Michael Vickery for the friable asbestos because they could not connect those two stockpiles with Crush and Haul as there was aerial shots given to you guys in our correspondence that showed that those two stockpiles that had the friable asbestos were there prior to Crush and Haul entering the site. Q. That was a very long answer. Dealing with it, breaking it up. The EPA officer's name was, did you say, was Melissa Wood? A. Ward, W-A-R-D. … Q. Did you see her take the asbestos on the land, and drop it somewhere? A. I seen the same piece-- Q. Did you see her take the asbestos on the land, and drop it there, yes or no? A. No. Q. You say you threatened the EPA with some form of litigation, what was that? A. No, there was a correspondence with the EPA that we would take it further if they did not withdraw. Q. Where is the correspondence? A. I haven't got it on me. Q. Was it from Crush and Haul? A. Yes. Q. I call for production of this letter to the EPA? … [40(35)-41(7)] COMMISSIONER: Closing submissions is where the parties want to go now? BEASLEY: No, I'm now having to get my client to make inquiries of this person, Melissa Ward, as to whether she planted asbestos on the site that Crush and Haul was occupying because that's the allegation. It's a pretty serious allegation to make against an officer of the EPA. I'm doing the best I can. I don't want to hold up submissions though. It's just that when submissions end I might need to either make some form of application, I don't know yet. We may not be able to contact - who knows where Melissa Ward is. She may not even work for the EPA anymore, I don't know. COMMISSIONER: You'd be happy to proceed with closing submissions? BEASLEY: I don't think we should waste the time we've got now even if something further happens. COMMISSIONER: Flagging that even when you finish closings, you might want to have a further- BEASLEY: Ultimately I'll have to take some further instructions and deal with it then but I can't deal with it absolutely right now. … [49(4)-(33)] BEASLEY: Just before Mr Lazarus resumes, Mr Cauchi, in his evidence relating to the matter we were discussing concerning the 2016 penalty notice and he said there was correspondence with the EPA concerning Ms Ward, I'm told the file is really big but at the moment that the only correspondence can be found is a, there might be more and we'll keep checking, but is a letter from Crush and Haul signed by Mr Cauchi dated 16 June 2017 so approximately ten months or so after the penalty notices are issued. And an EPA response that's got a stamp dated 15 August 2017. I'll tender them. I don't want to read them out to you because I don't think it's fair to the person involved, but what you'll see from the Crush and Haul letter is that there is a substantial complaint about Melissa Ward, although no complaint about planting evidence. The letter from the EPA is just a rejection of those allegations. I'll tender those, that correspondence please. One thing I don't want this going off onto and I'm sure - well I won't speak for Mr Lazarus but I'd be very disappointed if we ended up - well I'm not going to be asking you to make - resolve what happened back in 2016 regarding asbestos, but this is just to complete the picture. COMMISSION[ER]: Mr Lazarus, do you have a copy of these documents? LAZARUS: I do and I don't want to spend time arguing a relevance objection but they can be taken subject to relevance. COMMISSIONER: Very well. EXHIBIT #5 CORRESPONDENCE BETWEEN CRUSH AND HAUL AND EPA DATED 16/06/17 AND 15/08/17 TENDERED, ADMITTED WITHOUT OBJECTION … [59(13)-(27)] [LAZARUS:] The EPA through the cross-examination of Mr Cauchi appears to wish to raise an issue relating to asbestos contamination which has hitherto not found its way into any contention that has been raised by the EPA concerning the fit and proper person criterion or otherwise in these proceedings. No further action was taken by the EPA so far as the evidence would disclose. There's no evidence of environmental harm. We submit our primary position is you don't need to go into any of this because the penalty notices are to be given no weight. But in the event you do, you do have Mr Cauchi's evidence earlier today that the relevant stockpiles were there when Crush and Haul commenced operations and that Crush and Haul was unaware of the asbestos until the EPA commenced testing. But as I say, perhaps the one thing I agree with Mr Beasley, is that you making findings in relation to the asbestos issue is at best an irrelevant distraction, not something that is really necessary in the circumstances of this case. …

[11]

Exhibit 5 in Class 1 proceedings - Letters between EPA and Respondent dated June and August 2017

Following the call for documents (see above in [13]) the EPA called for correspondence relating to the allegation by Mr Cauchi of asbestos dumping at Badgerys Creek. In the course of closing submissions before the AC, the EPA identified and tendered these documents being letters from the Respondent to the EPA dated 16 June 2017 making a complaint about an officer of the EPA and a reply letter from the EPA to the Respondent dated 15 August 2017. I note that the complaint was not that asbestos was planted on the Respondent's land at Badgerys Creek by an EPA officer.

[12]

Email dated 16 June 2023 enclosing letters between EPA and Respondent

At the end of the Class 1 hearing the parties were allowed to provide further documents by 16 June 2023 relating to the call for documents (see above in [14]) made by the EPA during the Class 1 hearing. An email was sent to the AC by the EPA on 16 June 2023 with the consent of the Respondent enclosing a letter from the Respondent to the EPA dated 29 July 2016 and a letter in reply from the EPA to the Respondent dated 19 August 2016. The email sent to the AC is extracted below: … I am solicitor for the Respondent in the above proceedings. I have included the solicitor for the Applicant in this email, who consents to this communication. When reserving judgment in the above proceedings, Acting Commissioner Targett noted the parties were continuing to search for the correspondence Mr Luke Cauchi described alleging an EPA officer had placed an asbestos fragment on a stockpile at a premises in Badgerys Creek. EPA officers have located the attached two letters, being a letter from Mr Luke Cauchi to EPA officer Ms Celeste Forestal dated 29 July 2016 and a reply from EPA officer Mr Christopher McElwain dated 19 August 2016. The parties do not consider the letters raise any issues which would require the Court be addressed further. However, we draw to the Court's attention that the allegation at page 2 of the letter from Mr Cauchi does not accuse an EPA officer, and instead alleges: "we believe that this fragment may have been placed there by possibly a disgruntle employee or contractor…". We have conferred with the Applicant and this correspondence may be tendered by consent. May it please the Court. …

[13]

EPA's submissions

The EPA submitted an error of law may arise from a misapplication of the correct statutory test or misunderstanding of the law, irrational, illogical or unreasonable reasoning or decision-making, and/or from failing to have regard to relevant material (including claims, issues or evidence): Muscat Developments Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121 (Muscat Developments) at [32]-[33], Craig v South Australia (1995) 184 CLR 163; [1995] HCA 8 at 179. Failure to have regard to relevant material may result in a constructive failure to exercise jurisdiction: Georges River Council v S A F Group Pty Ltd [2021] NSWLEC 151 at [22], [46]-[48]. The duty to have regard to relevant material requires engagement with, and evaluation of, its contents: Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [80], Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 (Plaintiff M1) at [24] (Kiefel CJ, Keane, Gordon and Steward JJ) and [43] (Gageler J).
A decision-maker is required to give real, genuine, and proper consideration to the information before them and the submissions made. A failure to refer to a relevant claim or issue (and/or to relevant material) may ground an inference that there has been a failure to consider it: Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) (2010) 176 LGERA 119; [2010] NSWLEC 17 (Village McEvoy) at [74]-[77], Plaintiff M1 at [24]-[27], [108], Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 431; [2023] FCAFC 98 at [55], [60]. A claim or issue need not be expressly articulated, it can arise clearly on the material: Plaintiff M1 at [25]. An error will be material if, had it not been made, the decision under challenge could realistically have been different: Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 (Nathanson) at [1].
During the hearing before the AC Mr Cauchi made a very serious allegation against the EPA that one of its authorised officers planted asbestos at a property at Badgerys Creek which the Respondent occupied. There was no evidentiary foundation for that allegation. Having found that there was no evidence of the allegations, the AC did not consider the allegation relevant as to whether the Respondent was a fit and proper person to hold the EPL.
Raised as relevant to the sole contested issue before the AC was the fact that Mr Cauchi was prepared to make such an allegation at all (and, in turn, that it was unable to be substantiated once a call was made for Mr Cauchi to produce the documents he alleged existed and supported that allegation). In refusing to consider that evidence as stated at [108] of Crush and Haul (class 1), the AC erred in law as she failed to consider relevant material before her and her conclusion was irrational, illogical and/ or unreasonable. The AC's conclusion was also devoid of any reasoning.

[14]

Respondent's submissions

An appeal under s 56A of the LEC Act against a decision made by a Commissioner is limited to an order or a decision of the Court on a question of law.
The oral evidence of Mr Cauchi and Ex 5 were expressly referred to at [108] in Crush and Haul (class 1) and found to be irrelevant. The cover email and attached 2016 correspondence were not expressly referred to in the reasons. This ground fails for at least seven reasons.
First, the EPA's contention above in [17]-[21] is entirely new and not the subject of submissions made before the AC, let alone in a manner requiring reasoned consideration in the AC's reasons for decision. The EPA does not identify where submissions were made in the proceedings that support Ground 4. A review of the transcript and evidence demonstrates that no such submissions were made.
The email to the Court enclosing the 2016 correspondence from the EPA stated that 'The parties do not consider the letters raise any issues which would require the Court be addressed further.' That is, the EPA expressly eschewed the opportunity to make any submissions regarding that material. At no point did the EPA put a submission to the AC in the terms now sought to found Ground 4. At most the EPA noted in the email to the Court that '…we draw to the Court's attention that the allegation at page 2 of the letter from Mr Cauchi does not accuse an EPA officer, and instead alleges: "we believe that this fragment may have been placed there by possibly a disgruntle[d] employee or contractor".' The mere drawing to the AC's attention of a matter in the terms stated, in circumstances where it is otherwise said that the correspondence does not raise any issues which would require the AC be addressed further, cannot be elevated to foreshadow any of the submissions now sought to be advanced as founding an error of law.
The proposition that matters which were not the subject of submissions before the court should not be permitted to be raised for the first time on appeal was recently reaffirmed by the Court of Appeal in Sydney Metro v Expandamesh Pty Ltd [2023] NSWCA 200 (Expandamesh) at [87] (Leeming JA and Griffiths AJA).
Secondly, the EPA expressly indicated to the AC it was not asking for any findings as to the events of 2016 relating to asbestos. That is contrary to the position the EPA now seeks to take, to ask the Court to conclude that Mr Cauchi's allegations were 'unfounded'. The EPA should not be permitted to advance a ground of appeal to the extent that the matters sought to be raised required an interim finding of fact as to whether there was in fact asbestos at a property in Badgerys Creek as a step to making any further findings.

[15]

No failure to consider relevant matter

The EPA submitted this ground addresses the requirement to consider s 83(2)(g) (whether of good repute, having regard to character, honesty and integrity) of the POEO Act. The authorities cited by the EPA summarised above in [17]-[18] concerning the obligation to have regard to relevant material can be accepted at a broad level but how they apply in the circumstances of this case to support the EPA's Ground 4 is not apparent as I discuss below.
A key matter to consider in assessing this ground of appeal is how the EPA ran its case before the AC as the accepted principle in a s 56A appeal is that a party is bound by the way they conducted their case at first instance. The extracts of the transcript for the hearing on 13 June 2023 above in [13] show that in the course of cross-examination about a 2016 penalty notice issued to the Respondent and a failure to pay a costs notice Mr Cauchi its director made allegations about the behaviour of an EPA officer who he named. The EPA's counsel identified that the allegation could be relevant to the question of fit and proper person and sought to ask further questions in cross-examination, which occurred (see above in [13]). The transcript shows there was some toing and froing about the existence of documents supporting such an allegation. The EPA made a call for documents concerning the allegation in the course of the hearing. Documents were produced which became Ex 5 before the AC, summarised above in [15], which the AC referred to at [108].
The transcript of the hearing on 14 June 2023 (last day of hearing) above in [14] shows the parties' counsel discussed whether more documents may be produced and that further documents may be produced by the end of the week. The EPA's counsel stated that depending on what was produced an application may be made. The Commissioner was told she could reserve judgment, with the possibility of further documents being provided within a short timeframe.
No oral submission along the lines now put by the EPA in this appeal was made expressly to the AC, namely that Mr Cauchi had a propensity to make unsubstantiated allegations against the EPA and this was relevant to whether the applicant company was a fit and proper person as he is its sole director. No application to make an additional submission and/or amend the EPA's case to include this matter was made during the hearing by the EPA.

[16]

Ground 2: failure to consider the findings in Crush and Haul (criminal)

Ground 2 in the Amended Summons Commencing Appeal states: 2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely: a. the finding made by Preston CJ in Environment Protection Authority v Crush and Haul Pty Ltd [2022] NSWLEC 113 [(Crush and Haul (criminal))] that Crush and Haul committed an offence contrary [to] section 48 of the POEO Act recklessly; and b. the rejection by Preston CJ of evidence given by the director of Crush and Haul, Luke Cauchi, in that proceeding; c. the finding by Preston CJ that the offending conduct "was contrary to the legislative objective expressed in the offence under s 48(2) of the POEO Act, impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme"; d. the finding by Preston CJ that Crush and Haul (with Mr Luke Cauchi's knowledge) had, in connection with a previous application for an EPL, taken steps to conceal and avoid the regulator becoming aware of its involvement at the quarry; and e. the change in circumstances of Crush and Haul since the decision of Preston CJ, namely the reappointment of Mr Luke Cauchi as the sole director of Crush and Haul in circumstances where Preston CJ had placed weight on Mr Cauchi's prior resignation from that position.
The EPA submitted that Grounds 2(a)-(c) and (e) concern subss s 83(2)(a)-(c), (f)-(g) of the POEO Act. Ground 2(d) concerns subss 83(2)(c)-(d). Ground 2 alleges legal unreasonableness which includes failure to consider claims and material, making of illogical or irrational findings and failure to give adequate weight to relevant factors of significance. Ground 2 effectively overlaps with Ground 3.

[17]

Extracts of AC's judgment relevant to Grounds 2 and 3

Sections of the AC's judgment relevant to Grounds 2 and 3 in Crush and Haul (class 1) are extracted as follows [I have annotated the extract to indicate the ground upon which each paragraph is relied]: 3. Relevant history of environmental non-compliance … 3(a): The applicant [11] The applicant was found guilty of breaching s 48(2) of the POEO Act by Preston CJ in the decision of Environment Protection Authority v Crush & Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 (EPA v C&H; EPA v Cauchi). The applicant was found at [4]-[5] to have: "[4]…extracted, processed or stored more than 30,000 tonnes of extractive materials per year in 2018 at the Corindi Quarry. From 1 January 2018 to 31 December 2018, Crush and Haul sold 92,966.28 tonnes of extractive materials from Corindi Quarry. [5] Crush and Haul was accordingly required to hold an environment protection licence to carry on the scheduled activity of land-based extractive activity at the premises of Corindi Quarry. Crush and Haul did not hold such a licence at the time that the activity was carried on. It thereby committed an offence against s 48(2) of the POEO Act." [Ground 2(a)] [12] Relevantly, the applicant was found by Preston CJ to have: (1) committed the offence "recklessly", stating at [81]-[82]: "[81] In these circumstances, I find beyond reasonable doubt that Crush and Haul did commit the offence against s 48(2) of the POEO Act recklessly. Crush and Haul carried on the land-based extractive activity at Corindi Quarry with knowledge or foresight that the particular consequence or circumstance, that an environment protection licence was required for the premises by Crush and Haul extracting, processing or storing more than 30,000 tonnes per annum, was likely to result… I find Crush and Haul did have this knowledge or foresight of the likelihood of the consequence or circumstance, that the 30,000 tonnes threshold would be exceeded triggering the need to obtain an environment protection licence, occurring." (2) not have caused any environmental harm, stating, at [13]: "[13]…Crush and Haul's carrying on of the scheduled activity of land‑based extractive activity without holding an environment protection licence did not cause any actual harm to the environment." (3) committed an offence against s 48(2) of the POEO Act of "low to medium objective seriousness" at [90]. … 3(b): Mr Luke Cauchi [16] Mr Luke Cauchi is the current and only director of the applicant. Mr Luke Cauchi was relevantly convicted of an offence against s 169A(2) of the POEO Act in connection with the offence committed by the applicant discussed above in section 3(a) of this judgment. Preston CJ relevantly stated at [7]: "[7] In the circumstances where Crush and Haul committed an offence against s 48(2) of the POEO Act (which is defined as an executive liability offence in s 169A(1) of the POEO Act), Mr Cauchi was a director of Crush and Haul and Mr Cauchi knew or ought reasonably to have known that the executive liability offence would be or was being committed and failed to take all reasonable steps to prevent or stop the commission of that offence, Mr Cauchi himself committed an offence against s169A(2) of the POEO Act." [Ground 2(b)] [17] His Honour went on to state at [62] and [66]: "[62] I do not accept Mr Cauchi's assertion of his belief that Crush and Haul would not and did not exceed the 30,000 tonnes threshold during 2018… … [66] I also do not accept Mr Cauchi's assertion that he believed Crush and Haul could keep quarrying in excess of 30,000 tonnes once an application for an environment protection licence had been lodged with the EPA, regardless of whether an environment protection licence was actually granted by the EPA…" [18] However, unlike the applicant, his Honour held at [128] that the "EPA has not established beyond reasonable doubt that Mr Cauchi committed the offence against s 169A(2) of the POEO Act recklessly." [19] In relation to environmental harm, his Honour stated at [131] that the "EPA did not contend that Mr Cauchi's commission of the offence against s 169A(2) of the POEO Act caused actual environmental harm, that there was foreseeability of environmental harm, or that there were practical measures that might have been taken to prevent, control, abate or mitigate any environmental harm". [20] His Honour found the offence against s 169A(2) of the POEO Act committed by Mr Luke Cauchi was "of low objective seriousness" at [133]. … 5. Consideration of meaning and scope of term "fit and proper person" under the Protection of the Environment Operations Act … [Ground 2(c)] [64] However, the objects of the POEO Act include (at s 3(a)), "to protect, restore and enhance the quality of the environment". The licensing regime set out in Chapter 3 of the POEO Act seeks to regulate scheduled activities which "are by their nature activities that are either inherently or when conducted in a certain manner or extent likely to cause harm to the environment" (EPA v C&H; EPA v Cauchi at [16]). I therefore agree with the respondent's submission that in order to grant a Licence to the applicant in this matter, I must be satisfied that the applicant is a "fit and proper person" for the purposes of s 45(f) of the POEO Act. 6. Consideration of whether the applicant is a "fit and proper person" under the Protection of the Environment Operations Act … Section 83(2)(a) "That the person has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation" … [68] As set out above, the applicant was found guilty of breaching s 48(2) of the POEO Act by Preston CJ in the decision of EPA v C&H; EPA v Cauchi. The offence was found to be of "low to medium objective seriousness" (at [90]). [69] The applicant's conviction for a breach of s 48(2) of the POEO Act is a matter which I have considered in determining whether the applicant is a fit and proper person to be granted the Licence sought in this matter. [Ground 2(a)] [70] I note that the applicant's conviction under s 48(2) of the POEO Act was not trivial and was found by Preston CJ to have been carried out recklessly. However, I do not consider that one conviction, which did not result in environmental harm and which was found to be of low to medium objective seriousness, is determinative, on its own, that a person is not a "fit and proper" person to hold a Licence under the POEO Act. … Section 83(2)(b) "that, if the person is a corporation, a current or former director of the corporation or of a related body corporate - (i) has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation" Current director [73] Mr Luke Cauchi is the current and only director of the applicant. As set out above, at [16]-[21] of this judgment, Mr Luke Cauchi was relevantly convicted of an offence against s 169A(2) of the POEO Act in connection with the offence committed by the applicant under s 48(2) of the POEO Act considered above in relation to s 83(2)(a) (see EPA v C&H; EPA v Cauchi). [Ground 2(b)] [74] His Honour relevantly stated at [62] and [66] that: "[62] I do not accept Mr Cauchi's assertion of his belief that Crush and Haul would not and did not exceed the 30,000 tonnes threshold during 2018. Mr Cauchi knew that Crush and Haul was obliged under the sub management agreement to ensure continuous productivity of the quarry and a bare minimum of 30,000 tonnes per annum out the gate… … [63] I also do not accept Mr Cauchi's assertion that he believed Crush and Haul could keep quarrying in excess of 30,000 tonnes once an application for an environment protection licence had been lodged with the EPA, regardless of whether an environment protection license was actually granted by the EPA..." [75] However, his Honour found the offence against s 169A(2) of the POEO Act committed by Mr Luke Cauchi was "of low objective seriousness" (EPA v C&H; EPA v Cauchi at [133]). [76] Noting that the offence for which Mr Luke Cauchi was convicted related to the same conduct for which the applicant was convicted, in EPA v C&H; EPA v Cauchi, I similarly do not consider that Mr Luke Cauchi's single conviction, which did not result in environmental harm and which was found to be of low objective seriousness, is determinative of the applicant, through Mr Luke Cauchi as its sole director, not being a "fit and proper" person to hold a Licence under the POEO Act. [Ground 3] [77] This is particularly in circumstances where Mr Cauchi has no other convictions for environmental offences (Affidavit, Luke Cauchi, 24 April 2023, par 28), has expressed shame and embarrassment in relation to the 2022 convictions (Affidavit, Luke Cauchi, 24 April 2023, par 34), has educated, and is continuing to educate himself on his responsibilities as a director (Affidavit, Luke Cauchi, 24 April 2023, pars 36-38, 52-53, 68), and has committed to environmental compliance in the future (Affidavit, Luke Cauchi, 8 June 2023, pars 6 and 9). … [Ground 3] Former director - Mrs Louise Cauchi … Other matters … [94] In my consideration of s 83(2) and the numerous references to a "former director", and noting that s 83 is a non-exhaustive and non-binding list of matters for consideration, I agree with the applicant's submission that the weight to be placed on a former director's history of contraventions with environment protection licence should be considered in the context of their present and future influence or control over the conduct of the applicant company seeking to obtain a Licence. [95] The facts of this case are that Mrs Louise Cauchi only ceased to be a director of the applicant company in January 2023, is a 100% shareholder of the applicant, and the current sole director's mother. These facts must be considered in the context of Mrs Louise Cauchi's history of environmental non compliances and the findings made by Preston CJ in EPA v C&H; EPA v Cauchi at [106] that: "[106] I accept that there is a risk that Crush and Haul might reoffend whilst Mrs Cauchi is the sole director of Crush and Haul. Her record as a director of companies that breach the POEO Act is not a good one. Nevertheless, lessons can be learnt even if belatedly. I consider that in circumstances where Mrs Cauchi is the director of Crush and Haul there is a need for the sentence imposed on Crush and Haul for its offence to reflect specific deterrence. If this is done, Crush and Haul is less likely to reoffend." [96] The respondent submitted (in its written submissions at par 61) that "the "undertakings" which Crush and Haul claims Mr Cauchi and Mrs Cauchi have provided to the Court do not advance matters, given their continued pattern of breaching environment protection legislation, their convictions and their non-compliance with orders made by this Court (cf ASFC Part B [1(b5)]-[1(b7)] sic)." [97] The fact that Mrs Louise Cauchi has provided an undertaking to the Court dated 13 June 2023 (Ex G) suggests that the applicant acknowledges that Mrs Cauchi's environmental compliance history may present an issue in the applicant obtaining a Licence. I consider that Mrs Louise Cauchi's control over the current or future conduct of the applicant company is a matter of relevance in the determination of whether the applicant should be granted a Licence under the POEO Act. [98] The applicant argued in its written submissions that Mrs Louise Cauchi at par 72 "no longer has control of the operations of the company" and at par 74 "will have no involvement in the operational management of the applicant". The applicant's submissions go on to state at par 75 that: "The Court also has evidence before it that both Mrs Louise Cauchi and Mr Joe Cauchi no longer have direct or indirect control of the operational management of the applicant. The court can be comfortably satisfied that this is the case having regard to: (a) the personal circumstances or Mr and Mrs Cauchi (in particular the terminal health of Mr Joseph Cauchi, that they are now residing overseas; and their age) (Affidavit, Luke Cauchi, 24 April 2023 at par 8); (b) the written undertaking, dated 23 April 2013, provided by Mrs Louise Cauchi to the Court (Affidavit, Luke Cauchi, 24 April 2023 at par 48 and Exhibit LJC-2, Tab 3); (c) the evidence of Mr Luke Cauchi that it is time for generational change and providing undertakings to the Court and confirming that the applicant is willing to accept a condition restricting the involvement of Mr and Mrs Cauchi in the operational management of the Applicant (Affidavit, Luke Cauchi, 24 April 2023 at par 39 and 41-42); and (d) the applicant's proposed condition A4.1 below." [99] In relation to the concept of control, the respondent's primary argument appeared to be that this matter concerned a "family group of companies" (Tcpt, 14 June 2023, p 10 (20)-(23)) and "this family group has a history of offending under the legislation" (Tcpt, 14 June 2023, p 11, (16)-(17)). [100] However, the respondent did not provide any evidence that Mrs Louise Cauchi was presently controlling, or would control in the future, the conduct of the applicant company. [101] As stated above, Mrs Louise Cauchi provided an undertaking to the Court on 13 June 2023 which relevantly stated: "I undertake to the Land and Environment Court of New South Wales: 1. Not to exercise my [sic] powers, pursuant to s203C of the Corporations Act 2001 or by any other means, to remove Luke Joseph Cauchi as a Director or Secretary of Crush and Haul, and to appoint myself, or Joseph Cauchi, as a Director or Secretary of Crush and Haul in his place. 2. Not to exercise my powers, pursuant to s203C of the Corporations Act 2001 or by any other means, to appoint myself as a Director or Secretary of Crush and Haul. 3. Not to exercise my powers, pursuant to s 203C of the Corporations Act 2001 or by any other means, to appoint Joseph Cauchi (date of birth 1 October 1962) as a Director or Secretary of Crush and Haul." [102] Mrs Louise Cauchi is no longer a director of the applicant, did not provide affidavit evidence in the proceedings and was not cross examined during the hearing. I have therefore not placed material weight on the undertaking she provided to the Court on 13 June 2023. [103] As the current and only director of the applicant, I find the affidavit evidence and testimony of Mr Luke Cauchi to be highly relevant in determining whether the applicant is a fit and proper person to hold a Licence under the POEO Act. The affidavit of Mr Luke Cauchi, affirmed on 24 April 2023, relevantly provides the following: (1) "Having gone through the process of being convicted by the Court, I believe that I now have a better appreciation of the personal responsibilities of being appointed a director of a corporation and the importance of maintaining oversight of all matters and to not just rely on the advice of others, including my mother and father" (at par 38). (2) "I also undertake to the Court that whilst ever I am a Sole Director of the Applicant I will not permit the Applicant to employ mum (Mrs Louise Cauchi) or dad (Joseph Cauchi) in relation to any future operations of the Applicant, and will not permit them to hold positions as Directors or Secretaries of the Applicant" (at par 49). (3) "I further undertake to the Court that should I ever purchase any of the shares in the Applicant I will not exercise any rights under the Corporations Act 2001 (Cth) or by any other means to enable the Applicant to employ mother (Louise Cauchi) or father (Joseph Cauchi) in relation to any future operations of the Applicant, and will also not exercise any such rights to enable them to hold positions as Directors or Secretaries of the Applicant" (at par 50). (4) "Simply put, I want to turn over a new leaf and operate 100% in accordance with the law. Proof of my commitment is how we have pursued the development application and environment protection licence process, spending approximately $600,000 to ensure that we have all required approvals. I have environmental and planning consultants, environmental lawyers and other experts who the Applicant will pay a lot of money to make sure we comply with all environment protection laws in the future" (at par 66). [104] The affidavit of Mr Luke Cauchi, affirmed on 8 June 2023, relevantly provides the following: (1) "I am not looking to excuse, or explain away the past conduct of those other entities, or Louise Cauchi. Rather, what I have been trying to do is give the Court and EPA comfort that it can be confident that conduct is in the past, and that I will now be taking the Applicant forward under my own sole control, in a way that is committed to complying with environmental and planning laws" (at par 6). (2) "More than my father's health, between my parents, myself and my siblings, my parents and I have agreed that it is time for generational change… As both part of that generational change, and because of my father's health (and my parents ageing), I have now taken back control of the company and operation of the quarry, and intend on keeping that control - I have absolutely no intention of my parents taking on a directorship or management role in the company in the future. Moreover, I am determined to put my parents' (and particularly my mother's) compliance issues in the past, and turn over a new leaf to running a fully compliant, law abiding company" (at par 9). (3) "I am also conscious that if the Court grants the EPL to the company, that it would be a second chance to the company. I am fully aware that this means that we would be on a very "tight leash" and that any future breaches of a material nature may lead to the EPA or Court suspending or revoking the EPL. I have noted that the EPA proposes to include conditions on the EPL for audits of weighbridge data and CCTV (condition M10.1) quarterly, a monthly report listing the quantities of extractive material transported from the facility (M10.2), and 6-monthly volumetric surveys (M10.3). I accept these conditions, and embrace them - I wish to move forward with a law abiding company, and if granted an EPL, am happy to provide any reasonable information and data to the EPA to give it comfort that the company is complying with the law" (at par 10). [105] During cross examination I found Mr Luke Cauchi to be genuine in his remorse and embarrassment for his and the applicant's convictions in 2022. I note that Preston CJ made similar findings in EPA v C&H; EPA v Cauchi, at [138] stating: "[138] Mr Cauchi has expressed his genuine remorse for committing the offence… I accept Mr Cauchi's statements as evidencing his remorse for committing the offence. He has accepted responsibility for committing the offence, apologised for doing so and undertaken not to do so in future." [106] The respondent also accepted during the hearing that Mr Luke Cauchi is "ashamed and embarrassed" and "regretful" (Tcpt, 14 June 2023, pp 19 (7) and 20 (13)) about his and the applicant's convictions. [107] I also found Mr Luke Cauchi to provide evidence which he believed to be truthful, even if he grappled with some of the questions. For example, when asked if the applicant company had ever informed the respondent that it was dissatisfied with the respondent's cost compliance notice in 2016 requiring payment to the respondent of over $66,000 in relation to a premises at Badgerys Creek, Mr Cauchi, after some thought, stated that relevant correspondence had been provided to the EPA. The applicant was then able to tender evidence of this correspondence during the hearing (letter from the applicant to the respondent dated 7 October 2016 - Ex H). [108] For completeness I note that I make no findings in relation to Mr Luke Cauchi's claims of improper conduct by the EPA in 2016 in relation to a property at Badgerys Creek as there was no evidence of these allegations presented to me by either party (other than one letter from the applicant to the respondent dated 16 June 2017 (Ex 5) and Mr Cauchi's assertions during the hearing) and I do not consider them to be relevant as to whether the applicant is a fit and proper person to hold the Licence applied for concerning Corindi Quarry. [109] The respondent provided no evidence that the statements in Mr Luke Cauchi's affidavits of 24 April 2023 and 8 June 2023 and his evidence in Court that Mrs Louise Cauchi would not control the conduct of the applicant was false or inaccurate. The fact that Mrs Louise Cauchi is Mr Luke Cauchi's mother is, without more, insufficient to displace Mr Luke Cauchi's evidence that he will control the applicant's compliance with the Licence, if granted. [110] As stated previously, Mrs Louise Cauchi is a 100% shareholder of the applicant. However, I note that: (1) the compliance history of shareholders in an applicant company are not matters listed for consideration under s 83 of the POEO Act, and (2) the respondent did not advance any argument establishing that Ms Cauchi is presently controlling the conduct of the applicant, or would do so in future, by virtue of being 100% shareholder, despite the parties being directly asked to address this issue (Tcpt, 13 June 2023, p 41 (9)-(18)). [111] Although I have taken in consideration that Mrs Louise Cauchi is a 100% shareholder of the applicant, I do not consider that there is any cogent evidence before me to refute Mr Luke Cauchi's evidence that he will be taking the applicant forward under his "own sole control, in a way committed to complying with environmental and planning laws" (Affidavit, Luke Cauchi, 8 June 2023 at par 6). [112] I have therefore not assigned Mrs Louise Cauchi's history of contraventions of environment protection legislation material weight in the consideration of whether the applicant is a fit and proper person to hold a Licence under the POEO Act for the scheduled activities sought and have placed significantly more weight on the testimony and evidence of Mr Luke Cauchi in the hearing before me. [113] I note that "honesty" is one of the three characteristics espoused in Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156; [1955] HCA 28 to denote "fitness" with respect to an office. In the absence of any cogent evidence to the contrary, I find Mr Luke Cauchi, and through him the applicant, to be genuine and honest in his remorse for his and the applicant's past offences, and his intention to operate in accordance with environmental protection legislation and the conditions of any Licence issued under the POEO Act. … Section 83(c) "the person's record of compliance with the environment protection legislation" [Ground 2(d)] [121] Relevant to this head of consideration, the respondent states in its ASOFC in Reply (p 16-17) that the following facts should be considered: (1) The applicant was convicted for a breach of s 48(2) of the POEO Act in 2022. (2) The applicant was issued with two penalty notices under the POEO Act in 2016. (3) The applicant was issued with a cost compliance notice in 2016, while Mr Luke Cauchi was director, requiring payment to the EPA of over $66,000 for the costs of sampling and other remediation steps for the premises at Badgerys Creek. Payment was never made. (4) An application was made to the respondent for a Licence while the applicant was operating at Corindi Quarry in 2018. Mrs Louise Cauchi gave instructions for the application to be made in the name of the person subleasing the quarry to the applicant and the purpose of this was "to avoid the EPA realising that the Cauchi family 'have a share of the pie'" (EPA v C&H; EPA v Cauchi at [23] and [44]). (5) The applicant's 20 September 2022 application for an environment protection licence contained misleading information about the applicant's record of compliance as described above (this argument was not pressed at hearing on the basis that the respondent accepted that the relevant sections of the form that had been incorrectly filled out were done so inadvertently and there was no deliberate attempt to deceive the respondent (Tcpt, 13 June, p 68 (21)-(23)). [122] In relation to these arguments, the applicant argued: (1) The single breach of s 48(2) of the POEO Act for which the applicant was convicted was found by Preston CJ to be of low to moderate objective seriousness. (2) There is no pattern of conduct arising from the issue of the two penalty notices in 2016 and the offences committed under s 48(2) by the company or the offence committed by Mr Luke Cauchi, nor was there any proof of an offence in relation to the conduct in 2016 (Tcpt, 14 June, p 28 (32)-(26)). (3) According to the respondents own Prosecution Guidelines (Ex C, tab 7 - EPA Prosecution Guidelines, March 2013, [5.1.1]), penalty notices are issued for "minor breaches" which are "not considered serious enough to warrant instituting Court proceedings". Further, the applicant argued that "the payment of a penalty notice doesn't constitute an admission or amount to a conviction of the offence" (Tcpt, 13 June, p 59 (7)-(9)). The applicant also submitted that based on the evidence, the material the subject of the relevant notices was removed but just not within the time period specified by the respondent (Tcpt, 13 June, p 58 (29)-(30)). (4) In relation to the outstanding amount of $66,000 for the respondent's costs at Badgerys Creek issued in 2016, the respondent submitted that there is "clear evidence that there was a bona fide dispute about it, in addition to the fact that the EPA hasn't pursued the matter in the previous seven years" (Tcpt, 14 June, p 26 (9)-(11)). … [Ground 2(d)(e)] [125] In relation to the application made to the respondent for a Licence, while the applicant was operating at Corindi Quarry in 2018, which contained false information at the instruction of Mrs Louise Cauchi, no evidence was provided that Mr Luke Cauchi had authorised or actioned this conduct. I have placed significant weight on Mr Luke Cauchi's evidence that he will have "sole control" of the applicant going forward (Affidavit, Luke Cauchi, 8 June 2023, par 6), is "aware of [his] obligations in the role of director" (Affidavit, Luke Cauchi, 24 April 2023, par 53) and "wishes to move forward with a law abiding company" (Affidavit, Luke Cauchi, 8 June 2023, par 10). … [127] The applicant is seeking a Licence so that it may lawfully carry out the activity it was convicted of carrying out unlawfully by Preston CJ in the EPA v Crush and Haul; EPA v Cauchi litigation. It was not alleged by the respondent that the applicant has carried out any unlawful activities, under environment protection legislation or otherwise, since those activities in 2018 for which it was convicted in that litigation. [128] I do not find the applicant's record of compliance with the environment protection legislation to be so poor that it would result in it not being considered a fit and proper person for the purposes of obtaining a Licence under the POEO Act. Section 83(d) "if the person is a corporation, the record of compliance with the environment protection legislation of any current or former director of the corporation or of a related body corporate." Current director … [130] It was not alleged by the respondent that Mr Luke Cauchi has carried out any unlawful activities, under environment protection or otherwise, since those activities in 2018 for which he was convicted. [131] I note that Mr Luke Cauchi was convicted of an offence arising out of the same conduct for which the applicant was convicted under s 48(2) of the POEO Act. For the reasons set out in relation to the applicant above at [121]-[128], I do not find Mr Luke Cauchi's record of compliance with environment protection legislation to be so poor as to warrant a determination that the applicant is not a fit and proper person to hold a Licence under the POEO Act by virtue of Mr Luke Cauchi being its sole director. … Section 83(e) "Whether, in the opinion of the appropriate regulatory authority, the management of the activities or works that are or are to be authorised, required or regulated under the relevant licence are not or will not be in the hands of a technically competent person" … [Ground 3] [144] In the absence of any cogent evidence to the contrary, Mr Luke Cauchi has demonstrated insight into the responsibilities held by a director (Affidavit, Luke Cauchi, 24 April 2023, pars 35-38) and therefore has "knowledge" for the purposes of the second characteristic considered in Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156; [1955] HCA 28 to denote "fitness" with respect to an office. Further in the absence of any cogent evidence to the contrary, I accept that the applicant will be in the hands of a technically competent and therefore "able" and "knowledgeable" person, being Mr Luke Cauchi. Section 83(f) "Whether, in the opinion of the appropriate regulatory authority, the person is of good repute, having regard to character, honesty and integrity" … [Ground 2(a)] [147] I note that the applicant's conviction under s 48(2) was not trivial and was found by Preston CJ to have been carried out recklessly. However, I do not consider that one conviction, on its own, which did not result in environmental harm and which was found to be of low to medium objective seriousness, amounts to a person not being of good repute. I similarly do not find that the two penalty notices issued to the applicant in 2016, in conjunction with the 2022 conviction, amount to the applicant not being of good repute. For these reasons, I consider that the applicant is presently of good repute. Section 83(g) "if the person is a corporation, whether, in the opinion of the appropriate regulatory authority, a current or former director of the corporation or of a related body corporate is of good repute, having regard to character, honesty and integrity" Current director … [Ground 2(b)] [149] I note that Mr Luke Cauchi's conviction under s 169A of the POEO Act was similarly not trivial. In addition, Preston CJ did not accept all of Mr Cauchi testimony (EPA v C&H; EPA v Cauchi at [62]-[66]). However, I have no evidence before me to refute Mr Luke Cauchi's affidavit evidence and testimony in Court that Mr Luke Cauchi is: (1) "ashamed and embarrassed" by the applicant's and his own conviction in 2022 (Affidavit, Luke Cauchi, 24 April 2023 at par 34); (2) determined to "turn over a new leaf to running a fully compliant, law-abiding company," (Affidavit, Luke Cauchi, 8 June 2023 at par 9); and (3) is "aware of [his] obligations within the role of director" (Affidavit, Luke Cauchi, 24 April 2023 at par 53). [150] The respondent accepted during the hearing that that Mr Luke Cauchi is "ashamed and embarrassed" and "regretful" (Tcpt, 14 June 2023, pp 19 (7) and 20 (13)). [151] I therefore do not consider that one conviction, on its own, which did not result in environmental harm, which was found to be of low objective seriousness, and for which the person acknowledges his mistakes and is committed to future environmental compliance, amounts to a person not being of good repute. … Former director - Mrs Louise Cauchi [Ground 2(d)] [154] The respondent states in its ASOFC in Reply at p 22 that "the Respondent has formed the view the former director of the Applicant, Mrs Louise Cauchi, is not of good repute as Mrs Cauchi has previously breached environment protection legislation including providing misleading information to the Respondent as described above". [Ground 2(d)] [155] Mrs Louise Cauchi's environmental compliance history is "not a good one" (EPA v C&H; EPA v Cauchi at [106]) and would indicate a disregard for compliance with environmental legislation. [Ground 2(d)] [156] Like with Mrs Louise Cauchi's environmental compliance history, I find that Mrs Louise Cauchi's reputation is only relevant insofar as Mrs Louise Cauchi is established to currently control or be likely to control in future, the conduct of the applicant in relation to its compliance with the Licence applied for. As set out previously, I do not consider the respondent to have established: (1) that Mr Luke Cauchi's affidavit and oral evidence that he will control the entity is false or inaccurate; (2) that Mrs Louise Cauchi is controlling, or will control, the applicant's conduct going forward; or (3) how Mrs Louise Cauchi could or would control the company by virtue of being 100% shareholder of the applicant. [Ground 2(d)] [157] I therefore do not need to consider whether Mrs Louise Cauchi is of good repute for the purposes of determining whether the applicant is a fit and proper person to hold a Licence under the POEO Act. … 7. Decision regarding whether the applicant is a "fit and proper person" … [178] My reasons for this determination are as set out above, but can be generally summarised as follows: [Ground 2(a)] (1) the applicant has only one prior conviction under s 48(2) of the POEO Act where no environmental harm was caused and was deemed to be of low to medium objective seriousness (although it is noted that the offence was found by Preston CJ to have been carried out recklessly); [Ground 2(a)] (2) the current sole director, Mr Luke Cauchi, has only one prior conviction, being an executive liability offence under s 169A(2) of the POEO Act connected to the offence for which the applicant was convicted as set out above. This offence was found by Preston CJ to not have been carried out recklessly and to be of low objective seriousness. His Honour similarly found the offence to have caused no environmental harm; (3) I find Mr Luke Cauchi to be honest and genuine in his remorse for his and the applicant's 2022 convictions; (4) I have placed material weight on Mr Luke Cauchi's evidence that he will have "sole control" of the applicant going forward, is aware of his obligations in the role of director, and wishes to move forward with a law abiding company; (5) the former director, Mrs Louise Cauchi has a more concerning compliance history, however, is no longer a director of the applicant and there was no cogent evidence provided which refuted Mr Luke Cauchi's affidavit evidence and testimony that he will be in control of the applicant and its activities going forward; (6) the respondent did not contend in the hearing that the activities sought to be licensed will not be managed and in the hands of a technically competent person. In the absence of any cogent evidence to the contrary, I have accepted that the activities sought to be licensed will be managed and in the hands of a technically competent and able person; (7) the respondent did not contend in the hearing that the applicant does not have the financial capacity to comply with the obligations proposed to be imposed under the licence. In the absence of any evidence to the contrary, I have accepted that the applicant has the financial capacity to comply with the obligations proposed to be imposed under the licence; and (8) the applicant's outstanding costs owed to the respondent are of little weight as the: (a) 2016 costs were disputed by the applicant and not ultimately pursued by the respondent (on evidence before the Court); and (b) outstanding costs from the EPA v Crush and Haul; EPA v Cauchi litigation is only six months old and there was undisputed evidence before the Court from Mr Luke Cauchi that these costs will be paid in the near future.

[18]

Transcript

Sections of the transcript of the Class 1 hearing on 13 June 2023 are extracted below: [Ground 2(e)] [pp 11(37)-12(11)] [BEASLEY] Q. …Just generally, you were the sole director of the applicant, Crush and Haul, at the time the company was created in October 2014, is that right? [Mr CAUCHI] A. Correct, yeah. Q. As we've just heard, you remain the sole director of the applicant until February 2022, around February 2022? A. Yeah, yeah, yeah. Q. Then you resigned as a director for a period of time and your mother, Louise, stepped in as director of the applicant, correct? A. Yeah. Q. And she was a director of Crush and Haul until 31 January this year, correct? A. Mm-hmm. Q. You just have to say "yes" for the transcript, sir. A. Yes, yes, yep. Q. But since 31 January 2023, you've become the sole director again of Crush and Haul? A. Yes. … [Ground 2(b)] [p 29(23)-(40)] [BEASLEY] Q. Do you recall saying in your affidavit in those proceedings that you thought that once you applied for an EPL you were allowed to keep quarrying, do you remember that? [Mr CAUCHI] A. Yes. Q. Do you remember Justice Preston didn't accept that evidence? A. Yes. Q. He didn't accept your assertion that Crush and Haul wouldn't exceed the 30,000 tonne limit, do you remember that? OBJECTION. RELEVANCE. QUESTION PRESSED. LEGAL ARGUMENT. QUESTION ALLOWED Q. You understand that in his judgment - I am going to abbreviate this, I don't think I should have to but I am - you understand that Justice Preston didn't accept that Crush and Haul believed it hadn't exceeded the 30,000 tonne limit, do you remember that? … LAZARUS: … [Ground 2(c)] [p 55(32)-(37)] Turning then to para 13 and the question of extent of harm. Paragraph 14, second line - I may as well read all of para 14, "The prosecutor bore the onus of establishing environmental harm and the EPA did not establish that such harm was caused in this case". Although we note his Honour's findings at para 16 that, "Scheduled activities are…to the environment". Paragraph 17, the reference to impeding the achievement of the objects of the Act. … [Ground 2(b)] [p 55(39)-56(1)] Then commencing at para 18 is the consideration of state of mind. Paragraph 20, Mr Cauchi, these are references to Mr Luke Cauchi, was aware there was a limit of 30,000 tonnes and that an EPL would be required and he repeated that evidence in the box earlier today. There's a long discussion about the advice that was received by a particular consultant which I won't read to you, Commissioner. The critical findings are at 45. "Crush and Haul…issued the EPL". Then further on the question of state of mind, para 62, "I do not accept Mr Cauchi's assertion of his belief that Crush and Haul would not and did not exceed the 30,000-tonne threshold during 2018". 66, "I also do…was actually granted". That was on the basis of advice received by Mr Israel, but be that as it may, we don't challenge his Honour's finding in that respect. … [Ground 2(e)] [p 56(36)-(41)] Then in terms of the likelihood of reoffending, that commences at 102. 103, "The EPA accepted…and transport industry". The position factually has changed since the evidence and indeed since that judgment. So we accept that you would need to qualify that finding by reference to the fact that Mr Luke Cauchi is now back in the Crush and Haul business. Then you'll see there about four lines down, "Companies of which…as a director". … [Ground 2(e)] [pp 57(46)-58(4)] … Then 139, in terms of the likelihood of reoffending, 139, Mr Cauchi resigned as a director in February 2022 and now runs a different business. The EPA accepted that he's [not] likely to reoffend. At 140, "In circumstances where…unlikely to reoffend". We say that irrespective of the change of business, the finding by the Chief Judge that Mr Cauchi has insight into his offending and is genuinely remorseful would similarly and irrespective of the change of business, result in a finding that there is - or that he is unlikely to reoffend. … [Ground 2(d)] [p 60(4)-(15)] We haven't heard anything about the two final matters in terms of the cross-examination of Mr Cauchi. If I'm told during the course of my address that these matters are no longer pressed, then I'll move on, but they were still raised in the EPA's submissions so I need to deal with them. The first is really a short point and that is in a licence application made in 2018 an application was made by Mrs Louise Cauchi in the name of the sub-lessee rather than in the name of Crush and Haul despite the fact that this was to be an application in effect by Crush and Haul for an EPL. This is not a breach of any environmental protection legislation and frankly, hardly a serious matter. It's not the basis of any particular finding and in any event, it was conduct of Louise Cauchi, had nothing to do with Luke Cauchi.

[19]

Respondent's Amended Statement of Facts and Contentions before the AC

The Respondent's Amended Statement of Facts and Contentions (Amended SOFAC) before the AC are relevantly extracted below (track changes omitted): PART A - FACTS … Status of the Applicant … [Ground 2(e)] [36] As noted above, from 31 January 2023, Mr Luke Cauchi was re-appointed as sole Director and Secretary of the Applicant.

[20]

EPA's Amended Statement of Facts and Contentions in Reply before the AC

The EPA's Amended SOFAC in Reply before the AC is relevantly extracted below (track changes omitted): PART A - FACTS … History of Corindi Quarry since being occupied by the Applicant … [Ground 2(d)] [15] The Respondent admits paragraph 15 of the SOFAC and says further: … (b) An application was made to the Respondent for an environment protection licence while the Applicant was operating at Corindi Quarry in 2018. Mrs Louise Cauchi gave instructions for the application to be made in the name of the person subleasing the quarry to the Applicant and the purpose of this was: "to avoid the EPA realising that the Cauchi family 'have a share of the pie'": Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 at [23] and [44]. The environment protection licence was not granted. … [Ground 2(b)] [21] The Respondent admits paragraph 21 of the SOFAC and says further Chief Justice Preston found at [16]-[17]: Scheduled activities are by their nature activities that are either inherently or when conducted in a certain manner or extent likely to cause harm to the environment. Land-based extractive activity, where more than 30,000 tonnes of material is extracted, processed or stored at premises, is declared to be a scheduled activity. The environmental harm that might be caused by the carrying on of such a scheduled activity is better able to be managed by the person who wishes to carry on the activity holding a licence that authorises the activity to be carried on at the premises and by carrying on the activity in accordance with the licence. Crush and Haul's conduct in extracting, processing or storing more than 30,000 tonnes of extractive materials at Corindi Quarry without holding a licence was contrary to the legislative objective expressed in the offence under s 48(2) of the POEO Act, impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme. [Ground 2(b)] [22] The Respondent admits paragraph 22 of the SOFAC and says further Chief Justice Preston found: (a) at [61]-[66] on Mr Luke Cauchi's evidence in the proceedings: "I do not accept Mr Cauchi's assertion of his belief that Crush and Haul would not and did not exceed the 30,000 tonnes threshold during 2018… I also do not accept Mr Cauchi's assertion that he believed that Crush and Haul could keep quarrying in excess of 30,000 tonnes once an application for an environment protection licence had been lodged with the EPA, regardless of whether an environment protection licence was actually granted by the EPA." (b) at [73]-[75] on Mrs Louise Cauchi's evidence in the proceedings about her asserted belief the Applicant had not exceeded the threshold for obtaining an environment protection licence: "I do not accept that Mrs Cauchi in fact held that belief - it is inconsistent with her conduct and the facts." (c) at [78]-[81]: "I reject Crush and Haul's submission that it believed that it had not exceeded the 30,000 tonnes threshold. To the contrary, I find Crush and Haul was aware that it would and did exceed the 30,000 tonnes threshold that would require it to obtain an environment protection licence but decided to continue carrying on the land-based extractive activity at Corindi Quarry regardless. … In these circumstances, I find beyond reasonable doubt that Crush and Haul did commit the offence against s 48(2) of the POEO Act recklessly." [Ground 2(e)] [22A] The Respondent admits paragraph 22A is a quote from the judgment Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 and says further the first sentence of paragraph 139 is necessary context for why the EPA and the Court accepted Mr Cauchi was unlikely to reoffend: "Mr Cauchi resigned as a director of Crush and Haul in February 2022 and now runs a different business in the civil and transport industry in the Sydney region." … PART B - CONTENTIONS … The Applicant is not a fit and proper person [1] The Applicant is not a fit and proper person to hold an EPL, having regard to the considerations set out in section 83(2) of the POEO Act. The particulars of each relevant consideration in that section are set out in the table at Annexure A to this SOFAC in Reply. … Particulars … [Ground 2(c)] (b) Environment protection licences authorise activities that necessarily include a risk of harm to the environment. As Chief Justice Preston commented in Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113: "Scheduled activities are by their nature activities that are either inherently or when conducted in a certain manner or extent likely to cause harm to the environment". The POEO Act provides for a regulatory regime in addition to development consents to address the risk. The fact development consent has been granted for the Applicant's proposed activity does not mean an environment protection licence should also necessarily be granted. The POEO Act provides for additional considerations, such as whether an applicant is a fit and proper person, to be considered before granting an environment protection licence. … Response to the Applicant's Contentions [Ground 2(e)] [7(b)(ii)] In the decision Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 the Court took into account the "risk that Crush and Haul might reoffend whilst Mrs Cauchi is the sole director of Crush and Haul" [at [106]] while considering the need for specific deterrence when imposing a penalty. A penalty reflecting the need for deterrence has been imposed on the Applicant. It does not follow that the Applicant is in fact deterred from future offending. In any event this deterrence does not entirely mitigate the risk of reoffending. The Respondent accepted that Mr Luke Cauchi was unlikely to reoffend only on the basis of the evidence given by Mr Cauchi that he had left the quarrying business (at [139]).

[21]

EPA's written submissions before the AC

The EPA's written submissions before the AC filed 9 June 2023 are relevantly extracted below (footnotes omitted): [35] Section 83(2)(a): … … [Ground 2(c)] [37] Crush and Haul's conduct in extracting, processing or storing more than 30,000 tonnes of extractive materials at Corindi Quarry without holding a licence was found by Preston CJ to be "contrary to the legislative objective expressed in the offence under s 48(2) of the POEO Act, impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme [in Crush and Haul (criminal) at [17]]. … [43] Section 83(2)(c): This consideration pertains to Crush and Haul's record of compliance with environment protection legislation. Crush and Haul was convicted of an offence against the POEO Act in 2022. The following matters should also be noted: … [Ground 2(d)] d) An earlier EPL application made in 2018 contained misleading information about the applicant for the licence, in that Mrs Cauchi had given instructions for that application to be made in the name of the person subleasing the quarry to Crush and Haul, the purpose of which was "to avoid the EPA realising that the Cauchi family 'have a share of the pie'" [in Crush and Haul (criminal) at [23], [44]]. … Matters raised in Crush and Haul's statement of facts and contentions (ASFC) … [Ground(e)] [60] Secondly, Preston CJ's finding that Crush and Haul "should be less likely to offend" proceeded on the footing that Mr Cauchi had resigned as a director of Crush and Haul and operated a business in the civil and transport industry [in Crush and Haul (criminal) at [103]]. Yet Mr Cauchi is presently the director of Crush and Haul. …

[22]

EPA's submissions

In the Class 1 proceedings the EPA relied on an extended history of environmental non-compliance by the Respondent, its directors (former and current), and related companies. A key decision is Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 (Crush and Haul (criminal)), in which both the Respondent and Mr Cauchi were found guilty of offences under the POEO Act (namely, for undertaking scheduled activities on the Land without an EPL).
The AC referred to Crush and Haul (criminal) at [11]-[12], [16]-[20], [68]-[70], [73]-[76], [95], [105], [121]-[122], [127], [147], [149], [151], [155], and [178], but concluded that 'one conviction, which did not result in environmental harm and which was found to be of low to medium objective seriousness' was not 'determinative' and did not amount to either the Respondent or Mr Cauchi not being persons of 'good repute' at [70], [76], [147], [151].
Crush and Haul (criminal) at [33]-[43] was relevant to that principal contested issue. The criminal judgment comprised material that was squarely before the AC and had to be considered to the extent that it bore upon the Respondent's fitness and propriety to hold an EPL irrespective of any express argument made in respect of the judgment. In that judgment, representing as it did the most recent judicial action taken against the Respondent (and Mr Cauchi) for committing offences against provisions in the very Act under which it made its application for an EPL, it was not open to the AC to consider some but not other parts of it, the entire judgment had to be considered to the extent that it bore upon the Respondent's fitness and propriety to hold an EPL.

[23]

Ground 2(a)

The AC failed to consider, that is intellectually to engage with or evaluate, Preston CJ's findings about the Respondent having committed an offence contrary to s 48 of the POEO Act recklessly. Instead, the AC placed undue weight on the findings that Mr Cauchi had not acted 'recklessly' and that his offending conduct (as that of the Respondent) was of 'low objective seriousness' in Crush and Haul (criminal) at [17]-[18], [74]-[75] (point 1). In Crush and Haul (class 1) the AC further failed: 1. To have regard to the finding in Crush and Haul (criminal) that the Respondent had committed the offence against s 48(2) of the POEO Act recklessly (instead merely 'noting' this fact at [12], [70], [147], [178(1)] in Crush and Haul (class 1)) (point 2); 2. to refer at all to other adverse findings made in Crush and Haul (criminal) as to the Respondent's claimed knowledge at [78]-[81], [129] in Crush and Haul (criminal) (point 3); 3. to recognise that it was Mr Cauchi's personal knowledge that was ultimately the basis for the finding that the Respondent had acted 'recklessly' in Crush and Haul (criminal) at [54], [70], [129] (point 4); and 4. to recognise Mr Cauchi's concession of his failure to take all reasonable steps to prevent or stop the commission of the offence by the Respondent in Crush and Haul (criminal) at [122], [128] (point 5).
In reply to the Respondent's submission, Crush and Haul (class 1) at [12] did not form a part of the AC's dispositive reasoning but is merely her summary of the background to the matter. Where, as here, a particular matter is given only cursory or formalistic consideration or reference, it may be inferred that it has not in fact been taken into account: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99; [2011] FCAFC 59 at [44], Stambe v Minister for Health (2019) 270 FCR 173; [2019] FCA 43 at [107]-[113], Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76 at [267]. The Respondent failed to grapple with that evidence instead discounting the fact of the conviction. No finding was made as to how the Respondent's reckless offending was relevant to its fitness and propriety to hold an EPL.

[24]

Ground 2(b)

The AC further failed to have regard to the fact that Preston CJ expressly rejected sworn evidence of Mr Cauchi and made findings that he in fact knew of matters he had denied knowing: Crush and Haul (criminal) at [61], [62], [66]. Such findings were relevant to the assessment of Mr Cauchi's honesty, integrity, and character and thus to the question of whether the Respondent was a fit and proper person.
The rejection of Mr Cauchi's evidence by Preston CJ was expressly raised in the Class 1 proceedings, both with Mr Cauchi directly in cross-examination and by the counsel for the Respondent (see transcript above in [65]). These findings which were relevant to the AC's broader consideration of Mr Cauchi's honesty, integrity and character and whether his evidence ought to have been accepted were not engaged with in Crush and Haul (class 1).
The Respondent likewise failed to recognise that the EPA's submissions directed the AC's attention to the relevance of these 'recklessness' findings in this broader context as to fitness and propriety generally, orally as extracted above in [66] and in its Amended SOFAC in Reply at par 22 above in [68]. The AC did not engage with Preston CJ's disbelief of Mr Cauchi's evidence at [17], [74] or [149] in Crush and Haul (criminal). The AC only set out [62], [66] from Crush and Haul (criminal) in the Crush and Haul (class 1) at [74].

[25]

Ground 2(c)

The AC failed to recognise that Preston CJ had also made a finding that, notwithstanding the absence of that form of harm, the conduct of itself 'was contrary to the legislative objective expressed in the offence under s 48(2) of the POEO Act, impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme': Crush and Haul (criminal) at [13]-[17], [117]-[118]. Harm of that kind is equally significant and serious, and relevant to the issue before the Court: Bankstown Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 at [50]; Environment Protection Authority v Ace Demolition & Excavation Pty (No 2) [2023] NSWLEC 3 at [48]-[50], [54]; Environment Protection Authority v M A Roche Group Pty Ltd [2014] NSWLEC 114 at [19]-[20]; Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23].
This was a matter mentioned in the EPA's Amended SOFAC in Reply at pars 21 and 22 above in [68] and the EPA's written submissions before the AC at par 37 above in [70]. The Respondent's counsel made submissions before the AC on the matter as extracted above in [65]. The reference made by the AC at [64] to the objects of the POEO Act was, when read in context, directed to consideration of the meaning and scope of the term fit and proper person. It was not a consideration by the AC of Preston CJ's particular findings as to the harm caused by the Respondent's offending conduct.
In circumstances where this matter was of central relevance to the matters listed in subss 83(2)(a)-(e) and (g) of the POEO Act, the proper inference to draw from the failure of the AC to refer to this important aspect of Preston CJ's decision was that it was not considered (compared to Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [52]). It was the kind of matter that had it been considered would have been referred to in Crush and Haul (class 1).

[26]

Ground 2(d)

The AC failed to give proper consideration to the fact that Preston CJ had found that the Respondent, when previously applying for an EPL, had taken steps to conceal and avoid the EPA becoming aware of its involvement at the quarry, being communications to which Mr Cauchi and Mrs Cauchi were privy at [23]‑[31], [44], [53]-[54] of Crush and Haul (criminal). Apart from a brief reference to the EPA's submission on this issue in the context of addressing s 83(2)(c) of the POEO Act in Crush and Haul (class 1) at [121], there was no evaluation of it in the AC's dispositive reasoning at [123]-[128]. Again, it would, therefore, be readily inferred that the AC failed to have regard to that matter.
The matter is neither an entirely new point raised on appeal, nor was it put narrowly, in response to the criticism of the Respondent before the AC. The Respondent's counsel directly addressed the relevance of the 2018 application for an EPL before the AC (see above in [65]). The EPA expressly identified the matter in par 43(d) of the EPA's written submissions above in [70] and in par 15(b) and Annexure A of the EPA's Amended SOFAC in Reply above in [68]‑[69]. The AC made an error at [125] of Crush and Haul (class 1) by confining consideration of the 2018 EPL application to the findings made with respect to Mrs Cauchi and ignoring Preston CJ's findings as to Mr Cauchi and the Respondent. Notably [125] of the AC's judgment makes no reference to the findings that: (i) Mr Cauchi was copied to the e-mail in which instructions were given to make the EPL application in another entity's name (and subsequent communications); (ii) it was Mr Cauchi's personal knowledge and evidence that was (largely) sought to be relied upon by the Respondent to explain its actions in connection with the previous EPL and activities, being evidence which Preston CJ ultimately rejected, finding that Mr Cauchi's sworn testimony was inconsistent with his conduct and actual knowledge; and (iii) Mr Cauchi was, at the time of those actions, the sole director of the Respondent, and thus responsible for the actions of the company.

[27]

Ground 2(e)

The AC also failed to have regard to the fact that Preston CJ's findings on the likelihood of the Respondent reoffending at [103], [139]-[140] were, in part, premised on the resignation of Mr Cauchi as director of that company in Crush and Haul (criminal). Mr Cauchi has since been reappointed as the sole director of the company. That reappointment (and reversal of the circumstances considered by Preston CJ) ought to have been considered and given weight. The AC failed to have regard to that finding. The likelihood of reoffending was not marginal given the Respondent's counsel drew attention to the change of Mr Cauchi's position in the business and the EPA highlighted this change in its Amended SOFAC in Reply at par 22A (see above in [68]) (as well as the Respondent in its SOFAC above in [67]). The matter was also identified in the EPA's written submissions before AC extracted above in [70] and orally by the EPA as extracted above in [65], [66]. However the error is characterised, a failure to have regard to evidence or misunderstanding the evidence, is one of law.
Together, these failures to consider relevant aspects of Preston CJ's decision, and resultant failure to give them appropriate weight when considering whether the Respondent was a fit and proper person to hold an EPL, constituted errors of law which in turn led to the AC making a legally unreasonable decision (itself an error of law). Where there has been a failure to give adequate weight to relevant factors of great importance, a decision may be set aside on the basis that it is unreasonable: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend) at 30, 41, 71, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [72].

[28]

Respondent's submissions

The EPA's limbs in respect of Ground 2 are constructed on the shaky premise that a Commissioner must address every argument or piece of evidence advanced by a party (or in this case every potentially relevant paragraph from Crush and Haul (criminal)) in his or her reasons for decision. Nowhere in its submissions does the EPA refer to material before the AC (whether that be its Amended SOFAC in Reply, written submissions, evidence, or oral address) which demonstrates that any of the asserted limbs in Ground 2 were a principal contested issue.
As each of the limbs assert a failure to consider it is convenient to address common grounds upon which each of those limbs would fail before dealing with the further reasons specific to each limb as to why that limb would not be upheld. An absence of reference in the reasons for decision to a certain matter does not of necessity mean that the AC did not consider that matter: Ceerose at [61]-[63] (Payne JA, Ward ACJ agreeing at [1]). There was no obligation upon the AC to address every issue or piece of evidence advanced by the EPA: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 (Segal) at [44]‑[45], [62], [92], [93], [99], and Village McEvoy at [26].
Moreover, the EPA must establish that the alleged failure to refer to particular paragraphs of Preston CJ's judgment was not only an error of law, but one that was material to the ultimate decision: Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233; [2005] NSWLEC 470 at [34], Hurstville City Council v Goreski [2011] NSWLEC 188 (Goreski) at [53]-[56], Sydney Water Corporation v Caruso (2009) 170 LGERA 298; [2009] NSWCA 391 at [133]-[136], [91], and Warkworth Mining Pty Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [194]. That is, there must be a realistic possibility of the Commissioner having reached a different decision on the critical 'fit and proper person' test, had express consideration been given to the particular paragraphs of Crush and Haul (criminal): MZAPC at 592 (Kiefel CJ, Gageler, Keane and Gleeson JJ), Nathanson at [32] (Kiefel CJ, Keane and Gleeson JJ). The EPA cannot establish that standard has been met in relation to any of the limbs in this ground.

[29]

Ground 2(a)

The AC did consider the finding made by Preston CJ in Crush and Haul (criminal) that the Respondent committed an offence contrary to s 48 of the POEO Act recklessly. Preston CJ's finding in this regard is referred to in the reasons of the AC at [12], [70], [147], [178].
First, so far as the EPA's objection is predicated upon the AC expressing its reasons as a 'noting' of the matter, the reference at [12] is not so qualified. This paragraph appears in the context of [9]-[45] where the AC set out the relevant history of environmental non-compliance which formed part of the factual matrix which, having regard to Crush and Haul (class 1) as a whole, was plainly taken into account.
Second, the EPA has not demonstrated how the use of an expression of 'note' ('I note' at [70]; 'it is noted that…' at [178(1)]) is not reasonably a statement indicating that the matter was considered. Its plain English meaning is indicative that it was being taken into account.
Third, to the extent that the EPA may demonstrate that there is a linguistic or legal difference to use of expressions employed by the AC variously as 'I note' and 'it is noted', and an expression of taking into account a matter, this amounts to an impermissible fine-toothcomb approach: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 (Brimbella) at 368, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang) at 291, Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 (Carstens) at [76], Bonim Stanmore Pty Ltd v Marrickville Council (2007) 156 LGERA 12; [2007] NSWLEC 286 (Bonim) at [6]-[7], Village McEvoy at [28]-[31] and Goreski at [53]. It is plain, in the context of the reasons for decision as a whole and the multiple references to Preston CJ's findings of recklessness in Crush and Haul (criminal), that this matter was considered by the AC.

[30]

Ground 2(b)

The AC had regard at [17], [74], [149] to the rejection by Preston CJ in Crush and Haul (criminal) at [61]-[68] of sworn evidence of Mr Cauchi in the Class 5 proceedings. The AC extracted [62], [66] in which Preston CJ rejects the evidence as a relevant matter. Accordingly, Ground 2(b) must fail.
To the extent that there is a further complaint as to the weight given to other findings of Preston CJ (albeit raised in an assumed context of failure to consider matters which has not been made out), this does not advance a case of error of law.

[31]

Ground 2(c)

The EPA briefly raised the finding of Preston CJ of offending conduct contrary to legislative objectives of the POEO Act in its written submission before the AC (see par 37 above in [70]). A review of the transcript of the hearing does not otherwise indicate that Ground 2(c) was advanced by the EPA in oral address. The EPA now seeks to elevate a matter set out in a single sentence of its written submissions to an issue of central relevance in the case giving rise to an inference that the failure of the AC to refer to this matter must mean that it was not considered. Indeed the EPA's submissions now assert that this finding was of central relevance to matters in subss 83(2)(a)-(e) and (g) of the POEO Act, in circumstances where the single sentence reference before the AC was raised only in the context of s 83(2)(a).
This ground fails for the reason that it is abundantly clear that the substance of the relevant offence as found by Preston CJ, including all relevant surrounding circumstances, was considered in detail by the AC. There is no doubt that she was acutely aware of what Preston CJ had found. She was taken to each of the relevant paragraphs.
This specific issue (as distinct from the offence itself) was not a principal or central issue in the case as indicated by the single reference made by the EPA at first instance. Accordingly, there was no obligation upon the AC to address that specific finding made by Preston CJ in her reasons. It is not an available inference that an absence of a reference to that particular matter means that it was not considered.
The AC properly directed herself to the legally relevant matters to be considered in determining the application before her at [46]-[64] and was keenly aware of the requirement to consider the objects of the POEO Act. The objects were explicitly referred to at [64] and reference to Crush and Haul (criminal) at [16] was made. The paragraph immediately preceding [16] in Crush and Haul (criminal) contains the finding in issue that 'Nevertheless, once Crush and Haul exceeded the 30,000 tonnes threshold, its carrying on of the scheduled activity of the land-based extractive activity without holding an environment protection licence did undermine the regulatory scheme of the POEO Act.' Having expressly averted to [16] and otherwise made detailed reference to His Honour's findings, there is an irresistible inference that the matter was considered by the AC albeit expressed at a higher level of abstraction, in other words that 'the applicant's conviction for a breach of s 48(2) of the POEO Act is a matter which I have considered…' (at [69]).

[32]

Ground 2(d)

The submission underlying Ground 2(d) was not framed before the AC as it is now with specific reference to the Respondent and Mr Cauchi. It is entirely new and was not raised before the AC at first instance. It relates to an application made in 2018 for an EPL in the name of the lessee of the Land. It is indicative of an ex post facto dissatisfaction with the forensic decisions made as to the presentation of the EPA's case and ultimately the merits of the decision.
The ambit of the issues in contention is evident when regard is had to the Amended SOFAC in Reply. The Appellant's contention that the Respondent was not a fit and proper person raised two particulars. First, in respect of a consideration of s 83(2)(c) of the POEO Act (see par 15(b) above in [68] and the summary of Annexure A above in [69(1)]). Paragraph 15(b) was directed to the conduct of Mrs Louise Cauchi. It was in the context of Mrs Cauchi's conduct that the findings in Crush and Haul (criminal) at [23], [44] were drawn to the attention of the Respondent and the AC. The findings were referred to in respect of s 83(2)(f) in Annexure A of the Amended SOFAC in Reply (see above in [69(2)]) in which no allegation of misleading conduct was made against Mr Cauchi.
The EPA's premise that a sole reference by the AC (to the issue of the application which it had raised before the AC, as opposed to that which it now seeks to advance) at [121] is demonstrably incorrect. Consistent with the manner in which the EPA presented its case, the AC at [125] made further reference to the false information having been made at the instruction of Mrs Cauchi and that 'no evidence was provided that Mr Cauchi had authorised or actioned this conduct.' The issue was further identified by the AC at [154] and the subject of consideration at [155]-[157].
Moreover, to the extent that there is a complaint that the AC's focus was upon the conduct of Mrs Cauchi, again that complaint is without substance. That is because that was the only context in which it was addressed in the EPA's submissions. Moreover, it was not the subject of submissions before the AC. The EPA has not identified any reference in the transcript to the raising of the matter, nor does the EPA identify in its submissions on appeal where this was addressed before the AC. The issue before the AC related to the conduct of Mrs Cauchi as a former director. No issue was raised as to the Respondent more generally or Mr Cauchi.

[33]

Ground 2(e)

The EPA makes a bare assertion as to the great importance of a matter now forming a ground of appeal without identifying in its submissions how it was raised before the AC. This matter was entirely marginal to the issues to be determined by the AC and did not call for express reference in the AC's reasons.
That in the Class 5 proceedings the EPA may have only accepted an unlikelihood of reoffending based on the evidence given by Mr Cauchi that he had left the quarry business is beside the point. Preston CJ's findings are based upon three discrete matters namely (a) insight into offending, (b) genuine remorse, and (c) change of business.
While the EPA in its written submissions before the AC at par 60 above in [70] identified one of the grounds upon which Preston CJ found that Mr Cauchi was unlikely to reoffend, that matter was not of any significance. The matter was not otherwise advanced orally before the AC, other than by the Respondent in oral submissions, where [140] in Crush and Haul (criminal) was expressly drawn to the AC's attention (see above in [65]), including specifically referring to the matter now said not to have been properly addressed by her. To the extent the EPA makes a complaint as to resultant failures to give the findings of Preston CJ appropriate weight, this does not constitute an error of law.

[34]

No failure to consider criminal judgment

This appeal ground alleges in five particulars inadequacies submitted to be errors of law in how the AC considered Crush and Haul (criminal). This ground adopts an impermissible fine-toothcomb approach to the AC's judgment (see Brimbella and many subsequent cases) and fails to consider the extensive judgment fairly as a whole. Relevant parts of the judgment are extracted above where aspects of the decision in Crush and Haul (criminal) are referred to on multiple occasions by the AC in her judgment at [11]-[12], [16]-[20], [64], [68]‑[70], [73]-[76], [95], [105], [121]-[122], [127], [147], [149], [151], [155], [173], [175], [178]. The AC was clearly aware of the judgment and referred to it expressly in her reasoning on numerous occasions in the paragraphs identified above including specifically in relation to the Respondent company at [11]-[12] and in relation to the sole director Mr Luke Cauchi at [16]-[20]. No criticism is made of the parts of Crush and Haul (criminal) that are referred to. The criticisms are essentially that omissions occurred in failing to refer to particular paragraphs, or insufficient weight was given to parts of the judgment.
In the absence of a statute indicating how weight is to be attributed, attribution of weight to a relevant matter is not reviewable on appeal as an error of law: Peko-Wallsend per Mason J at 41. The AC's finding at [70], [76], [147], [151] to the effect that one conviction was not determinative of whether Mr Cauchi the sole director was of good repute is not reviewable in this appeal. That complaint is really about the merits of the AC's finding.
While it can be accepted that the principal contested issue was whether the Respondent was a fit and proper person that does not render every small detail of the EPA's case a matter which must be expressly considered by the AC. As identified in the principles set out in [24] above, the AC was not required to deal with every argument raised and every possibility referred to, Segal at [71] citing Comcare at [58].

[35]

Ground 2(a)

Ground 2(a) in the Amended Summons Commencing Appeal states: 2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely: a. the finding made by Preston CJ in Environment Protection Authority v Crush and Haul Pty Ltd [2022] NSWLEC 113 that Crush and Haul committed an offence contrary section 48 of the POEO Act recklessly; …
Ground 2(a) alleges that the AC failed to consider relevant material central to her task being findings in Crush and Haul (criminal) that the Respondent (the company) acted recklessly. The EPA raised five sub-particulars for how this error arose, set out in [74] above.
In relation to point 2, the first hurdle the EPA faces is that the AC referred expressly to the finding of the Respondent's recklessness in Crush and Haul criminal at [12] in her judgment, extracting paragraphs [81]-[82]. This does not suggest a failure to consider that finding. The parties referred to [12], [70], [178], [147] of the AC's judgment extracted above in [64]. The EPA's focus was on [12]. As already stated the judgment must be read as a whole and doing so suggests the AC did consider the finding of recklessness in relation to the Respondent in Crush and Haul (criminal).
In point 1 the AC is criticised as placing undue weight on findings in Crush and Haul (criminal) that Mr Cauchi had not acted recklessly and that his offending conduct was of low objective seriousness as was indeed found in Crush and Haul (criminal). The AC identifies both findings in her judgment. Attribution of weight in the statutory scheme in s 83(2) is a matter for the AC and this is really an impermissible complaint about the merits of her decision.
Point 3 is difficult to follow. It states that the AC failed to refer to other adverse findings made in Crush and Haul (criminal) about the Respondent's claimed knowledge, citing [78]-[81], [129]. Preston CJ rejected the Respondent's submission that it believed that it had not exceeded the 30,000 tonne threshold. Preston CJ found that the Respondent was aware that it exceeded the 30,000 tonnes threshold that would require obtaining an EPL (at [78]). Preston CJ found beyond reasonable doubt that the Respondent committed the offence against s 48(2) of the POEO Act recklessly. These findings were expressly considered by the AC in Crush and Haul (class 1).

[36]

Ground 2(b)

Ground 2(b) in the Amended Summons Commencing Appeal states: 2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely: … b. the rejection by Preston CJ of evidence given by the director of Crush and Haul, Luke Cauchi, in that proceeding. …
The rejection by Preston CJ of Mr Cauchi's sworn evidence was identified in the EPA's Amended SOFAC in Reply at par 22 extracted above in [68]. The EPA's counsel cross-examined Mr Cauchi on Preston CJ's rejection of his evidence as identified in the transcript extracted above in [65]. Mr Cauchi recalled that his evidence was not accepted regarding the threshold at which the Respondent could quarry. The Respondent's counsel mentioned Preston CJ's finding in closing submissions (see above in [65]). The EPA's counsel made submissions about Preston CJ's finding in relation to whether Mr Cauchi acted recklessly.
The AC's judgment at [17], [74] refers expressly to the finding of Preston CJ rejecting Mr Cauchi's evidence and at [149] expressly referring to the judgment finding as part of weighing up Mr Cauchi's evidence in the Class 1 appeal.
The AC was not required to consider every argument raised (Comcare at [58]) or a submission made in a way that did not call for reasoned consideration, see above in [9]-[10]. The finding was expressly referred to as part of the AC's reasoning process. Finely tuned criticism of the term 'noting' at [149] of Crush and Haul (class 1) is not permissible in this appeal. The EPA has not established that the AC failed to consider relevant material in her judgment.

[37]

Ground 2(c)

Ground 2(c) in the Amended Summons Commencing Appeal states: 2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely: … c. the finding by Preston CJ that the offending conduct "was contrary to the legislative objective expressed in the offence under s 48(2) of the POEO Act, impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme": …
No reference in the AC's judgment is made to Crush and Haul (criminal) at [117]-[118] that the Respondent's offending conduct impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme. Ground 2(c) alleges this constitutes a failure to consider relevant material central to the issue to be determined. The Respondent submitted the AC does refer to the objects of the POEO Act at [64] of Crush and Haul (class 1).
Before the AC the EPA identified [16]-[17] of Crush and Haul (criminal) in pars 21 and 22 of its Amended SOFAC in Reply extracted above in [68] and par 37 of its written submissions before the AC above in [70]. Paragraph 37 of the EPA's written submissions before the AC referred to this finding in the context of s 83(2)(a).
As the Respondent identified, the EPA submits in this appeal this finding is relevant to additional subss 83(2)(b)-(e) and (g). To the extent in this appeal the EPA relies on more subss of s 83(2) in order to underline the importance of the finding, that is impermissible recasting of the EPA's case.
I agree with the Respondent that the EPA has not demonstrated that this specific particular was a principal or central issue in the case presented to the AC.
Adequacy of reasons does not require that every argument made by a party must be referred to: Comcare at [58] cited in Segal at [71].
I accept the Respondent's submissions above in [96] that in reading the judgment as a whole the AC was well aware of Crush and Haul (criminal) and considered it in detail as part of her reasoning. I do not consider an error of law has been established. If it had the EPA has not demonstrated how that could be material in light of the case presented by the EPA to the AC. The EPA is unsuccessful on Ground 2(c).

[38]

Ground 2(d)

Ground 2(d) in the Amended Summons Commencing Appeal states: 2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely: … d. the finding by Preston CJ that Crush and Haul (with Mr Luke Cauchi's knowledge) had, in connection with a previous application for an EPL, taken steps to conceal and avoid the regulator becoming aware of its involvement at the quarry; and ...
Ground 2(d) alleges the AC failed to consider the finding that the Respondent, said to be with Mr Cauchi's knowledge, concealed information in a previous application for an EPL. It is necessary to consider if this precise issue as expressed on appeal was presented to the AC by the EPA in order to consider this ground.
The matter of the misleading application was addressed in the EPA's Amended SOFAC in Reply at par 15(b) extracted above in [68], Annexure A of the Amended SOFAC in Reply above in [69], and the EPA's written submissions at par 43(d) extracted above in [70] to the effect that instructions were given by Mrs Cauchi to conceal information. No reference was made by the EPA to the conduct of Mr Cauchi in this context.
Before the AC the Respondent's counsel briefly addressed the 2018 application for an EPL extracted in the transcript above in [65] stating 'This is not a breach of any environmental protection legislation and frankly, hardly a serious matter. It's not the basis of any particular finding and in any event, it was [the] conduct of Louise Cauchi, [it] had nothing to do with Mr Cauchi.' That a misleading application for an EPL was engineered by Mrs Cauchi (Mr Cauchi's mother) on behalf of the Respondent in 2018 identified in Crush and Haul (criminal) at [23], [44] is expressly identified in Crush and Haul (class 1) at [121]-[122], extracted above in [64]. The AC's judgment at [121(4)] refers to the EPA's Amended SOFAC in Reply referring to Mrs Cauchi giving someone instructions to provide misleading information. At [125] in Crush and Haul (class 1) the AC stated 'no evidence was provided that Mr Luke Cauchi had authorised or actioned this conduct' in relation to the licence application. The AC also identified at [154] the misleading application in the context of determining whether Mrs Cauchi was of good repute, which the AC ultimately considered she did not need to resolve for reasons given at [155]-[157] of Crush and Haul (class 1). That is the 'lens' for the AC's consideration of the misleading application and also my consideration in this appeal.

[39]

Ground 2(e)

Ground 2(e) in the Amended Summons Commencing Appeal states: 2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely: … e. the change in circumstances of Crush and Haul since the decision of Preston CJ, namely the reappointment of Mr Luke Cauchi as the sole director of Crush and Haul in circumstances where Preston CJ had placed weight on Mr Cauchi's prior resignation from that position.
Ground 2(e) alleges a failure to refer to the re-offending finding of Preston CJ in Crush and Haul (criminal) at [139]-[140] given Mr Cauchi's reappointment as sole director of the Respondent since that decision.
Crush and Haul (criminal) at [103], [139]-[140] stated: Crush and Haul's sentence … Likelihood of reoffending … [103] The EPA accepted that Mr Cauchi was unlikely to reoffend, as he has resigned as a director of Crush and Haul and now operates a new business in the civil and transport industry. However, the EPA submitted that this does not mean that Crush and Haul is unlikely to reoffend. Mr Cauchi has been replaced by Mrs Cauchi as the sole director of Crush and Haul. Mrs Cauchi has a record of prior convictions. Companies of which Mrs Cauchi has been a director have been convicted for offences against s 48(2) of the POEO Act and Mrs Cauchi has also been convicted as a director of those companies which committed executive liability offences. These involve convictions for offences under the POEO Act in relation to exceedances of the extraction limit under an environment protection licence at Corindi Quarry (Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78) and a conviction for breach of s 48(2) of the POEO Act by another company at a different quarry (Environment Protection Authority v Rixa Quarries (No 2) Pty Ltd (No 2) [2017] NSWLEC 93). Mr Cauchi's sentence … Likelihood of reoffending [139] Mr Cauchi resigned as a director of Crush and Haul in February 2022 and now runs a different business in the civil and transport industry in the Sydney region. The EPA accepted that Mr Cauchi is unlikely to reoffend. [140] In circumstances where Mr Cauchi has insight into his offending in this case, is genuinely remorseful for offending and has changed his business, I find that he is unlikely to reoffend. …

[40]

Ground 3: failure to give proper weight to the findings of Crush and Haul (criminal)

The Amended Summons Commencing Appeal identified the following appeal ground: 3. The weight given by the Acting Commissioner to Preston CJ having convicted Crush and Haul and Luke Cauchi of offence contrary to section 48 of the POEO Act, and to the reasons given by Preston CJ in that decision, was so inadequate as to the result in a legally unreasonable decision (at [67]-[78]).
The EPA submitted that Ground 3 alleges legal unreasonableness that includes failure to consider claims and material, making of illogical/ irrational findings and failure to give adequate weight to relevant factors of significance. This appears to overlap with Ground 2.

[41]

EPA's submissions

It is also apparent that the AC minimised the significance of the earlier convictions and their relevance to the question of fitness and propriety at [70], [76], [147], [151] and placed undue weight on the absence of further convictions and the effluxion of time at [77], [127]-[128], [130]-[131], [178]. For example, on two occasions at [70], [147], the AC 'note[d]' that the Respondent had been found to be a reckless offender, but then downplayed its significance by observing that it was only one conviction which did not result in actual environmental damage and that it would not, itself, lead to the conclusion that the Respondent was not a fit and proper person to hold an EPL. The error in the AC's approach was to place so little weight on the convictions of the Respondent and Mr Cauchi so as to result in a legally unreasonable decision. That error was compounded by the errors in Grounds 1, 2 and 4 and the unfounded weight placed on Mr Cauchi's testimony at [77], [103]-[109], [149]-[150].
The convictions and conduct considered by Preston CJ represented the most recent and serious conduct of both the Respondent and Mr Cauchi, being conduct contrary to the very Act under which the Respondent had made its application for an EPL. The convictions furthermore concerned conduct directly relevant to the type of application before the AC, that is, they arose from contraventions of the EPL regime, in circumstances where the Respondent had sought to conceal from the EPA the fact of its involvement at the quarry. The fact that the Respondent and its then (and now current) sole director had previously been found to contravene the POEO Act, to have done so recklessly (in the case of the company), and to have taken steps to conceal their involvement in connection with a prior application for an EPL, ought to have been given substantial weight. The AC's failure to do so was legally unreasonable.
It has long been held that, where, as here, there has been a failure by a decision-maker to give adequate weight to relevant factors of great importance (such as the judgment of Preston CJ), a decision may be set aside on the basis that it is unreasonable (being an error of law): Peko-Wallsend at 30, 41, 71, Li at [72]. That such an error was made here is apparent from the reasons of the AC, in the context of the submissions and material placed before her, and does not require devolving into a review of the decision on its merits. The fact that s 83 of the POEO Act does not itself dictate how the various factors are to be weighed does not prevent a finding that there has, in the circumstances, been a legally unreasonable decision.

[42]

Respondent's submissions

A complaint about the weight afforded to permissible considerations does not amount to an error of law: Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7 at [133] citing Peko-Wallsend at 40-41 (Mason J) and Attorney General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [120]-[122], Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [173]. Even in the judicial review context, a court 'should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits': Peko-Wallsend at 42 (Mason J).
The matters set out in s 83 are discretionary with no stipulation as to the weight of any such discretionary matter, with the exception of s 83(4) which permits certain matters to be disregarded. Accordingly, the weight to be given to other findings of Preston CJ (which the EPA complains were given undue weight) was a matter for the AC. Those matters were permissible relevant matters for the AC to take into consideration in the exercise of her discretion in determining whether to grant an EPL.
Put simply, the weight to be afforded to the various considerations was a matter for the AC alone to determine, and no error (let alone error of law) has been demonstrated in the careful and considered fashion she dealt with the earlier findings made by Preston CJ.
The EPA otherwise seeks to refer to a limited set of other evidence which it says was given undue weight (i.e. the absence of further convictions and the effluxion of time) to suggest that there was legal unreasonableness. Notably, the EPA fails to refer to a suite of evidence in the affidavits of Mr Cauchi which were before the AC as to conduct and relevant matters after the decision of Preston CJ. In particular it is evident that the AC considered the matters set out in the following paragraphs as highly relevant: [77], [94]-[113], [144], [149].
To the extent that the EPA's submission above in [154] relies upon an allegation that the Respondent has sought to conceal from the EPA the fact of its involvement at the quarry in support of Ground 3 and the suggestion of a legally unreasonable decision, that matter would be disregarded for the reasons given above in respect of Ground 2(d).

[43]

No failure to attribute proper weight

Section 83 of the POEO Act identifies matters which may be considered in determining whether a person is fit and proper. As agreed by the parties no 'hierarchy' for the consideration of these matters is specified in that section. In other words the matter of weight to be attributed to them lies with the AC under the statutory scheme in the POEO Act. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: Hoy at [8] citing Peko-Wallsend at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]‑[12].
The EPA's submissions are a complaint about the merits of the AC's consideration of s 83 factors, for example 'ought to have been given substantial weight' is an impermissible submission about the merits of the AC's finding. I agree with the Respondent that Crush and Haul (class 1) shows a careful and balanced consideration of matters.
As already considered above in [117], an impermissible fine-toothcomb approach is evident in the EPA's focus on the AC's use of the word 'noted' on two occasions.
The AC's judgment must be read fairly as a whole. As already considered exhaustively in Ground 2 the AC's consideration of Crush and Haul (criminal) was substantial and there is express reference to it in numerous paragraphs demonstrating extensive consideration of it.
Even if authorities such as Peko-Wallsend and Li could apply, nothing in the AC's judgment suggests this aspect of these authorities is called up here. No matter of 'great importance' has been identified by the EPA.
The EPA is unsuccessful on Ground 3.

[44]

Ground 1: failure to apply correct statutory test

Ground 1 raises the question whether the AC applied the correct legal test established by s 45(f) and s 83(2) of the POEO Act to determine if the Respondent is a fit and proper person.
The Amended Summons Commencing Appeal identified the following appeal ground: 1. In deciding whether the respondent (Crush and Haul) is "a fit and proper person" within the meaning of section 45(f) of the Protection of the Environment Operations Act 1991 (NSW) (POEO Act), the Acting Commissioner did not apply the correct test, in that, instead of asking whether she was satisfied that Crush and Haul is a fit and proper person to hold an environment protection licence (EPL), she asked herself whether certain of the matters on which the appellant relied meant that Crush and Haul is not a fit and proper person (at [76], [123], [128], [131], [145]-[147], [151]-[153]).
The EPA submits that the AC incorrectly inverted the test by not using positive language in considering Mr Cauchi's character. The parties agreed that the AC correctly accepted that she was required to reach a state of actual satisfaction that the Respondent was a fit and proper person at [64] in order to be satisfied that it should be granted an EPL.
Some of the numerous paragraphs of the judgment referred to by the parties have been extracted and marked to identify where it is said that the legal test has been framed positively and negatively according to the parties: 1. Introduction [POSITIVE] [7] The parties agreed that the sole matter in dispute in this case was whether the applicant is a "fit and proper person" under s 45(f) of the POEO Act to hold the Licence applied for. … 4. Statutory Framework … [POSITIVE] [49] A critical issue in this matter is whether the applicant is a "fit and proper person" for the purpose of s 45(f) of the POEO Act. The "Note" to s 45(f) relevantly states "see section 83 for provisions relating to the determination of whether a person is a fit and proper person for the purposes of this section". Section 83 of the POEO Act provides: … 5. Consideration of meaning and scope of term "fit and proper person" under the Protection of the Environment Operation Act … [POSITIVE] [63] In relation to the respondent's argument that I must reach a state of actual persuasion and satisfaction that the applicant is a fit and proper person in accordance with the principles set out in Makasa, I note that Makasa was considering a different legislative regime with different language to that in s 45 of the POEO Act. I agree with the applicant's submission that the statutory regime being considered in Makasa imposed an onus to satisfy the Minister of the character test whereas s 45 of the POEO Act requires consideration of various factors as are of relevance (which includes whether the applicant is a fit and proper person). [POSITIVE] [64] However, the objects of the POEO Act include (at s 3(a)), "to protect, restore and enhance the quality of the environment". The licensing regime set out in Chapter 3 of the POEO Act seeks to regulate scheduled activities which "are by their nature activities that are either inherently or when conducted in a certain manner or extent likely to cause harm to the environment" (EPA v C&H; EPA v Cauchi at [16]). I therefore agree with the respondent's submission that in order to grant a Licence to the applicant in this matter, I must be satisfied that the applicant is a "fit and proper person" for the purposes of s 45(f) of the POEO Act. 6. Consideration of whether the applicant is a "fit and proper person" under the Protection of the Environment Operations Act … Section 83(2)(a) "That the person has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation" … [POSITIVE] [69] The applicant's conviction for a breach of s 48(2) of the POEO Act is a matter which I have considered in determining whether the applicant is a fit and proper person to be granted the Licence sought in this matter. [NEGATIVE] [70] I note that the applicant's conviction under s 48(2) of the POEO Act was not trivial and was found by Preston CJ to have been carried out recklessly. However, I do not consider that one conviction, which did not result in environmental harm and which was found to be of low to medium objective seriousness, is determinative, on its own, that a person is not a "fit and proper" person to hold a Licence under the POEO Act. … 7. Decision regarding whether the applicant is a "fit and proper person" [POSITIVE] [177] Having regard to the above consideration, I find that the applicant is a "fit and proper person" pursuant to ss 45(f) and 83 of the POEO Act in respect of the Licence sought to be obtained in this matter. [178] My reasons for this determination are as set out above, but can be generally summarised as follows: (1) the applicant has only one prior conviction under s 48(2) of the POEO Act where no environmental harm was caused and was deemed to be of low to medium objective seriousness (although it is noted that the offence was found by Preston CJ to have been carried out recklessly); (2) the current sole director, Mr Luke Cauchi, has only one prior conviction, being an executive liability offence under s 169A(2) of the POEO Act connected to the offence for which the applicant was convicted as set out above. This offence was found by Preston CJ to not have been carried out recklessly and to be of low objective seriousness. His Honour similarly found the offence to have caused no environmental harm; (3) I find Mr Luke Cauchi to be honest and genuine in his remorse for his and the applicant's 2022 convictions; (4) I have placed material weight on Mr Luke Cauchi's evidence that he will have "sole control" of the applicant going forward, is aware of his obligations in the role of director, and wishes to move forward with a law abiding company; (5) the former director, Mrs Louise Cauchi has a more concerning compliance history, however, is no longer a director of the applicant and there was no cogent evidence provided which refuted Mr Luke Cauchi's affidavit evidence and testimony that he will be in control of the applicant and its activities going forward; [NEGATIVE] (6) the respondent did not contend in the hearing that the activities sought to be licensed will not be managed and in the hands of a technically competent person. In the absence of any cogent evidence to the contrary, I have accepted that the activities sought to be licensed will be managed and in the hands of a technically competent and able person; [NEGATIVE] (7) the respondent did not contend in the hearing that the applicant does not have the financial capacity to comply with the obligations proposed to be imposed under the licence. In the absence of any evidence to the contrary, I have accepted that the applicant has the financial capacity to comply with the obligations proposed to be imposed under the licence; and (8) the applicant's outstanding costs owed to the respondent are of little weight as the: (a) 2016 costs were disputed by the applicant and not ultimately pursued by the respondent (on evidence before the Court); and (b) outstanding costs from the EPA v Crush and Haul; EPA v Cauchi litigation is only six months old and there was undisputed evidence before the Court from Mr Luke Cauchi that these costs will be paid in the near future. 8. Other matters for consideration under s 45 of Protection of the Environment Operations Act [POSITIVE] [179] On the basis that I have determined that the applicant is a "fit and proper person" for the purposes of s 45(f) of the POEO Act, it is necessary to consider the other relevant matters for consideration set out in s 45. As set out previously, in exercising its functions under the POEO Act, the appropriate regulatory authority (or in this case, the Court) is required to take into consideration such of the matters set out in s 45 as are of relevance. … Relevant objects of the Protection of the Environment Operations Act … [POSITIVE] [200] On the basis that I have determined that the applicant is a fit and proper person under s 45(f) of the POEO Act, and all other matters listed for consideration as are of relevance under s 45 of the POEO Act are not disputed by the parties, I do not consider the granting of the Licence to be contrary to any of the stated objectives in s 3 or inconsistent with any of the matters for consideration that are of relevance under s 45 of the POEO Act. …

[45]

EPA's submissions

The EPA submitted that contrary to the test accepted by the AC at [64], the AC then approached her statutory task on the basis that, subject only to the EPA establishing to the contrary, she could assume (and therefore find) that the Respondent was a fit and proper person as illustrated at [147], [153] (see above in [170]). She did not require positive evidence to establish that fact. The AC concluded at [147] that the Respondent is a person of good repute because the conviction and penalty notices did not render the Respondent not being of good repute. No reference or finding was made as to other evidence demonstrating that the Respondent was, in fact, of good repute. Such an approach not only placed a burden of proof on the EPA but also inverted the statutory question posed by the POEO Act.
The same approach is evident in the AC's reasoning at [70], [76], [123][124], [128], [131]. This deficiency and inversion in reasoning is not cured by the fact that the AC elsewhere correctly expressed the statutory test at [64], [177], [179], [200] (see above in [170]). The 'summary' of findings as set out at [178] confirm that the AC (wrongly) focused on whether the EPA had negatived the assumption that the Respondent was a fit and proper person, rather than whether the Respondent had positively satisfied the AC that it was fit and proper (see above in [170]). This failure to apply the correct statutory test is a further error of law in the decision.
In reply submissions, the EPA pointed out the Respondent conceded the AC referred to the statutory test in negative terms. The AC was expressly cautioned against such an approach in the submission before her (see above in [172]). Contrary to the Respondent's submission that the EPA has selected examples of the statutory test in negative terms, the EPA has identified passages in the dispositive reasoning applied before the AC excluding [177] (see above in [170]). At [177] the test is expressed in terms of a positive state of satisfaction. However, it is infected by the AC's earlier, erroneous findings.

[46]

Respondent's submissions

The Respondent rejected the assertion that the AC misapplied the statutory test, to the effect that notwithstanding the proper identification of the statutory task the AC proceeded to disregard that task. When regard is had to the reasons for decision as a whole it is evident that the AC understood that she was required to reach a positive state of satisfaction that the Respondent is a fit and proper person.
The Respondent's position is that to the extent the AC referred to the test in a negative way, the examples relied upon by the EPA are not demonstrative of an incorrect legal test, but rather are just a selective trawling through the reasons of the AC with an eye focused upon asserting an error, and without regard to the context of the decision as a whole. That is an impermissible approach: Brimbella at 368, Wu Shan Liang at 291, Carstens at [76], Bonim at [6]-[7], Village McEvoy at [28]-[31] and Goreski at [53].
The test was identified in its positive form at [7], [49], [63], [64], [69], [71], [85], [103], [112], [176], [177], [179], [200]. Accordingly, this ground fails.
It is an overreach to suggest that two of the eight matters summarised at [178] is indicative of the AC being focused upon the wrong test. To the extent that the EPA submitted the AC was wrong at [178] to refer to the EPA having not contended at the hearing that the activities sought to be licensed would be managed by a technically competent person and that the Respondent did not contend that it had financial capacity, those matters should be understood in the context that they were initially raised and then expressly abandoned by the EPA above in [173]-[174].

[47]

No failure to apply correct statutory test

The parties agree the correct legal test was identified by the AC at [64], and elsewhere. Some of the paragraphs of the judgment referred to by the parties are extracted above to provide context for the parties' submissions. The extract of the transcript in which the EPA's counsel identified concern that the Respondent's (then the Applicant) submissions incorrectly identified the test is also extracted above in [172]. This transcript demonstrates that the AC was alerted to this issue.
'Negative' language according to the EPA appears at [70], [76], [123]-[124], [128], [131], [147], [151]-[153], [178] meaning paragraphs where the AC appeared to place an onus on the EPA to demonstrate a matter to apply to the consideration of s 83 rather than an onus falling on the Applicant to demonstrate a matter. I note that the language in [153] is in fact expressed positively. The EPA submitted these showed examples of dispositive reasoning. 'Positive' language appears at [7], [49], [63], [64], [69], [71], [85], [103], [112], [176], [177], [179], [200]. The AC's conclusive paragraph at [177] is expressed in positive language. While two sub-paragraphs of [178] are criticised as containing negative language, the other six subsections are not criticised.
The judgment must be read fairly and as a whole and in light of the case presented to the AC. When all of the paragraphs relied on by the parties are considered in this light, no error is demonstrated. I agree with and adopt the Respondent's submissions above in [177] referring to Brimbella, Wu Shan Liang, Carstens, Bonim, Village McEvoy and Goreski.
The Respondent's submissions in [179] above concerning the unwarranted criticism of [178] of the AC's judgment are accepted given the context identified. The summary paragraph in [178] of the judgment clearly show that the AC was aware of her task.
The EPA is unsuccessful on Ground 1.
As the EPA is unsuccessful on all grounds the s 56A appeal will be dismissed.

[48]

Costs

The usual approach in s 56A appeals under the LEC Act is that costs follow the event. The EPA has been unsuccessful and it should pay the costs of the Respondent.

[49]

Orders

The Court orders: 1. Appeal no. 2023/260897 is dismissed. 2. The Appellant is to pay the Respondent's costs of the appeal as agreed or assessed.

[50]

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: 12 March 2024

[51]

Woodhouse v Comcare (2021) 285 FCR 14; [2021] FCAFC 95

[52]

[2023] NSWLEC 1367

[53]

Protection of the Environment Operations Act 1977 (NSW)

[54]

Grounds of s 56A appeal

[55]

Principles applied in s 56A appeal

[56]

Ground 4: failure to consider relevant matter

[57]

Extract of AC's Judgment

[58]

Exhibit 5 in Class 1 proceedings - Letters between EPA and Respondent dated June and August 2017

[59]

Email dated 16 June 2023 enclosing letters between EPA and Respondent

[60]

EPA's submissions

[61]

Respondent's submissions

[62]

No failure to consider relevant matter

[63]

Ground 2: failure to consider the findings in Crush and Haul (criminal)

[64]

Extracts of AC's judgment relevant to Grounds 2 and 3

[65]

Respondent's Amended Statement of Facts and Contentions before the AC

[66]

EPA's Amended Statement of Facts and Contentions in Reply before the AC

[67]

EPA's written submissions before the AC

[68]

EPA's submissions

[69]

Respondent's submissions

[70]

No failure to consider criminal judgment

[71]

Ground 3: failure to give proper weight to the findings of Crush and Haul (criminal)

[72]

EPA's submissions

[73]

Respondent's submissions

[74]

No failure to attribute proper weight

[75]

Ground 1: failure to apply correct statutory test

[76]

EPA's submissions

[77]

Respondent's submissions

[78]

No failure to apply correct statutory test

[79]

The Environment Protection Authority (EPA) appeals pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) a decision of an acting commissioner (AC) in Class 1 proceedings Crush and Haul Pty Ltd v Environment Protection Authority [2023] NSWLEC 1367 (Crush and Haul (class 1)).
The Respondent Crush and Haul Pty Ltd has the benefit of a development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for 'extractive industry (quarry extension)' at a quarry known as Corindi Quarry (the Land). The activities permitted on the Land by the development consent include 'scheduled activities' listed in Sch 1 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), namely 'crushing, grinding or separating' and 'extractive activities' under cll 16 and 19 respectively. To carry out scheduled activities a person requires an environment protection licence (EPL) pursuant to s 48. The Respondent submitted an EPL application to the EPA which did not determine the application.
The Respondent successfully appealed the deemed refusal by the EPA in Crush and Haul (class 1). The AC found that the Respondent was a fit and proper person for the purpose of holding an EPL. The AC granted the Respondent an EPL to carry out scheduled activities at the Land as provided by s 55 of the POEO Act.
The EPA alleges the AC made numerous errors of law in Crush and Haul (class 1) in this appeal. The EPA bears the onus of proof of establishing the errors it alleges.

[80]

Protection of the Environment Operations Act 1977 (NSW)

[81]

Chapter 3 Environment protection licences

Part 3.1 Introduction

...

45 Matters to be taken into consideration in licensing functions

In exercising its functions under this Chapter, the appropriate regulatory authority is required to take into consideration such of the following matters as are of relevance -

...

(f) whether the person concerned is a fit and proper person,

...

Part 3.3 Issue, transfer and variation of licences

...

55 Grant or refusal of application

(1) The appropriate regulatory authority may -

[82]

(a) in relation to an application for the issue of a licence -

[83]

(i) grant the application by issuing the licence, or

(ii) refuse the application, and

[84]

...

Part 3.8 Miscellaneous

83 Fit and proper persons

(1) This section has effect in determining whether a person is a fit and proper person as referred to in section 45 (f) and section 79 (5) (f), but does not limit the generality of those sections.

(2) The appropriate regulatory authority may take into consideration any or all of the following -

[85]

(a) that the person has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation,

(b) that, if the person is a corporation, a current or former director of the corporation or of a related body corporate -

[86]

(i) has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation, or

(ii) is or has been the director of another body corporate that has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation,

[87]

(c) the person's record of compliance with the environment protection legislation,

(d) if the person is a corporation, the record of compliance with the environment protection legislation of any current or former director of the corporation or of a related body corporate,

(e) whether, in the opinion of the appropriate regulatory authority, the management of the activities or works that are or are to be authorised, required or regulated under the relevant licence are not or will not be in the hands of a technically competent person,

(f) whether, in the opinion of the appropriate regulatory authority, the person is of good repute, having regard to character, honesty and integrity,

(g) if the person is a corporation, whether, in the opinion of the appropriate regulatory authority, a current or former director of the corporation or of a related body corporate is of good repute, having regard to character, honesty and integrity,

...

[88]

(3) A reference in subsection (2) to a director of a body corporate extends to a person involved in the management of the affairs of the body corporate.

(4) Without limiting the generality of the above, the appropriate regulatory authority may disregard contraventions referred to in subsection (2) having regard to the seriousness of the contraventions, the length of time since they occurred, and other matters that appear relevant to the appropriate regulatory authority.

...

Chapter 9 Miscellaneous

...

Part 9.2 Appeals

287 Appeals regarding licence applications and licences

(1) The following persons aggrieved by a decision of the appropriate regulatory authority about a licence or licence application may, within the prescribed period, appeal the decision to the Land and Environment Court -

[89]

(a) for a licence - a person who has held the licence,

(b) for a licence application - the applicant.

[90]

...

(2) An appeal under this section extends to a decision to refuse the licence application, to impose conditions on the issue of a licence, to vary the conditions of a licence, to revoke or suspend a licence, to refuse to approve the surrender of a licence, to impose conditions on a revocation, suspension or surrender of a licence or to attach any new conditions to, or to vary any conditions of, a suspension, revocation or surrender of a licence.

...

(3) For the purposes of this section, a licence application is taken to have been refused -

[91]

...

(c) in any other case, if the application is not granted within 60 days after it is duly made.

[92]

The appeal grounds in the Amended Summons Commencing Appeal are extracted where relevant in the judgment. The issues raised in this appeal according to the EPA are as follows:

[93]

(1) Whether the AC failed to apply the correct statutory test as required by ss 45(f) and 83 of the POEO Act (Ground 1);

(2) Whether the AC failed to consider certain findings made by Preston CJ, who convicted the Respondent of an offence contrary to s 48 of the POEO Act and the sole director of the Respondent of an executive liability offence for that same conduct (Ground 2);

(3) Whether the degree of weight placed by the AC on the convictions of the Respondent and its sole director was so minimal as to sound in a legally unreasonable decision (Ground 3); and

(4) Whether the AC's ruling (at [108]) that the evidence of the Respondent's sole director's claims of misconduct on the part of the EPA was not relevant to the statutory task under ss 45 and 83 of the POEO Act, and the attendant failure to have regard to the relevant material, resulted in a legally unreasonable decision (Ground 4).

[94]

The grounds are dealt with in the judgment in the order presented by the EPA in the s 56A appeal hearing (4, 2, 3, 1).
The EPA tendered a two-volume Appeal Book (Ex A) containing copies of the Summons Commencing Appeal, Crush and Haul (class 1), transcript of the Class 1 hearing, Exs A-H, J and Exs 1, 3, 4, 5 before the AC, the EPA's written submissions before the AC and letters from the Respondent and the EPA dated 29 July 2016 and 19 August 2016 respectively.

[95]

I outlined the principles relevant to determining a s 56A appeal in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 (Hoy) at [7]-[11]:

[96]

[7] It is important to state at the outset the principles which apply in appeals under s 56A of the Court Act in matters of this kind. Principles which have been well recognised as applying to s 56A appeals are correctly stated in the Council's submissions and these were drawn on and further developed in this and the following paragraphs. An appeal must identify a question of law explicitly or implicitly decided at first instance: Warkworth Mining Ltd v Bulga Mulbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [4]. That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA. The merits of a commissioner's decision cannot be the subject of a s 56A appeal.

[8] An appeal under s 56A is "on a question of law" not limited, however, to "an error of law": ISPT Pty Ltd v Valuer General [2009] NSWCA 31 (2009) 165 LGERA 25 at per Allsop P. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: ; at 41, ; at , at - .

[97]

I also adopt the following principles relevant to the determination of such appeals as conveniently summarised by Pepper J in Tanious v Georges River Council [2016] NSWLEC 142 (Tanious) at [10] as follows:

[98]

[10] ...A "verbal slip or infelicity of expression does not necessarily warrant drawing an inference of an error of law" (Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63 at [57]);

...

fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386 and Davis v Gosford City Council [2013] NSWLEC 49 at [75]. A party is bound by the way it conducted its case at the hearing: Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [47]-[55] and Davis at [75]-[77].

[99]

Ground 4 is extracted from the Amended Summons Commencing Appeal as follows:

[100]

4. In finding that evidence given by Luke Cauchi in cross-examination that an officer of the EPA had planted asbestos at a property at Badgerys Creek and attempted to frame him with that asbestos was "not... relevant as to whether [Crush and Haul] is a fit and proper person to hold the Licence applied for concerning Corindi Quarry" (at [108]), the Assistant Commissioner:

[101]

a. failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL (including because they pertained to the honesty and integrity of Luke Cauchi); and/or

b. acted irrationally, illogically and/or unreasonably.

[102]

The AC addressed the allegation the subject of Ground 4 in Crush and Haul (class 1) at [108] extracted below:

[103]

[108] For completeness I note that I make no findings in relation to Mr Luke Cauchi's claims of improper conduct by the EPA in 2016 in relation to a property at Badgerys Creek as there was no evidence of these allegations presented to me by either party (other than one letter from the applicant to the respondent dated 16 June 2017 (Ex 5) and Mr Cauchi's assertions during the hearing) and I do not consider them to be relevant as to whether the applicant is a fit and proper person to hold the Licence applied for concerning Corindi Quarry.

[104]

The parties referred to sections from the transcript of the Class 1 hearing on 13 June 2023 extracted below:

[105]

...

[18(24-34)]

[Beasley, Counsel for EPA] Q. It can cause mesothelioma. Did you have an asbestos management plan for this site?

[Mr Cauchi, Director of Respondent] A. Well did I? No, because we weren't dealing with asbestos. You guys tested every pile in the quarry and one of your people were caught planting asbestos in one of the piles. Youse then withdrew the accusation that there was biscuits in the piles because every pile that was there that was labelled by a Crush and Haul stockpile sight, except for the one or the two that were responsible of Michael Vickery of which you pursued him years after me. Youse fined and followed him up for that because I didn't remove that pile, I removed every other pile from that site except for the asbestos piles because the asbestos piles weren't discovered to have asbestos in them until you guys come and took tests of that material.

...

[20(38)-21(18)]

COMMISSIONER

Q. I think it is relevant to understand when you said you didn't think it was a reasonable price--

A. Sorry, Commissioner, if I could add. So I take you back to 2016. I've got a yard that we're trying to get going and it gets closed down. This gets performed, this gets performed and then Melissa plants a piece of asbestos into my pile--

BEASLEY: I object to this.

Q. Just a second, Mr Cauchi, just a second.

BEASLEY: I object to this. This is not an answer to the question. Mr Cauchi has been served - Crush and Haul, courtesy of Mr Cauchi as its sole director, has been served with a notice requiring payment of these expenses. The witness has already told us he hasn't paid and his answer as to why it wasn't paid was that he didn't think it was reasonable.

WITNESS: Because the - sorry, if I'm allowed to talk, can I know when I'm allowed to talk, mate? Because you're actually cutting in.

BEASLEY

Q. Go on, I'll actually let you go.

A. So basically, you guys, you guys are the one that backed out and never pursued, I didn't pay because youse were in the - youse were the ones that were trying to frame me with the asbestos. I did remove all the material because it wasn't supposed to be there, I did get it removed. It wasn't removed by your date, okay? Paid the fine and then the clean-up notice. Well I cleaned the place up.

[106]

Sections from the transcript of the Class 1 hearing on 14 June 2023 referred to by the parties are extracted below:

[107]

[1(47)-3(31)]

LAZARUS: ... A call was made yesterday relating to correspondence concerning the asbestos issue. There are some documents that have been provided to the EPA in answer to that call. We are still in the process of reviewing our IT systems to see whether there are any additional documents. It is like that, as a result of that process, I may wish to tender some further material but, that said, I'm not in a position formally, as it were, to close my case until that process is complete.

COMMISSIONER: Mr Beasley, do you press these documents?

BEASLEY: Just so you know, yes, the EPA-

COMMISSIONER: You said that they're relevant?

BEASLEY: Sorry, I didn't catch you.

COMMISSIONER: I just want to understand that the EPA is arguing that these documents are relevant to the application at hand.

BEASLEY: No because I don't know. I called for a specific document, if there was such a document, which-

COMMISSIONER: And you provided me with a letter, yes.

BEASLEY: --had an allegation of planting of evidence. I think I tendered some letters yesterday but there's been further searching by the EPA of its files and there's nothing along the lines that the EPA can find on that issue, nothing further involving Ms Ward or matters relating to the alleged planting of asbestos. So there's nothing further the EPA can produce or tender either.

COMMISSIONER: I'm just trying to understand what document that could be produced, how they would be relevant to the consideration of this application. I want to understand from you why you think the documents that could be provided - I know you're saying you don't know what they might be - would be relevant.

BEASLEY: The director of this applicant made an allegation that the EPA plants evidence, the current director of this applicant. Having given that evidence, I called for whether there was such a letter that put forward that allegation. I don't know whether there is or there isn't. We've produced what we can. If there's no such documentary evidence, the documentary side of that doesn't go any further.

COMMISSIONER: Yes, and, Mr Lazarus, you think there might be some documents that go to this point? Have some documents been identified that go to this point or are you're still searching?

[108]

Exhibit 5 in Class 1 proceedings - Letters between EPA and Respondent dated June and August 2017

[109]

Following the call for documents (see above in [13 ]) the EPA called for correspondence relating to the allegation by Mr Cauchi of asbestos dumping at Badgerys Creek. In the course of closing submissions before the AC, the EPA identified and tendered these documents being letters from the Respondent to the EPA dated 16 June 2017 making a complaint about an officer of the EPA and a reply letter from the EPA to the Respondent dated 15 August 2017. I note that the complaint was not that asbestos was planted on the Respondent's land at Badgerys Creek by an EPA officer.

[110]

Email dated 16 June 2023 enclosing letters between EPA and Respondent

[111]

At the end of the Class 1 hearing the parties were allowed to provide further documents by 16 June 2023 relating to the call for documents (see above in [14 ]) made by the EPA during the Class 1 hearing. An email was sent to the AC by the EPA on 16 June 2023 with the consent of the Respondent enclosing a letter from the Respondent to the EPA dated 29 July 2016 and a letter in reply from the EPA to the Respondent dated 19 August 2016. The email sent to the AC is extracted below:

[112]

...

I am solicitor for the Respondent in the above proceedings. I have included the solicitor for the Applicant in this email, who consents to this communication.

When reserving judgment in the above proceedings, Acting Commissioner Targett noted the parties were continuing to search for the correspondence Mr Luke Cauchi described alleging an EPA officer had placed an asbestos fragment on a stockpile at a premises in Badgerys Creek.

EPA officers have located the attached two letters, being a letter from Mr Luke Cauchi to EPA officer Ms Celeste Forestal dated 29 July 2016 and a reply from EPA officer Mr Christopher McElwain dated 19 August 2016.

The parties do not consider the letters raise any issues which would require the Court be addressed further. However, we draw to the Court's attention that the allegation at page 2 of the letter from Mr Cauchi does not accuse an EPA officer, and instead alleges: "we believe that this fragment may have been placed there by possibly a disgruntle employee or contractor...".

We have conferred with the Applicant and this correspondence may be tendered by consent.

May it please the Court.

...

[113]

The EPA submitted an error of law may arise from a misapplication of the correct statutory test or misunderstanding of the law, irrational, illogical or unreasonable reasoning or decision-making, and/or from failing to have regard to relevant material (including claims, issues or evidence): Muscat Developments Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 121 (Muscat Developments) at [32]-[33], Craig v South Australia (1995) 184 CLR 163; [1995] HCA 8 at 179. Failure to have regard to relevant material may result in a constructive failure to exercise jurisdiction: Georges River Council v S A F Group Pty Ltd [2021] NSWLEC 151 at [22], [46]-[48]. The duty to have regard to relevant material requires engagement with, and evaluation of, its contents: Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at [80], Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 (Plaintiff M1) at [24] (Kiefel CJ, Keane, Gordon and Steward JJ) and [43] (Gageler J).
A decision-maker is required to give real, genuine, and proper consideration to the information before them and the submissions made. A failure to refer to a relevant claim or issue (and/or to relevant material) may ground an inference that there has been a failure to consider it: ; () at [74]-[77], at [24]-[27], [108], ; at , [60]. A claim or issue need not be expressly articulated, it can arise clearly on the material: at [25]. An error will be material if, had it not been made, the decision under challenge realistically have been different: ; () at [1].

[114]

An appeal under s 56A of the LEC Act against a decision made by a Commissioner is limited to an order or a decision of the Court on a question of law.
The oral evidence of Mr Cauchi and Ex 5 were expressly referred to at [108] in Crush and Haul (class 1) and found to be irrelevant. The cover email and attached 2016 correspondence were not expressly referred to in the reasons. This ground fails for at least seven reasons.
First, the EPA's contention above in [17 ]-[21 ] is entirely new and not the subject of submissions made before the AC, let alone in a manner requiring reasoned consideration in the AC's reasons for decision. The EPA does not identify where submissions were made in the proceedings that support Ground 4. A review of the transcript and evidence demonstrates that no such submissions were made.
The email to the Court enclosing the 2016 correspondence from the EPA stated that 'The parties do not consider the letters raise any issues which would require the Court be addressed further.' That is, the EPA expressly eschewed the opportunity to make any submissions regarding that material. At no point did the EPA put a submission to the AC in the terms now sought to found Ground 4. At most the EPA noted in the email to the Court that '...we draw to the Court's attention that the allegation at page 2 of the letter from Mr Cauchi does not accuse an EPA officer, and instead alleges: "we believe that this fragment may have been placed there by possibly a disgruntle[d] employee or contractor".' The mere drawing to the AC's attention of a matter in the terms stated, in circumstances where it is otherwise said that the correspondence does not raise any issues which would require the AC be addressed further, cannot be elevated to foreshadow any of the submissions now sought to be advanced as founding an error of law.
The proposition that matters which were not the subject of submissions before the court should not be permitted to be raised for the first time on appeal was recently reaffirmed by the Court of Appeal in Sydney Metro v Expandamesh Pty Ltd [2023] NSWCA 200 () at [87] (Leeming JA and Griffiths AJA).

[115]

The EPA submitted this ground addresses the requirement to consider s 83(2)(g) (whether of good repute, having regard to character, honesty and integrity) of the POEO Act. The authorities cited by the EPA summarised above in [17 ]-[18 ] concerning the obligation to have regard to relevant material can be accepted at a broad level but how they apply in the circumstances of this case to support the EPA's Ground 4 is not apparent as I discuss below.
A key matter to consider in assessing this ground of appeal is how the EPA ran its case before the AC as the accepted principle in a s 56A appeal is that a party is bound by the way they conducted their case at first instance. The extracts of the transcript for the hearing on 13 June 2023 above in [13 ] show that in the course of cross-examination about a 2016 penalty notice issued to the Respondent and a failure to pay a costs notice Mr Cauchi its director made allegations about the behaviour of an EPA officer who he named. The EPA's counsel identified that the allegation could be relevant to the question of fit and proper person and sought to ask further questions in cross-examination, which occurred (see above in [13 ]). The transcript shows there was some toing and froing about the existence of documents supporting such an allegation. The EPA made a call for documents concerning the allegation in the course of the hearing. Documents were produced which became Ex 5 before the AC, summarised above in [15 ], which the AC referred to at [108].
The transcript of the hearing on 14 June 2023 (last day of hearing) above in [14 ] shows the parties' counsel discussed whether more documents may be produced and that further documents may be produced by the end of the week. The EPA's counsel stated that depending on what was produced an application may be made. The Commissioner was told she could reserve judgment, with the possibility of further documents being provided within a short timeframe.

[116]

[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[117]

Regardless of whether these observations made in judicial review proceedings concerning an administrative decision-maker acting as a delegate of the relevant Commonwealth minister exercising power under the Migration Act 1958 (Cth) can be applied to the task of the AC in this contested Class 1 appeal, about which I have my doubts given the entirely different nature of these two decision-making processes, claims must be clearly put if an AC is to engage with an argument. The effect of the above paragraph is the opposite of what the EPA submitted. Nothing obvious in the terms put by the EPA arises from the text of the email sent by the parties on 16 June 2023. Commissioners are not expected to infer a party's case.
To the extent the EPA sought to make submissions about Ex 5 before the AC which the Respondent criticises as an inaccurate characterisation of that correspondence as summarised above in [32 ]-[44 ], the issue cannot be pursued on appeal because it does not reflect what occurred before the AC. I note that the Respondent's criticisms otherwise appear justified.
Reliance by the EPA on s 38 of the LEC Act that Class 1 proceedings 'shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit' is entirely inappropriate. A party should ensure its case is made clearly to the Court.
The issue sought to be raised in Ground 4 was never put to the AC. That cannot occur now as a party is generally bound by the case it presented at first instance, see Expandamesh at [87] (per Leeming JA and Griffiths AJA) as a recent example of the application of this principle. In addition no error arises where a submission was not made in a way that called for reasoned consideration, see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386.

[118]

Ground 2: failure to consider the findings in Crush and Haul (criminal)

[119]

Ground 2 in the Amended Summons Commencing Appeal states:

[120]

2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely:

[121]

a. the finding made by Preston CJ in Environment Protection Authority v Crush and Haul Pty Ltd [2022] NSWLEC 113 [(Crush and Haul (criminal))] that Crush and Haul committed an offence contrary [to] section 48 of the POEO Act recklessly; and

b. the rejection by Preston CJ of evidence given by the director of Crush and Haul, Luke Cauchi, in that proceeding;

c. the finding by Preston CJ that the offending conduct "was contrary to the legislative objective expressed in the offence under s 48(2) of the POEO Act, impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme";

d. the finding by Preston CJ that Crush and Haul (with Mr Luke Cauchi's knowledge) had, in connection with a previous application for an EPL, taken steps to conceal and avoid the regulator becoming aware of its involvement at the quarry; and

e. the change in circumstances of Crush and Haul since the decision of Preston CJ, namely the reappointment of Mr Luke Cauchi as the sole director of Crush and Haul in circumstances where Preston CJ had placed weight on Mr Cauchi's prior resignation from that position.

[122]

The EPA submitted that Grounds 2(a)-(c) and (e) concern subss s 83(2)(a)-(c), (f)-(g) of the POEO Act. Ground 2(d) concerns subss 83(2)(c)-(d). Ground 2 alleges legal unreasonableness which includes failure to consider claims and material, making of illogical or irrational findings and failure to give adequate weight to relevant factors of significance. Ground 2 effectively overlaps with Ground 3.

[123]

Extracts of AC's judgment relevant to Grounds 2 and 3

[124]

Sections of the AC's judgment relevant to Grounds 2 and 3 in Crush and Haul (class 1) are extracted as follows [I have annotated the extract to indicate the ground upon which each paragraph is relied]:

[125]

3. Relevant history of environmental non-compliance

...

3(a): The applicant

[11] The applicant was found guilty of breaching s 48(2) of the POEO Act by Preston CJ in the decision of Environment Protection Authority v Crush & Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 (EPA v C&H; EPA v Cauchi). The applicant was found at [4]-[5] to have:

[126]

"[4]...extracted, processed or stored more than 30,000 tonnes of extractive materials per year in 2018 at the Corindi Quarry. From 1 January 2018 to 31 December 2018, Crush and Haul sold 92,966.28 tonnes of extractive materials from Corindi Quarry.

[5] Crush and Haul was accordingly required to hold an environment protection licence to carry on the scheduled activity of land-based extractive activity at the premises of Corindi Quarry. Crush and Haul did not hold such a licence at the time that the activity was carried on. It thereby committed an offence against s 48(2) of the POEO Act."

[127]

[Ground 2(a)] [12] Relevantly, the applicant was found by Preston CJ to have:

[128]

(1) committed the offence "recklessly", stating at [81]-[82]:

"[81] In these circumstances, I find beyond reasonable doubt that Crush and Haul did commit the offence against s 48(2) of the POEO Act recklessly. Crush and Haul carried on the land-based extractive activity at Corindi Quarry with knowledge or foresight that the particular consequence or circumstance, that an environment protection licence was required for the premises by Crush and Haul extracting, processing or storing more than 30,000 tonnes per annum, was likely to result...

I find Crush and Haul did have this knowledge or foresight of the likelihood of the consequence or circumstance, that the 30,000 tonnes threshold would be exceeded triggering the need to obtain an environment protection licence, occurring."

(2) not have caused any environmental harm, stating, at [13]:

[129]

"[13]...Crush and Haul's carrying on of the scheduled activity of land‑based extractive activity without holding an environment protection licence did not cause any actual harm to the environment."

[130]

(3) committed an offence against s 48(2) of the POEO Act of "low to medium objective seriousness" at [90].

[131]

...

3(b): Mr Luke Cauchi

[16] Mr Luke Cauchi is the current and only director of the applicant. Mr Luke Cauchi was relevantly convicted of an offence against s 169A(2) of the POEO Act in connection with the offence committed by the applicant discussed above in section 3(a) of this judgment. Preston CJ relevantly stated at [7]:

[132]

"[7] In the circumstances where Crush and Haul committed an offence against s 48(2) of the POEO Act (which is defined as an executive liability offence in s 169A(1) of the POEO Act), Mr Cauchi was a director of Crush and Haul and Mr Cauchi knew or ought reasonably to have known that the executive liability offence would be or was being committed and failed to take all reasonable steps to prevent or stop the commission of that offence, Mr Cauchi himself committed an offence against s169A(2) of the POEO Act."

[133]

[Ground 2(b)] [17] His Honour went on to state at [62] and [66]:

[134]

"[62] I do not accept Mr Cauchi's assertion of his belief that Crush and Haul would not and did not exceed the 30,000 tonnes threshold during 2018...

...

[66] I also do not accept Mr Cauchi's assertion that he believed Crush and Haul could keep quarrying in excess of 30,000 tonnes once an application for an environment protection licence had been lodged with the EPA, regardless of whether an environment protection licence was actually granted by the EPA..."

[135]

[18] However, unlike the applicant, his Honour held at [128] that the "EPA has not established beyond reasonable doubt that Mr Cauchi committed the offence against s 169A(2) of the POEO Act recklessly."

[19] In relation to environmental harm, his Honour stated at [131] that the "EPA did not contend that Mr Cauchi's commission of the offence against s 169A(2) of the POEO Act caused actual environmental harm, that there was foreseeability of environmental harm, or that there were practical measures that might have been taken to prevent, control, abate or mitigate any environmental harm".

[20] His Honour found the offence against s 169A(2) of the POEO Act committed by Mr Luke Cauchi was "of low objective seriousness" at [133].

...

5. Consideration of meaning and scope of term "fit and proper person" under the Protection of the Environment Operations Act

...

[Ground 2(c)] [64] However, the objects of the POEO Act include (at s 3(a)), "to protect, restore and enhance the quality of the environment". The licensing regime set out in Chapter 3 of the POEO Act seeks to regulate scheduled activities which "are by their nature activities that are either inherently or when conducted in a certain manner or extent likely to cause harm to the environment" (EPA v C&H; EPA v Cauchi at [16]). I therefore agree with the respondent's submission that in order to grant a Licence to the applicant in this matter, I must be satisfied that the applicant is a "fit and proper person" for the purposes of s 45(f) of the POEO Act.

6. Consideration of whether the applicant is a "fit and proper person" under the Protection of the Environment Operations Act

...

Section 83(2)(a) "That the person has contravened any of the environment protection legislation or other relevant legislation, or has held a licence or other authority that has been suspended or revoked under any of the environment protection legislation or other relevant legislation"

...

[68] As set out above, the applicant was found guilty of breaching s 48(2) of the POEO Act by Preston CJ in the decision of EPA v C&H; EPA v Cauchi. The offence was found to be of "low to medium objective seriousness" (at [90]).

[136]

"[62] I do not accept Mr Cauchi's assertion of his belief that Crush and Haul would not and did not exceed the 30,000 tonnes threshold during 2018. Mr Cauchi knew that Crush and Haul was obliged under the sub management agreement to ensure continuous productivity of the quarry and a bare minimum of 30,000 tonnes per annum out the gate...

...

[63] I also do not accept Mr Cauchi's assertion that he believed Crush and Haul could keep quarrying in excess of 30,000 tonnes once an application for an environment protection licence had been lodged with the EPA, regardless of whether an environment protection license was actually granted by the EPA..."

[137]

[75] However, his Honour found the offence against s 169A(2) of the POEO Act committed by Mr Luke Cauchi was "of low objective seriousness" (EPA v C&H; EPA v Cauchi at [133]).

[76] Noting that the offence for which Mr Luke Cauchi was convicted related to the same conduct for which the applicant was convicted, in EPA v C&H; EPA v Cauchi, I similarly do not consider that Mr Luke Cauchi's single conviction, which did not result in environmental harm and which was found to be of low objective seriousness, is determinative of the applicant, through Mr Luke Cauchi as its sole director, not being a "fit and proper" person to hold a Licence under the POEO Act.

[Ground 3] [77] This is particularly in circumstances where Mr Cauchi has no other convictions for environmental offences (Affidavit, Luke Cauchi, 24 April 2023, par 28), has expressed shame and embarrassment in relation to the 2022 convictions (Affidavit, Luke Cauchi, 24 April 2023, par 34), has educated, and is continuing to educate himself on his responsibilities as a director (Affidavit, Luke Cauchi, 24 April 2023, pars 36-38, 52-53, 68), and has committed to environmental compliance in the future (Affidavit, Luke Cauchi, 8 June 2023, pars 6 and 9).

...

[Ground 3] Former director - Mrs Louise Cauchi

...

Other matters

...

[94] In my consideration of s 83(2) and the numerous references to a "former director", and noting that s 83 is a non-exhaustive and non-binding list of matters for consideration, I agree with the applicant's submission that the weight to be placed on a former director's history of contraventions with environment protection licence should be considered in the context of their present and future influence or control over the conduct of the applicant company seeking to obtain a Licence.

[95] The facts of this case are that Mrs Louise Cauchi only ceased to be a director of the applicant company in January 2023, is a 100% shareholder of the applicant, and the current sole director's mother. These facts must be considered in the context of Mrs Louise Cauchi's history of environmental non compliances and the findings made by Preston CJ in EPA v C&H; EPA v Cauchi at [106] that:

[138]

"[106] I accept that there is a risk that Crush and Haul might reoffend whilst Mrs Cauchi is the sole director of Crush and Haul. Her record as a director of companies that breach the POEO Act is not a good one. Nevertheless, lessons can be learnt even if belatedly. I consider that in circumstances where Mrs Cauchi is the director of Crush and Haul there is a need for the sentence imposed on Crush and Haul for its offence to reflect specific deterrence. If this is done, Crush and Haul is less likely to reoffend."

[139]

[96] The respondent submitted (in its written submissions at par 61) that "the "undertakings" which Crush and Haul claims Mr Cauchi and Mrs Cauchi have provided to the Court do not advance matters, given their continued pattern of breaching environment protection legislation, their convictions and their non-compliance with orders made by this Court (cf ASFC Part B [1(b5)]-[1(b7)] sic)."

[97] The fact that Mrs Louise Cauchi has provided an undertaking to the Court dated 13 June 2023 (Ex G) suggests that the applicant acknowledges that Mrs Cauchi's environmental compliance history may present an issue in the applicant obtaining a Licence. I consider that Mrs Louise Cauchi's control over the current or future conduct of the applicant company is a matter of relevance in the determination of whether the applicant should be granted a Licence under the POEO Act.

[98] The applicant argued in its written submissions that Mrs Louise Cauchi at par 72 "no longer has control of the operations of the company" and at par 74 "will have no involvement in the operational management of the applicant". The applicant's submissions go on to state at par 75 that:

[140]

"The Court also has evidence before it that both Mrs Louise Cauchi and Mr Joe Cauchi no longer have direct or indirect control of the operational management of the applicant. The court can be comfortably satisfied that this is the case having regard to:

[141]

(a) the personal circumstances or Mr and Mrs Cauchi (in particular the terminal health of Mr Joseph Cauchi, that they are now residing overseas; and their age) (Affidavit, Luke Cauchi, 24 April 2023 at par 8);

(b) the written undertaking, dated 23 April 2013, provided by Mrs Louise Cauchi to the Court (Affidavit, Luke Cauchi, 24 April 2023 at par 48 and Exhibit LJC-2, Tab 3);

(c) the evidence of Mr Luke Cauchi that it is time for generational change and providing undertakings to the Court and confirming that the applicant is willing to accept a condition restricting the involvement of Mr and Mrs Cauchi in the operational management of the Applicant (Affidavit, Luke Cauchi, 24 April 2023 at par 39 and 41-42); and

(d) the applicant's proposed condition A4.1 below."

[142]

[99] In relation to the concept of control, the respondent's primary argument appeared to be that this matter concerned a "family group of companies" (Tcpt, 14 June 2023, p 10 (20)-(23)) and "this family group has a history of offending under the legislation" (Tcpt, 14 June 2023, p 11, (16)-(17)).

[100] However, the respondent did not provide any evidence that Mrs Louise Cauchi was presently controlling, or would control in the future, the conduct of the applicant company.

[101] As stated above, Mrs Louise Cauchi provided an undertaking to the Court on 13 June 2023 which relevantly stated:

"I undertake to the Land and Environment Court of New South Wales:

[143]

1. Not to exercise my [sic] powers, pursuant to s203C of the Corporations Act 2001 or by any other means, to remove Luke Joseph Cauchi as a Director or Secretary of Crush and Haul, and to appoint myself, or Joseph Cauchi, as a Director or Secretary of Crush and Haul in his place.

2. Not to exercise my powers, pursuant to s203C of the Corporations Act 2001 or by any other means, to appoint myself as a Director or Secretary of Crush and Haul.

3. Not to exercise my powers, pursuant to s 203C of the Corporations Act 2001 or by any other means, to appoint Joseph Cauchi (date of birth 1 October 1962) as a Director or Secretary of Crush and Haul."

[144]

[102] Mrs Louise Cauchi is no longer a director of the applicant, did not provide affidavit evidence in the proceedings and was not cross examined during the hearing. I have therefore not placed material weight on the undertaking she provided to the Court on 13 June 2023.

[103] As the current and only director of the applicant, I find the affidavit evidence and testimony of Mr Luke Cauchi to be highly relevant in determining whether the applicant is a fit and proper person to hold a Licence under the POEO Act. The affidavit of Mr Luke Cauchi, affirmed on 24 April 2023, relevantly provides the following:

[145]

(1) "Having gone through the process of being convicted by the Court, I believe that I now have a better appreciation of the personal responsibilities of being appointed a director of a corporation and the importance of maintaining oversight of all matters and to not just rely on the advice of others, including my mother and father" (at par 38).

(2) "I also undertake to the Court that whilst ever I am a Sole Director of the Applicant I will not permit the Applicant to employ mum (Mrs Louise Cauchi) or dad (Joseph Cauchi) in relation to any future operations of the Applicant, and will not permit them to hold positions as Directors or Secretaries of the Applicant" (at par 49).

(3) "I further undertake to the Court that should I ever purchase any of the shares in the Applicant I will not exercise any rights under the Corporations Act 2001 (Cth) or by any other means to enable the Applicant to employ mother (Louise Cauchi) or father (Joseph Cauchi) in relation to any future operations of the Applicant, and will also not exercise any such rights to enable them to hold positions as Directors or Secretaries of the Applicant" (at par 50).

(4) "Simply put, I want to turn over a new leaf and operate 100% in accordance with the law. Proof of my commitment is how we have pursued the development application and environment protection licence process, spending approximately $600,000 to ensure that we have all required approvals. I have environmental and planning consultants, environmental lawyers and other experts who the Applicant will pay a lot of money to make sure we comply with all environment protection laws in the future" (at par 66).

[146]

[104] The affidavit of Mr Luke Cauchi, affirmed on 8 June 2023, relevantly provides the following:

[147]

(1) "I am not looking to excuse, or explain away the past conduct of those other entities, or Louise Cauchi. Rather, what I have been trying to do is give the Court and EPA comfort that it can be confident that conduct is in the past, and that I will now be taking the Applicant forward under my own sole control, in a way that is committed to complying with environmental and planning laws" (at par 6).

(2) "More than my father's health, between my parents, myself and my siblings, my parents and I have agreed that it is time for generational change... As both part of that generational change, and because of my father's health (and my parents ageing), I have now taken back control of the company and operation of the quarry, and intend on keeping that control - I have absolutely no intention of my parents taking on a directorship or management role in the company in the future. Moreover, I am determined to put my parents' (and particularly my mother's) compliance issues in the past, and turn over a new leaf to running a fully compliant, law abiding company" (at par 9).

(3) "I am also conscious that if the Court grants the EPL to the company, that it would be a second chance to the company. I am fully aware that this means that we would be on a very "tight leash" and that any future breaches of a material nature may lead to the EPA or Court suspending or revoking the EPL. I have noted that the EPA proposes to include conditions on the EPL for audits of weighbridge data and CCTV (condition M10.1) quarterly, a monthly report listing the quantities of extractive material transported from the facility (M10.2), and 6-monthly volumetric surveys (M10.3). I accept these conditions, and embrace them - I wish to move forward with a law abiding company, and if granted an EPL, am happy to provide any reasonable information and data to the EPA to give it comfort that the company is complying with the law" (at par 10).

[148]

[105] During cross examination I found Mr Luke Cauchi to be genuine in his remorse and embarrassment for his and the applicant's convictions in 2022. I note that Preston CJ made similar findings in EPA v C&H; EPA v Cauchi, at [138] stating:

[149]

"[138] Mr Cauchi has expressed his genuine remorse for committing the offence... I accept Mr Cauchi's statements as evidencing his remorse for committing the offence. He has accepted responsibility for committing the offence, apologised for doing so and undertaken not to do so in future."

[150]

[106] The respondent also accepted during the hearing that Mr Luke Cauchi is "ashamed and embarrassed" and "regretful" (Tcpt, 14 June 2023, pp 19 (7) and 20 (13)) about his and the applicant's convictions.

[107] I also found Mr Luke Cauchi to provide evidence which he believed to be truthful, even if he grappled with some of the questions. For example, when asked if the applicant company had ever informed the respondent that it was dissatisfied with the respondent's cost compliance notice in 2016 requiring payment to the respondent of over $66,000 in relation to a premises at Badgerys Creek, Mr Cauchi, after some thought, stated that relevant correspondence had been provided to the EPA. The applicant was then able to tender evidence of this correspondence during the hearing (letter from the applicant to the respondent dated 7 October 2016 - Ex H).

[108] For completeness I note that I make no findings in relation to Mr Luke Cauchi's claims of improper conduct by the EPA in 2016 in relation to a property at Badgerys Creek as there was no evidence of these allegations presented to me by either party (other than one letter from the applicant to the respondent dated 16 June 2017 (Ex 5) and Mr Cauchi's assertions during the hearing) and I do not consider them to be relevant as to whether the applicant is a fit and proper person to hold the Licence applied for concerning Corindi Quarry.

[109] The respondent provided no evidence that the statements in Mr Luke Cauchi's affidavits of 24 April 2023 and 8 June 2023 and his evidence in Court that Mrs Louise Cauchi would not control the conduct of the applicant was false or inaccurate. The fact that Mrs Louise Cauchi is Mr Luke Cauchi's mother is, without more, insufficient to displace Mr Luke Cauchi's evidence that he will control the applicant's compliance with the Licence, if granted.

[110] As stated previously, Mrs Louise Cauchi is a 100% shareholder of the applicant. However, I note that:

[151]

(1) the compliance history of shareholders in an applicant company are not matters listed for consideration under s 83 of the POEO Act, and

(2) the respondent did not advance any argument establishing that Ms Cauchi is presently controlling the conduct of the applicant, or would do so in future, by virtue of being 100% shareholder, despite the parties being directly asked to address this issue (Tcpt, 13 June 2023, p 41 (9)-(18)).

[152]

[111] Although I have taken in consideration that Mrs Louise Cauchi is a 100% shareholder of the applicant, I do not consider that there is any cogent evidence before me to refute Mr Luke Cauchi's evidence that he will be taking the applicant forward under his "own sole control, in a way committed to complying with environmental and planning laws" (Affidavit, Luke Cauchi, 8 June 2023 at par 6).

[112] I have therefore not assigned Mrs Louise Cauchi's history of contraventions of environment protection legislation material weight in the consideration of whether the applicant is a fit and proper person to hold a Licence under the POEO Act for the scheduled activities sought and have placed significantly more weight on the testimony and evidence of Mr Luke Cauchi in the hearing before me.

[113] I note that "honesty" is one of the three characteristics espoused in Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156; [1955] HCA 28 to denote "fitness" with respect to an office. In the absence of any cogent evidence to the contrary, I find Mr Luke Cauchi, and through him the applicant, to be genuine and honest in his remorse for his and the applicant's past offences, and his intention to operate in accordance with environmental protection legislation and the conditions of any Licence issued under the POEO Act.

...

Section 83(c) "the person's record of compliance with the environment protection legislation"

[Ground 2(d)] [121] Relevant to this head of consideration, the respondent states in its ASOFC in Reply (p 16-17) that the following facts should be considered:

[153]

(1) The applicant was convicted for a breach of s 48(2) of the POEO Act in 2022.

(2) The applicant was issued with two penalty notices under the POEO Act in 2016.

(3) The applicant was issued with a cost compliance notice in 2016, while Mr Luke Cauchi was director, requiring payment to the EPA of over $66,000 for the costs of sampling and other remediation steps for the premises at Badgerys Creek. Payment was never made.

(4) An application was made to the respondent for a Licence while the applicant was operating at Corindi Quarry in 2018. Mrs Louise Cauchi gave instructions for the application to be made in the name of the person subleasing the quarry to the applicant and the purpose of this was "to avoid the EPA realising that the Cauchi family 'have a share of the pie'" (EPA v C&H; EPA v Cauchi at [23] and [44]).

(5) The applicant's 20 September 2022 application for an environment protection licence contained misleading information about the applicant's record of compliance as described above (this argument was not pressed at hearing on the basis that the respondent accepted that the relevant sections of the form that had been incorrectly filled out were done so inadvertently and there was no deliberate attempt to deceive the respondent (Tcpt, 13 June, p 68 (21)-(23)).

[154]

[122] In relation to these arguments, the applicant argued:

[155]

(1) The single breach of s 48(2) of the POEO Act for which the applicant was convicted was found by Preston CJ to be of low to moderate objective seriousness.

(2) There is no pattern of conduct arising from the issue of the two penalty notices in 2016 and the offences committed under s 48(2) by the company or the offence committed by Mr Luke Cauchi, nor was there any proof of an offence in relation to the conduct in 2016 (Tcpt, 14 June, p 28 (32)-(26)).

(3) According to the respondents own Prosecution Guidelines (Ex C, tab 7 - EPA Prosecution Guidelines, March 2013, [5.1.1]), penalty notices are issued for "minor breaches" which are "not considered serious enough to warrant instituting Court proceedings". Further, the applicant argued that "the payment of a penalty notice doesn't constitute an admission or amount to a conviction of the offence" (Tcpt, 13 June, p 59 (7)-(9)). The applicant also submitted that based on the evidence, the material the subject of the relevant notices was removed but just not within the time period specified by the respondent (Tcpt, 13 June, p 58 (29)-(30)).

(4) In relation to the outstanding amount of $66,000 for the respondent's costs at Badgerys Creek issued in 2016, the respondent submitted that there is "clear evidence that there was a bona fide dispute about it, in addition to the fact that the EPA hasn't pursued the matter in the previous seven years" (Tcpt, 14 June, p 26 (9)-(11)).

[156]

...

[Ground 2(d)(e)] [125] In relation to the application made to the respondent for a Licence, while the applicant was operating at Corindi Quarry in 2018, which contained false information at the instruction of Mrs Louise Cauchi, no evidence was provided that Mr Luke Cauchi had authorised or actioned this conduct. I have placed significant weight on Mr Luke Cauchi's evidence that he will have "sole control" of the applicant going forward (Affidavit, Luke Cauchi, 8 June 2023, par 6), is "aware of [his] obligations in the role of director" (Affidavit, Luke Cauchi, 24 April 2023, par 53) and "wishes to move forward with a law abiding company" (Affidavit, Luke Cauchi, 8 June 2023, par 10).

...

[127] The applicant is seeking a Licence so that it may lawfully carry out the activity it was convicted of carrying out unlawfully by Preston CJ in the EPA v Crush and Haul; EPA v Cauchi litigation. It was not alleged by the respondent that the applicant has carried out any unlawful activities, under environment protection legislation or otherwise, since those activities in 2018 for which it was convicted in that litigation.

[128] I do not find the applicant's record of compliance with the environment protection legislation to be so poor that it would result in it not being considered a fit and proper person for the purposes of obtaining a Licence under the POEO Act.

Section 83(d) "if the person is a corporation, the record of compliance with the environment protection legislation of any current or former director of the corporation or of a related body corporate."

Current director

...

[130] It was not alleged by the respondent that Mr Luke Cauchi has carried out any unlawful activities, under environment protection or otherwise, since those activities in 2018 for which he was convicted.

[131] I note that Mr Luke Cauchi was convicted of an offence arising out of the same conduct for which the applicant was convicted under s 48(2) of the POEO Act. For the reasons set out in relation to the applicant above at [121]-[128], I do not find Mr Luke Cauchi's record of compliance with environment protection legislation to be so poor as to warrant a determination that the applicant is not a fit and proper person to hold a Licence under the POEO Act by virtue of Mr Luke Cauchi being its sole director.

[157]

(1) "ashamed and embarrassed" by the applicant's and his own conviction in 2022 (Affidavit, Luke Cauchi, 24 April 2023 at par 34);

(2) determined to "turn over a new leaf to running a fully compliant, law-abiding company," (Affidavit, Luke Cauchi, 8 June 2023 at par 9); and

(3) is "aware of [his] obligations within the role of director" (Affidavit, Luke Cauchi, 24 April 2023 at par 53).

[158]

[150] The respondent accepted during the hearing that that Mr Luke Cauchi is "ashamed and embarrassed" and "regretful" (Tcpt, 14 June 2023, pp 19 (7) and 20 (13)).

[151] I therefore do not consider that one conviction, on its own, which did not result in environmental harm, which was found to be of low objective seriousness, and for which the person acknowledges his mistakes and is committed to future environmental compliance, amounts to a person not being of good repute.

...

Former director - Mrs Louise Cauchi

[Ground 2(d)] [154] The respondent states in its ASOFC in Reply at p 22 that "the Respondent has formed the view the former director of the Applicant, Mrs Louise Cauchi, is not of good repute as Mrs Cauchi has previously breached environment protection legislation including providing misleading information to the Respondent as described above".

[Ground 2(d)] [155] Mrs Louise Cauchi's environmental compliance history is "not a good one" (EPA v C&H; EPA v Cauchi at [106]) and would indicate a disregard for compliance with environmental legislation.

[Ground 2(d)] [156] Like with Mrs Louise Cauchi's environmental compliance history, I find that Mrs Louise Cauchi's reputation is only relevant insofar as Mrs Louise Cauchi is established to currently control or be likely to control in future, the conduct of the applicant in relation to its compliance with the Licence applied for. As set out previously, I do not consider the respondent to have established:

[159]

(1) that Mr Luke Cauchi's affidavit and oral evidence that he will control the entity is false or inaccurate;

(2) that Mrs Louise Cauchi is controlling, or will control, the applicant's conduct going forward; or

(3) how Mrs Louise Cauchi could or would control the company by virtue of being 100% shareholder of the applicant.

[160]

[Ground 2(d)] [157] I therefore do not need to consider whether Mrs Louise Cauchi is of good repute for the purposes of determining whether the applicant is a fit and proper person to hold a Licence under the POEO Act.

...

7. Decision regarding whether the applicant is a "fit and proper person"

...

[178] My reasons for this determination are as set out above, but can be generally summarised as follows:

[161]

[Ground 2(a)] (1) the applicant has only one prior conviction under s 48(2) of the POEO Act where no environmental harm was caused and was deemed to be of low to medium objective seriousness (although it is noted that the offence was found by Preston CJ to have been carried out recklessly);

[Ground 2(a)] (2) the current sole director, Mr Luke Cauchi, has only one prior conviction, being an executive liability offence under s 169A(2) of the POEO Act connected to the offence for which the applicant was convicted as set out above. This offence was found by Preston CJ to not have been carried out recklessly and to be of low objective seriousness. His Honour similarly found the offence to have caused no environmental harm;

(3) I find Mr Luke Cauchi to be honest and genuine in his remorse for his and the applicant's 2022 convictions;

(4) I have placed material weight on Mr Luke Cauchi's evidence that he will have "sole control" of the applicant going forward, is aware of his obligations in the role of director, and wishes to move forward with a law abiding company;

(5) the former director, Mrs Louise Cauchi has a more concerning compliance history, however, is no longer a director of the applicant and there was no cogent evidence provided which refuted Mr Luke Cauchi's affidavit evidence and testimony that he will be in control of the applicant and its activities going forward;

(6) the respondent did not contend in the hearing that the activities sought to be licensed will not be managed and in the hands of a technically competent person. In the absence of any cogent evidence to the contrary, I have accepted that the activities sought to be licensed will be managed and in the hands of a technically competent and able person;

(7) the respondent did not contend in the hearing that the applicant does not have the financial capacity to comply with the obligations proposed to be imposed under the licence. In the absence of any evidence to the contrary, I have accepted that the applicant has the financial capacity to comply with the obligations proposed to be imposed under the licence; and

(8) the applicant's outstanding costs owed to the respondent are of little weight as the:

[162]

(a) 2016 costs were disputed by the applicant and not ultimately pursued by the respondent (on evidence before the Court); and

(b) outstanding costs from the EPA v Crush and Haul; EPA v Cauchi litigation is only six months old and there was undisputed evidence before the Court from Mr Luke Cauchi that these costs will be paid in the near future.

[163]

Sections of the transcript of the Class 1 hearing on 13 June 2023 are extracted below:

[164]

[Ground 2(e)] [pp 11(37)-12(11)]

[BEASLEY] Q. ...Just generally, you were the sole director of the applicant, Crush and Haul, at the time the company was created in October 2014, is that right?

[Mr CAUCHI] A. Correct, yeah.

Q. As we've just heard, you remain the sole director of the applicant until February 2022, around February 2022?

A. Yeah, yeah, yeah.

Q. Then you resigned as a director for a period of time and your mother, Louise, stepped in as director of the applicant, correct?

A. Yeah.

Q. And she was a director of Crush and Haul until 31 January this year, correct?

A. Mm-hmm.

Q. You just have to say "yes" for the transcript, sir.

A. Yes, yes, yep.

Q. But since 31 January 2023, you've become the sole director again of Crush and Haul?

A. Yes.

...

[Ground 2(b)] [p 29(23)-(40)]

[BEASLEY] Q. Do you recall saying in your affidavit in those proceedings that you thought that once you applied for an EPL you were allowed to keep quarrying, do you remember that?

[Mr CAUCHI] A. Yes.

Q. Do you remember Justice Preston didn't accept that evidence?

A. Yes.

Q. He didn't accept your assertion that Crush and Haul wouldn't exceed the 30,000 tonne limit, do you remember that?

OBJECTION. RELEVANCE. QUESTION PRESSED. LEGAL ARGUMENT.

QUESTION ALLOWED

Q. You understand that in his judgment - I am going to abbreviate this, I don't think I should have to but I am - you understand that Justice Preston didn't accept that Crush and Haul believed it hadn't exceeded the 30,000 tonne limit, do you remember that?

...

LAZARUS: ...

[Ground 2(c)] [p 55(32)-(37)]

Turning then to para 13 and the question of extent of harm. Paragraph 14, second line - I may as well read all of para 14, "The prosecutor bore the onus of establishing environmental harm and the EPA did not establish that such harm was caused in this case". Although we note his Honour's findings at para 16 that, "Scheduled activities are...to the environment". Paragraph 17, the reference to impeding the achievement of the objects of the Act.

[165]

Sections from the transcript of the Class 1 hearing on 14 June 2023 referred to by the parties are extracted below:

[166]

[Ground 2(e)] [p 13(8)-(11)]

[BEASLEY:] ... My friend relied on or read to you para 103 where his Honour accepted that Mr Cauchi was unlikely to reoffend but the words there are, "as he has...and transport industry." Of course, Mr Cauchi is now back as a director of the applicant.

...

[Ground 2(e)] [p 19(20)-(28)]

BEASLEY: You can take what I've just said with a grain of salt. He mentions the Court saying he was unlikely to reoffend in 51 without giving you the context that that finding was made by Preston CJ on the basis that Mr Cauchi would not be an ongoing director of Crush and Haul. He says he's willing to do training courses. He then says, "We're committed to no further breaches," starting at para 54, which can be noted but a commitment to obey the law is kind of the minimum commitment. He says in 61 that his family has spent a lot of money on the DA. That's completely irrelevant to whether the applicant is a fit and proper person.

...

[Ground 2(b)] [p 20(3)-(50)]

BEASLEY: Yes, at para 6 he says he's not looking to excuse or explain away the past but he'd like to give comfort that the conduct is in the past. Clearly at least the EPA doesn't have that confidence but, in any event, he says that. At para discretionary decision making to give second chances or tenth chances to applicants for EPLs.

You'll determine it in accordance with the evidence before you. It's good that Mr Cauchi says he wants to move forward as a law-abiding company but, again, with respect, being a law-abiding company is a minimum standard. He talks about the seriousness of breaking the law in the past in para 11 and that he's regretful. We can accept that he's regretful.

At para 13 he talks about his role as the safety manager and the quarry manager again. In the last sentence of 13 he talks about the steep learning curve he was on. That was explored in his evidence and, with all due respect, you don't need to be on a steep learning curve or have much knowledge to have an appreciation of the sort of breaches that Preston CJ was dealing with or, frankly, the breaches back in 2016 and it doesn't take much knowledge to know that you can't unlawfully operate a waste facility.

It doesn't take much knowledge to know that if you're directed in a clean-up notice to clean up a site you're operating unlawfully you should clean it up. It doesn't take much knowledge to know that you can't take more than 30,000 tonnes of material from a quarry without an EPL and it doesn't take much knowledge to know that if you do take more than 30,000 tonnes of material from a quarry without an EPL you're breaking the law.

[167]

Respondent's Amended Statement of Facts and Contentions before the AC

[168]

The Respondent's Amended Statement of Facts and Contentions (Amended SOFAC) before the AC are relevantly extracted below (track changes omitted):

[169]

PART A - FACTS

...

Status of the Applicant

...

[Ground 2(e)] [36] As noted above, from 31 January 2023, Mr Luke Cauchi was re-appointed as sole Director and Secretary of the Applicant.

[170]

EPA's Amended Statement of Facts and Contentions in Reply before the AC

[171]

The EPA's Amended SOFAC in Reply before the AC is relevantly extracted below (track changes omitted):

[172]

PART A - FACTS

...

History of Corindi Quarry since being occupied by the Applicant

...

[Ground 2(d)] [15] The Respondent admits paragraph 15 of the SOFAC and says further:

...

[173]

(b) An application was made to the Respondent for an environment protection licence while the Applicant was operating at Corindi Quarry in 2018. Mrs Louise Cauchi gave instructions for the application to be made in the name of the person subleasing the quarry to the Applicant and the purpose of this was: "to avoid the EPA realising that the Cauchi family 'have a share of the pie'": Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 at [23] and [44]. The environment protection licence was not granted.

[174]

...

[Ground 2(b)] [21] The Respondent admits paragraph 21 of the SOFAC and says further Chief Justice Preston found at [16]-[17]:

[175]

Scheduled activities are by their nature activities that are either inherently or when conducted in a certain manner or extent likely to cause harm to the environment. Land-based extractive activity, where more than 30,000 tonnes of material is extracted, processed or stored at premises, is declared to be a scheduled activity. The environmental harm that might be caused by the carrying on of such a scheduled activity is better able to be managed by the person who wishes to carry on the activity holding a licence that authorises the activity to be carried on at the premises and by carrying on the activity in accordance with the licence.

Crush and Haul's conduct in extracting, processing or storing more than 30,000 tonnes of extractive materials at Corindi Quarry without holding a licence was contrary to the legislative objective expressed in the offence under s 48(2) of the POEO Act, impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme.

[176]

[Ground 2(b)] [22] The Respondent admits paragraph 22 of the SOFAC and says further Chief Justice Preston found:

[177]

(a) at [61]-[66] on Mr Luke Cauchi's evidence in the proceedings: "I do not accept Mr Cauchi's assertion of his belief that Crush and Haul would not and did not exceed the 30,000 tonnes threshold during 2018... I also do not accept Mr Cauchi's assertion that he believed that Crush and Haul could keep quarrying in excess of 30,000 tonnes once an application for an environment protection licence had been lodged with the EPA, regardless of whether an environment protection licence was actually granted by the EPA."

(b) at [73]-[75] on Mrs Louise Cauchi's evidence in the proceedings about her asserted belief the Applicant had not exceeded the threshold for obtaining an environment protection licence: "I do not accept that Mrs Cauchi in fact held that belief - it is inconsistent with her conduct and the facts."

(c) at [78]-[81]: "I reject Crush and Haul's submission that it believed that it had not exceeded the 30,000 tonnes threshold. To the contrary, I find Crush and Haul was aware that it would and did exceed the 30,000 tonnes threshold that would require it to obtain an environment protection licence but decided to continue carrying on the land-based extractive activity at Corindi Quarry regardless.

[178]

...

In these circumstances, I find beyond reasonable doubt that Crush and Haul did commit the offence against s 48(2) of the POEO Act recklessly."

[Ground 2(e)] [22A] The Respondent admits paragraph 22A is a quote from the judgment Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 and says further the first sentence of paragraph 139 is necessary context for why the EPA and the Court accepted Mr Cauchi was unlikely to reoffend: "Mr Cauchi resigned as a director of Crush and Haul in February 2022 and now runs a different business in the civil and transport industry in the Sydney region."

...

PART B - CONTENTIONS

...

The Applicant is not a fit and proper person

[1] The Applicant is not a fit and proper person to hold an EPL, having regard to the considerations set out in section 83(2) of the POEO Act. The particulars of each relevant consideration in that section are set out in the table at Annexure A to this SOFAC in Reply.

...

Particulars

...

[Ground 2(c)] (b) Environment protection licences authorise activities that necessarily include a risk of harm to the environment. As Chief Justice Preston commented in Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113: "Scheduled activities are by their nature activities that are either inherently or when conducted in a certain manner or extent likely to cause harm to the environment". The POEO Act provides for a regulatory regime in addition to development consents to address the risk. The fact development consent has been granted for the Applicant's proposed activity does not mean an environment protection licence should also necessarily be granted. The POEO Act provides for additional considerations, such as whether an applicant is a fit and proper person, to be considered before granting an environment protection licence.

[179]

Annexure A of the Amended SOFAC in Reply stated:

[180]

(1) Regarding s 83(2)(c) (record of compliance) of the POEO Act, "[Crush and Haul Pty Ltd's] 2018 application for an environment protection licence contained misleading information about [Crush and Haul Pty Ltd] for the environment protection licence, as described above in paragraph 15(b)";

(2) Regarding s 83(2)(f) (good repute) of the POEO Act, "The [EPA] has formed the opinion [Crush and Haul Pty Ltd] is not of good repute given [Crush and Haul Pty Ltd's] conviction under the POEO Act described above"; and

(3) Regarding s 83(2)(g) (good repute) of the POEO Act, "The [EPA] has formed the view the current director of [Crush and Haul Pty Ltd], Mr Luke Cauchi, is not of good repute as Mr Cauchi has a conviction for a breach of the POEO Act as described above".

[181]

The EPA's written submissions before the AC filed 9 June 2023 are relevantly extracted below (footnotes omitted):

[182]

[35] Section 83(2)(a): ...

...

[Ground 2(c)] [37] Crush and Haul's conduct in extracting, processing or storing more than 30,000 tonnes of extractive materials at Corindi Quarry without holding a licence was found by Preston CJ to be "contrary to the legislative objective expressed in the offence under s 48(2) of the POEO Act, impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme [in Crush and Haul (criminal) at [17]].

...

[43] Section 83(2)(c): This consideration pertains to Crush and Haul's record of compliance with environment protection legislation. Crush and Haul was convicted of an offence against the POEO Act in 2022. The following matters should also be noted:

...

[Ground 2(d)] d) An earlier EPL application made in 2018 contained misleading information about the applicant for the licence, in that Mrs Cauchi had given instructions for that application to be made in the name of the person subleasing the quarry to Crush and Haul, the purpose of which was "to avoid the EPA realising that the Cauchi family 'have a share of the pie'" [in Crush and Haul (criminal) at [23], [44]].

...

Matters raised in Crush and Haul's statement of facts and contentions (ASFC)

...

[Ground(e)] [60] Secondly, Preston CJ's finding that Crush and Haul "should be less likely to offend" proceeded on the footing that Mr Cauchi had resigned as a director of Crush and Haul and operated a business in the civil and transport industry [in Crush and Haul (criminal) at [103]]. Yet Mr Cauchi is presently the director of Crush and Haul.

...

[183]

In the Class 1 proceedings the EPA relied on an extended history of environmental non-compliance by the Respondent, its directors (former and current), and related companies. A key decision is Environment Protection Authority v Crush and Haul Pty Ltd; Environment Protection Authority v Cauchi [2022] NSWLEC 113 (Crush and Haul (criminal)), in which both the Respondent and Mr Cauchi were found guilty of offences under the POEO Act (namely, for undertaking scheduled activities on the Land without an EPL).
The AC referred to Crush and Haul (criminal) at [11]-[12], [16]-[20], [68]-[70], [73]-[76], [95], [105], [121]-[122], [127], [147], [149], [151], [155], and [178], but concluded that 'one conviction, which did not result in environmental harm and which was found to be of low to medium objective seriousness' was not 'determinative' and did not amount to either the Respondent or Mr Cauchi not being persons of 'good repute' at [70], [76], [147], [151].
Crush and Haul (criminal) at [33]-[43] was relevant to that principal contested issue. The criminal judgment comprised material that was squarely before the AC and had to be considered to the extent that it bore upon the Respondent's fitness and propriety to hold an EPL irrespective of any express argument made in respect of the judgment. In that judgment, representing as it did the most recent judicial action taken against the Respondent (and Mr Cauchi) for committing offences against provisions in the very Act under which it made its application for an EPL, it was not open to the AC to consider some but not other parts of it, the entire judgment had to be considered to the extent that it bore upon the Respondent's fitness and propriety to hold an EPL.

[184]

The AC failed to consider, that is intellectually to engage with or evaluate, Preston CJ's findings about the Respondent having committed an offence contrary to s 48 of the POEO Act recklessly. Instead, the AC placed undue weight on the findings that Mr Cauchi had not acted 'recklessly' and that his offending conduct (as that of the Respondent) was of 'low objective seriousness' in Crush and Haul (criminal) at [17]-[18], [74]-[75] (point 1). In Crush and Haul (class 1) the AC further failed:

[185]

(1) To have regard to the finding in Crush and Haul (criminal) that the Respondent had committed the offence against s 48(2) of the POEO Act recklessly (instead merely 'noting' this fact at [12], [70], [147], [178(1)] in Crush and Haul (class 1)) (point 2);

(2) to refer at all to other adverse findings made in Crush and Haul (criminal) as to the Respondent's claimed knowledge at [78]-[81], [129] in Crush and Haul (criminal) (point 3);

(3) to recognise that it was Mr Cauchi's personal knowledge that was ultimately the basis for the finding that the Respondent had acted 'recklessly' in Crush and Haul (criminal) at [54], [70], [129] (point 4); and

(4) to recognise Mr Cauchi's concession of his failure to take all reasonable steps to prevent or stop the commission of the offence by the Respondent in Crush and Haul (criminal) at [122], [128] (point 5).

[186]

In reply to the Respondent's submission, Crush and Haul (class 1) at [12] did not form a part of the AC's dispositive reasoning but is merely her summary of the background to the matter. Where, as here, a particular matter is given only cursory or formalistic consideration or reference, it may be inferred that it has not in fact been taken into account: Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99; [2011] FCAFC 59 at [44], Stambe v Minister for Health (2019) 270 FCR 173; [2019] FCA 43 at [107]- [113], Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76 at [267]. The Respondent failed to grapple with that evidence instead discounting the fact of the conviction. No finding was made as to how the Respondent's reckless offending was relevant to its fitness and propriety to hold an EPL.

[187]

The AC further failed to have regard to the fact that Preston CJ expressly rejected sworn evidence of Mr Cauchi and made findings that he in fact knew of matters he had denied knowing: Crush and Haul (criminal) at [61], [62], [66]. Such findings were relevant to the assessment of Mr Cauchi's honesty, integrity, and character and thus to the question of whether the Respondent was a fit and proper person.
The rejection of Mr Cauchi's evidence by Preston CJ was expressly raised in the Class 1 proceedings, both with Mr Cauchi directly in cross-examination and by the counsel for the Respondent (see transcript above in [65 ]). These findings which were relevant to the AC's broader consideration of Mr Cauchi's honesty, integrity and character and whether his evidence ought to have been accepted were not engaged with in Crush and Haul (class 1).
The Respondent likewise failed to recognise that the EPA's submissions directed the AC's attention to the relevance of these 'recklessness' findings in this broader context as to fitness and propriety generally, orally as extracted above in [66 ] and in its Amended SOFAC in Reply at par 22 above in [68 ]. The AC did not engage with Preston CJ's disbelief of Mr Cauchi's evidence at [17], [74] or [149] in Crush and Haul (criminal). The AC only set out [62], [66] from Crush and Haul (criminal) in the Crush and Haul (class 1) at [74].

[188]

The AC failed to recognise that Preston CJ had also made a finding that, notwithstanding the absence of that form of harm, the conduct of itself 'was contrary to the legislative objective expressed in the offence under s 48(2) of the POEO Act, impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme': Crush and Haul (criminal) at [13]-[17], [117]-[118]. Harm of that kind is equally significant and serious, and relevant to the issue before the Court: Bankstown Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 at [50]; Environment Protection Authority v Ace Demolition & Excavation Pty (No 2) [2023] NSWLEC 3 at [48]- [50], [54]; Environment Protection Authority v M A Roche Group Pty Ltd [2014] NSWLEC 114 at [19]- [20]; Environment Protection Authority v M A Roche Group Pty Ltd [2015] NSWLEC 29 at [23].
This was a matter mentioned in the EPA's Amended SOFAC in Reply at pars 21 and 22 above in [] and the EPA's written submissions before the AC at par 37 above in []. The Respondent's counsel made submissions before the AC on the matter as extracted above in []. The reference made by the AC at [64] to the objects of the POEO Act was, when read in context, directed to consideration of the meaning and scope of the term fit and proper person. It was not a consideration by the AC of Preston CJ's particular findings as to the harm caused by the Respondent's offending conduct.

[189]

The AC failed to give proper consideration to the fact that Preston CJ had found that the Respondent, when previously applying for an EPL, had taken steps to conceal and avoid the EPA becoming aware of its involvement at the quarry, being communications to which Mr Cauchi and Mrs Cauchi were privy at [23]‑[31], [44], [53]-[54] of Crush and Haul (criminal). Apart from a brief reference to the EPA's submission on this issue in the context of addressing s 83(2)(c) of the POEO Act in Crush and Haul (class 1) at [121], there was no evaluation of it in the AC's dispositive reasoning at [123]-[128]. Again, it would, therefore, be readily inferred that the AC failed to have regard to that matter.
The matter is neither an entirely new point raised on appeal, nor was it put narrowly, in response to the criticism of the Respondent before the AC. The Respondent's counsel directly addressed the relevance of the 2018 application for an EPL before the AC (see above in [65 ]). The EPA expressly identified the matter in par 43(d) of the EPA's written submissions above in [70 ] and in par 15(b) and Annexure A of the EPA's Amended SOFAC in Reply above in [68 ]‑[69 ]. The AC made an error at [125] of Crush and Haul (class 1) by confining consideration of the 2018 EPL application to the findings made with respect to Mrs Cauchi and ignoring Preston CJ's findings as to Mr Cauchi and the Respondent. Notably [125] of the AC's judgment makes no reference to the findings that: (i) Mr Cauchi was copied to the e-mail in which instructions were given to make the EPL application in another entity's name (and subsequent communications); (ii) it was Mr Cauchi's personal knowledge and evidence that was (largely) sought to be relied upon by the Respondent to explain its actions in connection with the previous EPL and activities, being evidence which Preston CJ ultimately rejected, finding that Mr Cauchi's sworn testimony was inconsistent with his conduct and actual knowledge; and (iii) Mr Cauchi was, at the time of those actions, the sole director of the Respondent, and thus responsible for the actions of the company.

[190]

The AC also failed to have regard to the fact that Preston CJ's findings on the likelihood of the Respondent reoffending at [103], [139]-[140] were, in part, premised on the resignation of Mr Cauchi as director of that company in Crush and Haul (criminal). Mr Cauchi has since been reappointed as the sole director of the company. That reappointment (and reversal of the circumstances considered by Preston CJ) ought to have been considered and given weight. The AC failed to have regard to that finding. The likelihood of reoffending was not marginal given the Respondent's counsel drew attention to the change of Mr Cauchi's position in the business and the EPA highlighted this change in its Amended SOFAC in Reply at par 22A (see above in [68 ]) (as well as the Respondent in its SOFAC above in [67 ]). The matter was also identified in the EPA's written submissions before AC extracted above in [70 ] and orally by the EPA as extracted above in [65 ], [66 ]. However the error is characterised, a failure to have regard to evidence or misunderstanding the evidence, is one of law.
Together, these failures to consider relevant aspects of Preston CJ's decision, and resultant failure to give them appropriate weight when considering whether the Respondent was a fit and proper person to hold an EPL, constituted errors of law which in turn led to the AC making a legally unreasonable decision (itself an error of law). Where there has been a failure to give adequate weight to relevant factors of great importance, a decision may be set aside on the basis that it is unreasonable: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend) at 30, 41, 71, ; () at [72].

[191]

The EPA's limbs in respect of Ground 2 are constructed on the shaky premise that a Commissioner must address every argument or piece of evidence advanced by a party (or in this case every potentially relevant paragraph from Crush and Haul (criminal)) in his or her reasons for decision. Nowhere in its submissions does the EPA refer to material before the AC (whether that be its Amended SOFAC in Reply, written submissions, evidence, or oral address) which demonstrates that any of the asserted limbs in Ground 2 were a principal contested issue.
As each of the limbs assert a failure to consider it is convenient to address common grounds upon which each of those limbs would fail before dealing with the further reasons specific to each limb as to why that limb would not be upheld. An absence of reference in the reasons for decision to a certain matter does not of necessity mean that the AC did not consider that matter: Ceerose at [61]-[63] (Payne JA, Ward ACJ agreeing at [1]). There was no obligation upon the AC to address every issue or piece of evidence advanced by the EPA: Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 (Segal) at [44]‑[45], [62], [92], [93], [99], and Village McEvoy at [26].
Moreover, the EPA must establish that the alleged failure to refer to particular paragraphs of Preston CJ's judgment was not only an error of law, but one that was material to the ultimate decision: Design Power Associates Pty Ltd v Willoughby City Council (2005) 148 LGERA 233; [2005] NSWLEC 470 at [34], Hurstville City Council v Goreski [2011] NSWLEC 188 () at [53]-[56], ; at - , [91], and ; at . That is, there must be a realistic possibility of the Commissioner having reached a different decision on the critical 'fit and proper person' test, had express consideration been given to the particular paragraphs of : at 592 (Kiefel CJ, Gageler, Keane and Gleeson JJ), at [32] (Kiefel CJ, Keane and Gleeson JJ). The EPA cannot establish that standard has been met in relation to any of the limbs in this ground.

[192]

The AC did consider the finding made by Preston CJ in Crush and Haul (criminal) that the Respondent committed an offence contrary to s 48 of the POEO Act recklessly. Preston CJ's finding in this regard is referred to in the reasons of the AC at [12], [70], [147], [178].
First, so far as the EPA's objection is predicated upon the AC expressing its reasons as a 'noting' of the matter, the reference at [12] is not so qualified. This paragraph appears in the context of [9]-[45] where the AC set out the relevant history of environmental non-compliance which formed part of the factual matrix which, having regard to Crush and Haul (class 1) as a whole, was plainly taken into account.
Second, the EPA has not demonstrated how the use of an expression of 'note' ('I note' at [70]; 'it is noted that...' at [178(1)]) is not reasonably a statement indicating that the matter was considered. Its plain English meaning is indicative that it was being taken into account.
Third, to the extent that the EPA may demonstrate that there is a linguistic or legal difference to use of expressions employed by the AC variously as 'I note' and 'it is noted', and an expression of taking into account a matter, this amounts to an impermissible fine-toothcomb approach: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 (Brimbella) at 368, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang) at 291, Carstens v Pittwater Council (1999) 111 LGERA 1; [1999] NSWLEC 249 (Carstens) at [76], Bonim Stanmore Pty Ltd v Marrickville Council ; () at [6]-[7], at [28]-[31] and at [53]. It is plain, in the context of the reasons for decision as a whole and the multiple references to Preston CJ's findings of recklessness in , that this matter was considered by the AC.

[193]

The AC had regard at [17], [74], [149] to the rejection by Preston CJ in Crush and Haul (criminal) at [61]-[68] of sworn evidence of Mr Cauchi in the Class 5 proceedings. The AC extracted [62], [66] in which Preston CJ rejects the evidence as a relevant matter. Accordingly, Ground 2(b) must fail.
To the extent that there is a further complaint as to the weight given to other findings of Preston CJ (albeit raised in an assumed context of failure to consider matters which has not been made out), this does not advance a case of error of law.

[194]

The EPA briefly raised the finding of Preston CJ of offending conduct contrary to legislative objectives of the POEO Act in its written submission before the AC (see par 37 above in [70 ]). A review of the transcript of the hearing does not otherwise indicate that Ground 2(c) was advanced by the EPA in oral address. The EPA now seeks to elevate a matter set out in a single sentence of its written submissions to an issue of central relevance in the case giving rise to an inference that the failure of the AC to refer to this matter must mean that it was not considered. Indeed the EPA's submissions now assert that this finding was of central relevance to matters in subss 83(2)(a)-(e) and (g) of the POEO Act, in circumstances where the single sentence reference before the AC was raised only in the context of s 83(2)(a).
This ground fails for the reason that it is abundantly clear that the substance of the relevant offence as found by Preston CJ, including all relevant surrounding circumstances, was considered in detail by the AC. There is no doubt that she was acutely aware of what Preston CJ had found. She was taken to each of the relevant paragraphs.
This specific issue (as distinct from the offence itself) was not a principal or central issue in the case as indicated by the single reference made by the EPA at first instance. Accordingly, there was no obligation upon the AC to address that specific finding made by Preston CJ in her reasons. It is not an available inference that an absence of a reference to that particular matter means that it was not considered.
The AC properly directed herself to the legally relevant matters to be considered in determining the application before her at [46]-[64] and was keenly aware of the requirement to consider the objects of the POEO Act. The objects were explicitly referred to at [64] and reference to Crush and Haul (criminal) at [16] was made. The paragraph immediately preceding [16] in Crush and Haul (criminal) contains the finding in issue that 'Nevertheless, once Crush and Haul exceeded the 30,000 tonnes threshold, its carrying on of the scheduled activity of the land-based extractive activity without holding an environment protection licence did undermine the regulatory scheme of the POEO Act.' Having expressly averted to [16] and otherwise made detailed reference to His Honour's findings, there is an irresistible inference that the matter was considered by the AC albeit expressed at a higher level of abstraction, in other words that 'the applicant's conviction for a breach of s 48(2) of the POEO Act is a matter which I have considered...' (at [69]).

[195]

The submission underlying Ground 2(d) was not framed before the AC as it is now with specific reference to the Respondent and Mr Cauchi. It is entirely new and was not raised before the AC at first instance. It relates to an application made in 2018 for an EPL in the name of the lessee of the Land. It is indicative of an ex post facto dissatisfaction with the forensic decisions made as to the presentation of the EPA's case and ultimately the merits of the decision.
The ambit of the issues in contention is evident when regard is had to the Amended SOFAC in Reply. The Appellant's contention that the Respondent was not a fit and proper person raised two particulars. First, in respect of a consideration of s 83(2)(c) of the POEO Act (see par 15(b) above in [68 ] and the summary of Annexure A above in [69(1)]). Paragraph 15(b) was directed to the conduct of Mrs Louise Cauchi. It was in the context of Mrs Cauchi's conduct that the findings in Crush and Haul (criminal) at [23], [44] were drawn to the attention of the Respondent and the AC. The findings were referred to in respect of s 83(2)(f) in Annexure A of the Amended SOFAC in Reply (see above in [69(2)]) in which no allegation of misleading conduct was made against Mr Cauchi.
The EPA's premise that a sole reference by the AC (to the issue of the application which it had raised before the AC, as opposed to that which it now seeks to advance) at [121] is demonstrably incorrect. Consistent with the manner in which the EPA presented its case, the AC at [125] made further reference to the false information having been made at the instruction of Mrs Cauchi and that 'no evidence was provided that Mr Cauchi had authorised or actioned this conduct.' The issue was further identified by the AC at [154] and the subject of consideration at [155]-[157].
Moreover, to the extent that there is a complaint that the AC's focus was upon the conduct of Mrs Cauchi, again that complaint is without substance. That is because that was the only context in which it was addressed in the EPA's submissions. Moreover, it was not the subject of submissions before the AC. The EPA has not identified any reference in the transcript to the raising of the matter, nor does the EPA identify in its submissions on appeal where this was addressed before the AC. The issue before the AC related to the conduct of Mrs Cauchi as a former director. No issue was raised as to the Respondent more generally or Mr Cauchi.

[196]

The EPA makes a bare assertion as to the great importance of a matter now forming a ground of appeal without identifying in its submissions how it was raised before the AC. This matter was entirely marginal to the issues to be determined by the AC and did not call for express reference in the AC's reasons.
That in the Class 5 proceedings the EPA may have only accepted an unlikelihood of reoffending based on the evidence given by Mr Cauchi that he had left the quarry business is beside the point. Preston CJ's findings are based upon three discrete matters namely (a) insight into offending, (b) genuine remorse, and (c) change of business.
While the EPA in its written submissions before the AC at par 60 above in [70 ] identified one of the grounds upon which Preston CJ found that Mr Cauchi was unlikely to reoffend, that matter was not of any significance. The matter was not otherwise advanced orally before the AC, other than by the Respondent in oral submissions, where [140] in Crush and Haul (criminal) was expressly drawn to the AC's attention (see above in [65 ]), including specifically referring to the matter now said not to have been properly addressed by her. To the extent the EPA makes a complaint as to resultant failures to give the findings of Preston CJ appropriate weight, this does not constitute an error of law.

[197]

This appeal ground alleges in five particulars inadequacies submitted to be errors of law in how the AC considered Crush and Haul (criminal). This ground adopts an impermissible fine-toothcomb approach to the AC's judgment (see Brimbella and many subsequent cases) and fails to consider the extensive judgment fairly as a whole. Relevant parts of the judgment are extracted above where aspects of the decision in Crush and Haul (criminal) are referred to on multiple occasions by the AC in her judgment at [11]-[12], [16]-[20], [64], [68]‑[70], [73]-[76], [95], [105], [121]-[122], [127], [147], [149], [151], [155], [173], [175], [178]. The AC was clearly aware of the judgment and referred to it expressly in her reasoning on numerous occasions in the paragraphs identified above including specifically in relation to the Respondent company at [11]-[12] and in relation to the sole director Mr Luke Cauchi at [16]-[20]. No criticism is made of the parts of Crush and Haul (criminal) that are referred to. The criticisms are essentially that omissions occurred in failing to refer to particular paragraphs, or insufficient weight was given to parts of the judgment.
In the absence of a statute indicating how weight is to be attributed, attribution of weight to a relevant matter is not reviewable on appeal as an error of law: Peko-Wallsend per Mason J at 41. The AC's finding at [70], [76], [147], [151] to the effect that one conviction was not determinative of whether Mr Cauchi the sole director was of good repute is not reviewable in this appeal. That complaint is really about the merits of the AC's finding.
While it can be accepted that the principal contested issue was whether the Respondent was a fit and proper person that does not render every small detail of the EPA's case a matter which must be expressly considered by the AC. As identified in the principles set out in [24 ] above, the AC was not required to deal with every argument raised and every possibility referred to, Segal at [71] citing Comcare at [58].

[198]

Ground 2(a) in the Amended Summons Commencing Appeal states:

[199]

2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely:

[200]

a. the finding made by Preston CJ in Environment Protection Authority v Crush and Haul Pty Ltd [2022] NSWLEC 113 that Crush and Haul committed an offence contrary section 48 of the POEO Act recklessly;

[201]

Ground 2(a) alleges that the AC failed to consider relevant material central to her task being findings in Crush and Haul (criminal) that the Respondent (the company) acted recklessly. The EPA raised five sub-particulars for how this error arose, set out in [74 ] above.
In relation to point 2, the first hurdle the EPA faces is that the AC referred expressly to the finding of the Respondent's recklessness in Crush and Haul criminal at [12] in her judgment, extracting paragraphs [81]-[82]. This does not suggest a failure to consider that finding. The parties referred to [12], [70], [178], [147] of the AC's judgment extracted above in [64 ]. The EPA's focus was on [12]. As already stated the judgment must be read as a whole and doing so suggests the AC did consider the finding of recklessness in relation to the Respondent in Crush and Haul (criminal).
In point 1 the AC is criticised as placing undue weight on findings in Crush and Haul (criminal) that Mr Cauchi had not acted recklessly and that his offending conduct was of low objective seriousness as was indeed found in Crush and Haul (criminal). The AC identifies both findings in her judgment. Attribution of weight in the statutory scheme in s 83(2) is a matter for the AC and this is really an impermissible complaint about the merits of her decision.
Point 3 is difficult to follow. It states that the AC failed to refer to other adverse findings made in Crush and Haul (criminal) about the Respondent's claimed knowledge, citing [78]-[81], [129]. Preston CJ rejected the Respondent's submission that it believed that it had not exceeded the 30,000 tonne threshold. Preston CJ found that the Respondent was aware that it exceeded the 30,000 tonnes threshold that would require obtaining an EPL (at [78]). Preston CJ found beyond reasonable doubt that the Respondent committed the offence against s 48(2) of the POEO Act recklessly. These findings were expressly considered by the AC in Crush and Haul (class 1).
Point 4 alleges a failure to recognise that Mr Cauchi's personal knowledge was the basis for the finding that the Respondent had acted recklessly in Once again the nature of the error alleged is not clear in that Mr Cauchi's role in relation to the Respondent's offence the subject of was considered by the AC. The criticism appeared to be about the weight the AC attributed, which is not a reviewable error.

[202]

Ground 2(b) in the Amended Summons Commencing Appeal states:

[203]

2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely:

...

[204]

b. the rejection by Preston CJ of evidence given by the director of Crush and Haul, Luke Cauchi, in that proceeding.

[205]

The rejection by Preston CJ of Mr Cauchi's sworn evidence was identified in the EPA's Amended SOFAC in Reply at par 22 extracted above in [68 ]. The EPA's counsel cross-examined Mr Cauchi on Preston CJ's rejection of his evidence as identified in the transcript extracted above in [65 ]. Mr Cauchi recalled that his evidence was not accepted regarding the threshold at which the Respondent could quarry. The Respondent's counsel mentioned Preston CJ's finding in closing submissions (see above in [65 ]). The EPA's counsel made submissions about Preston CJ's finding in relation to whether Mr Cauchi acted recklessly.
The AC's judgment at [17], [74] refers expressly to the finding of Preston CJ rejecting Mr Cauchi's evidence and at [149] expressly referring to the judgment finding as part of weighing up Mr Cauchi's evidence in the Class 1 appeal.
The AC was not required to consider every argument raised (Comcare at [58]) or a submission made in a way that did not call for reasoned consideration, see above in [9 ]-[10 ]. The finding was expressly referred to as part of the AC's reasoning process. Finely tuned criticism of the term 'noting' at [149] of Crush and Haul (class 1) is not permissible in this appeal. The EPA has not established that the AC failed to consider relevant material in her judgment.

[206]

Ground 2(c) in the Amended Summons Commencing Appeal states:

[207]

2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely:

...

[208]

c. the finding by Preston CJ that the offending conduct "was contrary to the legislative objective expressed in the offence under s 48(2) of the POEO Act, impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme":

...

[209]

No reference in the AC's judgment is made to Crush and Haul (criminal) at [117]-[118] that the Respondent's offending conduct impeded the achievement of the objects of the POEO Act and undermined the integrity of the regulatory scheme. Ground 2(c) alleges this constitutes a failure to consider relevant material central to the issue to be determined. The Respondent submitted the AC does refer to the objects of the POEO Act at [64] of Crush and Haul (class 1).
Before the AC the EPA identified [16]-[17] of Crush and Haul (criminal) in pars 21 and 22 of its Amended SOFAC in Reply extracted above in [68 ] and par 37 of its written submissions before the AC above in [70 ]. Paragraph 37 of the EPA's written submissions before the AC referred to this finding in the context of s 83(2)(a).
As the Respondent identified, the EPA submits in this appeal this finding is relevant to additional subss 83(2)(b)-(e) and (g). To the extent in this appeal the EPA relies on more subss of s 83(2) in order to underline the importance of the finding, that is impermissible recasting of the EPA's case.
I agree with the Respondent that the EPA has not demonstrated that this specific particular was a principal or central issue in the case presented to the AC.
Adequacy of reasons does not require that every argument made by a party must be referred to: Comcare at [58] cited in Segal at [71].
I accept the Respondent's submissions above in [96 ] that in reading the judgment as a whole the AC was well aware of Crush and Haul (criminal) and considered it in detail as part of her reasoning. I do not consider an error of law has been established. If it had the EPA has not demonstrated how that could be material in light of the case presented by the EPA to the AC. The EPA is unsuccessful on Ground 2(c).

[210]

Ground 2(d) in the Amended Summons Commencing Appeal states:

[211]

2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely:

[212]

...

d. the finding by Preston CJ that Crush and Haul (with Mr Luke Cauchi's knowledge) had, in connection with a previous application for an EPL, taken steps to conceal and avoid the regulator becoming aware of its involvement at the quarry; and

...

[213]

Ground 2(d) alleges the AC failed to consider the finding that the Respondent, said to be with Mr Cauchi's knowledge, concealed information in a previous application for an EPL. It is necessary to consider if this precise issue as expressed on appeal was presented to the AC by the EPA in order to consider this ground.
The matter of the misleading application was addressed in the EPA's Amended SOFAC in Reply at par 15(b) extracted above in [68 ], Annexure A of the Amended SOFAC in Reply above in [69 ], and the EPA's written submissions at par 43(d) extracted above in [70 ] to the effect that instructions were given by Mrs Cauchi to conceal information. No reference was made by the EPA to the conduct of Mr Cauchi in this context.
Before the AC the Respondent's counsel briefly addressed the 2018 application for an EPL extracted in the transcript above in [65 ] stating 'This is not a breach of any environmental protection legislation and frankly, hardly a serious matter. It's not the basis of any particular finding and in any event, it was [the] conduct of Louise Cauchi, [it] had nothing to do with Mr Cauchi.' That a misleading application for an EPL was engineered by Mrs Cauchi (Mr Cauchi's mother) on behalf of the Respondent in 2018 identified in Crush and Haul (criminal) at [23], [44] is expressly identified in Crush and Haul (class 1) at [121]-[122], extracted above in [64 ]. The AC's judgment at [121(4)] refers to the EPA's Amended SOFAC in Reply referring to Mrs Cauchi giving someone instructions to provide misleading information. At [125] in Crush and Haul (class 1) the AC stated 'no evidence was provided that Mr Luke Cauchi had authorised or actioned this conduct' in relation to the licence application. The AC also identified at [154] the misleading application in the context of determining whether Mrs Cauchi was of good repute, which the AC ultimately considered she did not need to resolve for reasons given at [155]-[157] of . That is the 'lens' for the AC's consideration of the misleading application and also my consideration in this appeal.

[214]

Ground 2(e) in the Amended Summons Commencing Appeal states:

[215]

2. The Acting Commissioner failed to consider relevant material which was central to the task of determining whether Crush and Haul is a fit and proper person to hold an EPL, namely:

[216]

...

e. the change in circumstances of Crush and Haul since the decision of Preston CJ, namely the reappointment of Mr Luke Cauchi as the sole director of Crush and Haul in circumstances where Preston CJ had placed weight on Mr Cauchi's prior resignation from that position.

[217]

Ground 2(e) alleges a failure to refer to the re-offending finding of Preston CJ in Crush and Haul (criminal) at [139]-[140] given Mr Cauchi's reappointment as sole director of the Respondent since that decision.
Crush and Haul (criminal) at [103], [139]-[140] stated:

[218]

Crush and Haul's sentence

...

Likelihood of reoffending

...

[103] The EPA accepted that Mr Cauchi was unlikely to reoffend, as he has resigned as a director of Crush and Haul and now operates a new business in the civil and transport industry. However, the EPA submitted that this does not mean that Crush and Haul is unlikely to reoffend. Mr Cauchi has been replaced by Mrs Cauchi as the sole director of Crush and Haul. Mrs Cauchi has a record of prior convictions. Companies of which Mrs Cauchi has been a director have been convicted for offences against s 48(2) of the POEO Act and Mrs Cauchi has also been convicted as a director of those companies which committed executive liability offences. These involve convictions for offences under the POEO Act in relation to exceedances of the extraction limit under an environment protection licence at Corindi Quarry (Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015] NSWLEC 78) and a conviction for breach of s 48(2) of the POEO Act by another company at a different quarry (Environment Protection Authority v Rixa Quarries (No 2) Pty Ltd (No 2) [2017] NSWLEC 93).

Mr Cauchi's sentence

...

Likelihood of reoffending

[139] Mr Cauchi resigned as a director of Crush and Haul in February 2022 and now runs a different business in the civil and transport industry in the Sydney region. The EPA accepted that Mr Cauchi is unlikely to reoffend.

[140] In circumstances where Mr Cauchi has insight into his offending in this case, is genuinely remorseful for offending and has changed his business, I find that he is unlikely to reoffend.

...

[219]

How the EPA presented its case before AC must be considered. The Respondent in its Amended SOFAC extracted above in [67 ] identified that Mr Cauchi had been reappointed director of the Respondent and that was also clear from the transcript before the AC, extracted above in [65 ]-[66 ]. The EPA in its Amended SOFAC in Reply in Pt A 'Facts' par 22A and Pt B 'Contentions' par 7(b)(ii) extracted above in [68 ] referred to Crush and Haul (criminal) at [139] to provide context for why the EPA accepted that the Respondent was unlikely to reoffend in the criminal proceedings, as Mr Cauchi had left the quarrying business.
The EPA in its written submissions before the AC submitted that the finding in Crush and Haul (criminal) at [103] that the Respondent should be less likely to offend was premised on Mr Cauchi no longer being a director of the Respondent, and identified that Mr Cauchi was presently the director of the Respondent.
Mr Cauchi was examined in chief by the Respondent's counsel and cross-examined by the EPA's counsel on his reappointment as director of the Respondent (see above in [65 ]). The counsel of the Respondent and the EPA respectively made submissions on Crush and Haul (criminal) at [139] (see above in [65 ], [66 ]).
The AC's judgment makes no reference to the finding of Mr Cauchi's unlikelihood of reoffending in Crush and Haul (criminal) at [139], [140]. The AC discusses at [95] Mrs Cauchi's likelihood of reoffending. The AC had regard at [125] to Mr Cauchi being the sole director of the Respondent.
To the extent the EPA now pursues a different case to that before the AC as the Respondent submits, that approach is impermissible, see above in [].

[220]

Ground 3: failure to give proper weight to the findings of Crush and Haul (criminal)

[221]

The Amended Summons Commencing Appeal identified the following appeal ground:

[222]

3. The weight given by the Acting Commissioner to Preston CJ having convicted Crush and Haul and Luke Cauchi of offence contrary to section 48 of the POEO Act, and to the reasons given by Preston CJ in that decision, was so inadequate as to the result in a legally unreasonable decision (at [67]-[78]).

[223]

The EPA submitted that Ground 3 alleges legal unreasonableness that includes failure to consider claims and material, making of illogical/ irrational findings and failure to give adequate weight to relevant factors of significance. This appears to overlap with Ground 2.

[224]

It is also apparent that the AC minimised the significance of the earlier convictions and their relevance to the question of fitness and propriety at [70], [76], [147], [151] and placed undue weight on the absence of further convictions and the effluxion of time at [77], [127]-[128], [130]-[131], [178]. For example, on two occasions at [70], [147], the AC 'note[d]' that the Respondent had been found to be a reckless offender, but then downplayed its significance by observing that it was only one conviction which did not result in actual environmental damage and that it would not, itself, lead to the conclusion that the Respondent was not a fit and proper person to hold an EPL. The error in the AC's approach was to place so little weight on the convictions of the Respondent and Mr Cauchi so as to result in a legally unreasonable decision. That error was compounded by the errors in Grounds 1, 2 and 4 and the unfounded weight placed on Mr Cauchi's testimony at [77], [103]-[109], [149]-[150].
The convictions and conduct considered by Preston CJ represented the most recent and serious conduct of both the Respondent and Mr Cauchi, being conduct contrary to the very Act under which the Respondent had made its application for an EPL. The convictions furthermore concerned conduct directly relevant to the type of application before the AC, that is, they arose from contraventions of the EPL regime, in circumstances where the Respondent had sought to conceal from the EPA the fact of its involvement at the quarry. The fact that the Respondent and its then (and now current) sole director had previously been found to contravene the POEO Act, to have done so recklessly (in the case of the company), and to have taken steps to conceal their involvement in connection with a prior application for an EPL, ought to have been given substantial weight. The AC's failure to do so was legally unreasonable.
It has long been held that, where, as here, there has been a failure by a decision-maker to give adequate weight to relevant factors of great importance (such as the judgment of Preston CJ), a decision may be set aside on the basis that it is unreasonable (being an error of law): Peko-Wallsend at 30, 41, 71, Li at [72]. That such an error was made here is apparent from the reasons of the AC, in the context of the submissions and material placed before her, and does not require devolving into a review of the decision on its merits. The fact that s 83 of the POEO Act does not itself dictate how the various factors are to be weighed does not prevent a finding that there has, in the circumstances, been a legally unreasonable decision.

[225]

A complaint about the weight afforded to permissible considerations does not amount to an error of law: Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7 at [133] citing Peko-Wallsend at 40-41 (Mason J) and Attorney General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [120]- [122], Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [173]. Even in the judicial review context, a court 'should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits': Peko-Wallsend at 42 (Mason J).
The matters set out in s 83 are discretionary with no stipulation as to the weight of any such discretionary matter, with the exception of s 83(4) which permits certain matters to be disregarded. Accordingly, the weight to be given to other findings of Preston CJ (which the EPA complains were given undue weight) was a matter for the AC. Those matters were permissible relevant matters for the AC to take into consideration in the exercise of her discretion in determining whether to grant an EPL.
Put simply, the weight to be afforded to the various considerations was a matter for the AC alone to determine, and no error (let alone error of law) has been demonstrated in the careful and considered fashion she dealt with the earlier findings made by Preston CJ.

[226]

Section 83 of the POEO Act identifies matters which may be considered in determining whether a person is fit and proper. As agreed by the parties no 'hierarchy' for the consideration of these matters is specified in that section. In other words the matter of weight to be attributed to them lies with the AC under the statutory scheme in the POEO Act. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: Hoy at [8] citing Peko-Wallsend at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]‑[12].
The EPA's submissions are a complaint about the merits of the AC's consideration of s 83 factors, for example 'ought to have been given substantial weight' is an impermissible submission about the merits of the AC's finding. I agree with the Respondent that Crush and Haul (class 1) shows a careful and balanced consideration of matters.
As already considered above in [117 ], an impermissible fine-toothcomb approach is evident in the EPA's focus on the AC's use of the word 'noted' on two occasions.
The AC's judgment must be read fairly as a whole. As already considered exhaustively in Ground 2 the AC's consideration of Crush and Haul (criminal) was substantial and there is express reference to it in numerous paragraphs demonstrating extensive consideration of it.

[227]

Ground 1: failure to apply correct statutory test

[228]

Ground 1 raises the question whether the AC applied the correct legal test established by s 45(f) and s 83(2) of the POEO Act to determine if the Respondent is a fit and proper person.
The Amended Summons Commencing Appeal identified the following appeal ground:

[229]

1. In deciding whether the respondent (Crush and Haul) is "a fit and proper person" within the meaning of section 45(f) of the Protection of the Environment Operations Act 1991 (NSW) (POEO Act), the Acting Commissioner did not apply the correct test, in that, instead of asking whether she was satisfied that Crush and Haul is a fit and proper person to hold an environment protection licence (EPL), she asked herself whether certain of the matters on which the appellant relied meant that Crush and Haul is not a fit and proper person (at [76], [123], [128], [131], [145]-[147], [151]-[153]).

[230]

The EPA submits that the AC incorrectly inverted the test by not using positive language in considering Mr Cauchi's character. The parties agreed that the AC correctly accepted that she was required to reach a state of actual satisfaction that the Respondent was a fit and proper person at [64] in order to be satisfied that it should be granted an EPL.
Some of the numerous paragraphs of the judgment referred to by the parties have been extracted and marked to identify where it is said that the legal test has been framed positively and negatively according to the parties:

[231]

1. Introduction

[POSITIVE] [7] The parties agreed that the sole matter in dispute in this case was whether the applicant is a "fit and proper person" under s 45(f) of the POEO Act to hold the Licence applied for.

...

4. Statutory Framework

...

[POSITIVE] [49] A critical issue in this matter is whether the applicant is a "fit and proper person" for the purpose of s 45(f) of the POEO Act. The "Note" to s 45(f) relevantly states "see section 83 for provisions relating to the determination of whether a person is a fit and proper person for the purposes of this section". Section 83 of the POEO Act provides:

...

5. Consideration of meaning and scope of term "fit and proper person" under the Protection of the Environment Operation Act

...

[POSITIVE] [63] In relation to the respondent's argument that I must reach a state of actual persuasion and satisfaction that the applicant is a fit and proper person in accordance with the principles set out in Makasa, I note that Makasa was considering a different legislative regime with different language to that in s 45 of the POEO Act. I agree with the applicant's submission that the statutory regime being considered in Makasa imposed an onus to satisfy the Minister of the character test whereas s 45 of the POEO Act requires consideration of various factors as are of relevance (which includes whether the applicant is a fit and proper person).

[POSITIVE] [64] However, the objects of the POEO Act include (at s 3(a)), "to protect, restore and enhance the quality of the environment". The licensing regime set out in Chapter 3 of the POEO Act seeks to regulate scheduled activities which "are by their nature activities that are either inherently or when conducted in a certain manner or extent likely to cause harm to the environment" (EPA v C&H; EPA v Cauchi at [16]). I therefore agree with the respondent's submission that in order to grant a Licence to the applicant in this matter, I must be satisfied that the applicant is a "fit and proper person" for the purposes of s 45(f) of the POEO Act.

6. Consideration of whether the applicant is a "fit and proper person" under the Protection of the Environment Operations Act

[232]

(1) the applicant has only one prior conviction under s 48(2) of the POEO Act where no environmental harm was caused and was deemed to be of low to medium objective seriousness (although it is noted that the offence was found by Preston CJ to have been carried out recklessly);

(2) the current sole director, Mr Luke Cauchi, has only one prior conviction, being an executive liability offence under s 169A(2) of the POEO Act connected to the offence for which the applicant was convicted as set out above. This offence was found by Preston CJ to not have been carried out recklessly and to be of low objective seriousness. His Honour similarly found the offence to have caused no environmental harm;

(3) I find Mr Luke Cauchi to be honest and genuine in his remorse for his and the applicant's 2022 convictions;

(4) I have placed material weight on Mr Luke Cauchi's evidence that he will have "sole control" of the applicant going forward, is aware of his obligations in the role of director, and wishes to move forward with a law abiding company;

(5) the former director, Mrs Louise Cauchi has a more concerning compliance history, however, is no longer a director of the applicant and there was no cogent evidence provided which refuted Mr Luke Cauchi's affidavit evidence and testimony that he will be in control of the applicant and its activities going forward;

[NEGATIVE] (6) the respondent did not contend in the hearing that the activities sought to be licensed will not be managed and in the hands of a technically competent person. In the absence of any cogent evidence to the contrary, I have accepted that the activities sought to be licensed will be managed and in the hands of a technically competent and able person;

[NEGATIVE] (7) the respondent did not contend in the hearing that the applicant does not have the financial capacity to comply with the obligations proposed to be imposed under the licence. In the absence of any evidence to the contrary, I have accepted that the applicant has the financial capacity to comply with the obligations proposed to be imposed under the licence; and

(8) the applicant's outstanding costs owed to the respondent are of little weight as the:

[233]

(a) 2016 costs were disputed by the applicant and not ultimately pursued by the respondent (on evidence before the Court); and

(b) outstanding costs from the EPA v Crush and Haul; EPA v Cauchi litigation is only six months old and there was undisputed evidence before the Court from Mr Luke Cauchi that these costs will be paid in the near future.

[234]

8. Other matters for consideration under s 45 of Protection of the Environment Operations Act

[POSITIVE] [179] On the basis that I have determined that the applicant is a "fit and proper person" for the purposes of s 45(f) of the POEO Act, it is necessary to consider the other relevant matters for consideration set out in s 45. As set out previously, in exercising its functions under the POEO Act, the appropriate regulatory authority (or in this case, the Court) is required to take into consideration such of the matters set out in s 45 as are of relevance.

...

Relevant objects of the Protection of the Environment Operations Act

...

[POSITIVE] [200] On the basis that I have determined that the applicant is a fit and proper person under s 45(f) of the POEO Act, and all other matters listed for consideration as are of relevance under s 45 of the POEO Act are not disputed by the parties, I do not consider the granting of the Licence to be contrary to any of the stated objectives in s 3 or inconsistent with any of the matters for consideration that are of relevance under s 45 of the POEO Act.

...

[235]

The parties referred to sections from the transcript of the Class 1 hearing on 13 June 2023 extracted below:

[236]

[p 7(44)-(49)]

BEASLEY: ... Also para 17 is not read and to the extent that the facts and contentions in reply might refer to s 83(2)(m), that's no longer relied on by the respondent, that subparagraph. I think that's all the material for the respondent.

[237]

Sections from the transcript of the Class 1 hearing on 14 June 2023 referred to by the parties are extracted below:

[238]

[p 5(5)-(25)]

BEASLEY: Commissioner, I'll come in a moment to what we say is a particular error in the applicant's written submissions. There's a theme in the applicant's case and it's almost along these lines. It's as if there's a notion that the EPA has some burden to satisfy you that the applicant is not a fit and proper person to be issued with an environmental protection licence. I can prove that and I'll tell you why but that's not the task I have or the EPA has and that's not the determination you have to make.

In exercising your functions under what I'll call the Operations Act, you have to determine whether the applicant is fit and proper. In other words, and I'll come to cases on this, you have to be "actually persuaded" that they are fit and proper. You have to, in a legally permissible way, reach a state of satisfaction that the applicant is fit and proper to be issued with an EPL and, as I've said, and I'll come to cases on this, that has to be within the bounds of legally reasonable decision making.

There was another theme in the applicant's submissions which was along these lines, that what's germane to sentencing considerations and principles for environmental offences is somehow directly applicable to the administrative law task that you have in determining whether the applicant is fit and proper to be issued with an EPL. That's not correct. Your task is different.

[239]

The EPA submitted that contrary to the test accepted by the AC at [64], the AC then approached her statutory task on the basis that, subject only to the EPA establishing to the contrary, she could assume (and therefore find) that the Respondent was a fit and proper person as illustrated at [147], [153] (see above in [170 ]). She did not require positive evidence to establish that fact. The AC concluded at [147] that the Respondent is a person of good repute because the conviction and penalty notices did not render the Respondent not being of good repute. No reference or finding was made as to other evidence demonstrating that the Respondent was, in fact, of good repute. Such an approach not only placed a burden of proof on the EPA but also inverted the statutory question posed by the POEO Act.
The same approach is evident in the AC's reasoning at [70], [76], [123][124], [128], [131]. This deficiency and inversion in reasoning is not cured by the fact that the AC elsewhere correctly expressed the statutory test at [64], [177], [179], [200] (see above in [170 ]). The 'summary' of findings as set out at [178] confirm that the AC (wrongly) focused on whether the EPA had negatived the assumption that the Respondent was a fit and proper person, rather than whether the Respondent had positively satisfied the AC that it was fit and proper (see above in [170 ]). This failure to apply the correct statutory test is a further error of law in the decision.
In reply submissions, the EPA pointed out the Respondent conceded the AC referred to the statutory test in negative terms. The AC was expressly cautioned against such an approach in the submission before her (see above in [172 ]). Contrary to the Respondent's submission that the EPA has selected examples of the statutory test in negative terms, the EPA has identified passages in the dispositive reasoning applied before the AC excluding [177] (see above in [170 ]). At [177] the test is expressed in terms of a positive state of satisfaction. However, it is infected by the AC's earlier, erroneous findings.

[240]

The Respondent rejected the assertion that the AC misapplied the statutory test, to the effect that notwithstanding the proper identification of the statutory task the AC proceeded to disregard that task. When regard is had to the reasons for decision as a whole it is evident that the AC understood that she was required to reach a positive state of satisfaction that the Respondent is a fit and proper person.
The Respondent's position is that to the extent the AC referred to the test in a negative way, the examples relied upon by the EPA are not demonstrative of an incorrect legal test, but rather are just a selective trawling through the reasons of the AC with an eye focused upon asserting an error, and without regard to the context of the decision as a whole. That is an impermissible approach: Brimbella at 368, Wu Shan Liang at 291, Carstens at [76], Bonim at [6]-[7], Village McEvoy at [28]-[31] and Goreski at [53].
The test was identified in its positive form at [7], [49], [63], [64], [69], [71], [85], [103], [112], [176], [177], [179], [200]. Accordingly, this ground fails.
It is an overreach to suggest that two of the eight matters summarised at [178] is indicative of the AC being focused upon the wrong test. To the extent that the EPA submitted the AC was wrong at [178] to refer to the EPA having not contended at the hearing that the activities sought to be licensed would be managed by a technically competent person and that the Respondent did not contend that it had financial capacity, those matters should be understood in the context that they were initially raised and then expressly abandoned by the EPA above in [173 ]-[174 ].

[241]

The parties agree the correct legal test was identified by the AC at [64], and elsewhere. Some of the paragraphs of the judgment referred to by the parties are extracted above to provide context for the parties' submissions. The extract of the transcript in which the EPA's counsel identified concern that the Respondent's (then the Applicant) submissions incorrectly identified the test is also extracted above in [172 ]. This transcript demonstrates that the AC was alerted to this issue.
'Negative' language according to the EPA appears at [70], [76], [123]-[124], [128], [131], [147], [151]-[153], [178] meaning paragraphs where the AC appeared to place an onus on the EPA to demonstrate a matter to apply to the consideration of s 83 rather than an onus falling on the Applicant to demonstrate a matter. I note that the language in [153] is in fact expressed positively. The EPA submitted these showed examples of dispositive reasoning. 'Positive' language appears at [7], [49], [63], [64], [69], [71], [85], [103], [112], [176], [177], [179], [200]. The AC's conclusive paragraph at [177] is expressed in positive language. While two sub-paragraphs of [178] are criticised as containing negative language, the other six subsections are not criticised.
The judgment must be read fairly and as a whole and in light of the case presented to the AC. When all of the paragraphs relied on by the parties are considered in this light, no error is demonstrated. I agree with and adopt the Respondent's submissions above in [177 ] referring to Brimbella, Wu Shan Liang, Carstens, Bonim, Village McEvoy and Goreski.
The Respondent's submissions in [179 ] above concerning the unwarranted criticism of [178] of the AC's judgment are accepted given the context identified. The summary paragraph in [178] of the judgment clearly show that the AC was aware of her task.
The EPA is unsuccessful on Ground 1.
As the EPA is unsuccessful on all grounds the s 56A appeal will be dismissed.

[242]

The usual approach in s 56A appeals under the LEC Act is that costs follow the event. The EPA has been unsuccessful and it should pay the costs of the Respondent.

[243]

(1) Appeal no. 2023/260897 is dismissed.

(2) The Appellant is to pay the Respondent's costs of the appeal as agreed or assessed.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (243 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (88)