Environment Protection Authority v Hughes; Environment Protection Authority v ANT Civil Pty Ltd (No 2)

Cases Cited: Environment Protection Authority v Hughes [2025] NSWLEC 115
R v Alexandroaia (1995) 81 A Crim R 286
Slotboom v R [2013] NSWCCA 18

Category: Procedural rulings

Parties: Environment Protection Authority (Prosecutor) (Respondent on the motion)
Andrew Lloyd Hughes (Defendant in proceedings 2023/297653, 2023/297654, 2023/297655, 2023/297656, 2023/297657) (Applicant on the motion)
ANT Civil Pty Ltd (Defendant in proceeding 2023/297689) (Applicant on the motion)

Representation: Counsel:
A McGrath (Prosecutor) (Respondent on the motion)
G Foster (Defendant) (Applicant on the motion)
Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor) (Respondent on the motion)
Zali Burrows Law (Defendant) (Applicant on the motion)

File Number(s): 2023/297653, 2023/297654, 2023/297655, 2023/297656, 2023/297657, 2023/297689

Publication restriction: Nil

EX TEMPORE JUDGMENT

1. These proceedings concern six matters before the Court, being five charges brought against Andrew Lloyd Hughes (First Defendant) under the Protection of the Environment Operations Act 1997 (NSW) (t****he Act), and one charge brought pursuant to the Act against ANT Civil Pty Ltd (Second Defendant) (the Proceedings). The charges all relate to alleged pollution to land, with the alleged pollutant being “more than 10 tonnes” of “asbestos waste” within the meaning of cl 109 of the Protection of the Environment Operations (General) Regulation 2009, cl 133 of the Protection of the Environment Operations (General) Regulation 2021*,* and cl 50 Sch 1 of the Act. The Prosecutor for each charge is the Environment Protection Authority of New South Wales.

2. The Proceedings have been listed for a 20-day hearing that was due to commence on 7 October 2025. However, on Friday 3 October 2025, the Defendants filed a motion seeking to have the evidence obtained from two search warrants executed by the Prosecutor in June 2022 excluded. After a hearing, I delivered judgment dismissing that motion: Environment Protection Authority v Hughes [2025] NSWLEC 115. The hearing then began after the dismissal of that motion.

3. On the eighth day of the hearing, the Defendants sought leave to file in court a notice of motion dated 22 October 2025, seeking to have the Proceedings adjourned for “no less than 1 week”. That motion was subsequently amended (amended motion), and the orders sought were:

“1. Pursuant to section 40 Criminal Procedure Act 1986, an order for the adjournment of the case before Beasley J to 27 October 2025.

2. In the alternative that the evidence of Colin McKay be adjourned to not before 27 October 2025.”

4. An affidavit dated 22 October 2022 from the Defendants’ instructing solicitor, Ms Zali Burrows (Burrows affidavit), was handed up with the amended motion in support of it.

5. Prior to this, on day seven of the hearing, an oral application had been made on the Defendants’ behalf for an adjournment for an unspecified period, but for “several weeks”: T302.23-25. I refused that oral application, because nothing was put to me in support of it that persuaded me that there was a proper basis for granting such an adjournment, or that it was in the interests of justice that I do so. The amended motion was a more formal iteration of the oral application made for an adjournment on 21 October 2025.

6. While the amended motion seeks primarily an order from the Court to stand over the hearing until Monday 27 October 2025, it was clear from Ms Burrows’ affidavit, and the submissions made to me by Mr Foster, Counsel for the Defendants, that the main purpose of the adjournment was to enable an expert retained by the Defendants in these Proceedings, Mr N Israel, to:

(a) read documents and affidavit evidence served by the Prosecutor more than a year ago, but which he had not yet read or considered; and (b) further consider a supplementary report of the Prosecutor’s expert witness, Mr C McKay, dated 27 August 2025 (McKay Supplementary Report).

7. Having further considered the above material and the McKay Supplementary Report, it is proposed by the Defendants that Mr Israel prepare a further report which the Defendants would then seek to rely on in the Proceedings.

8. Ultimately, the Prosecutor, represented by Mr A McGrath of Counsel, indicated that the amended motion was in essence not opposed, provided any further report of Mr Israel was served by 9pm on Sunday 26 October 2025, and the hearing stood over until Wednesday 29 October 2025, to enable time for any further report of Mr Israel’s to be considered.

9. As the amended motion was on that basis not opposed, I granted leave for it to be filed in Court, and the affidavit of Ms Burrows of 22 October 2025 was read without objection, with the one caveat raised by Mr McGrath that the Prosecutor had not yet had time to check all of the assertions of fact in the affidavit (a matter that was ultimately not relevant to the resolution of the amended motion). Annexure C of the Burrows affidavit, which concerns some medical information relating to Mr Israel, became confidential Exhibit D1 in lieu of being an annexure.

10. In summary, the Burrows affidavit attests to the following matters:

(a) Mr Israel, who is a mechanical and environmental engineer, is the author of an expert report the Defendants have filed and served dated 25 November 2024 (Israel November 2024 Report); (b) Mr Israel did not consider all of the evidence served by the Prosecutor for the purpose of expressing the opinions he has in his report; (c) it appears it was initially difficult for Mr Israel to access all of the Prosecutor’s evidence that was supplied in electronic form in mid-2024 (although a great deal of evidence was also served by the Prosecutor before this date). He subsequently, however, finalised the Israel November 2024 Report, but without considering all of the evidence the Prosecutor had served; (d) Mr Israel now wishes to consider the evidence of the Prosecutor that he has not yet read, for the purposes of preparing a further expert report that the Defendants will seek to rely on; (e) Mr Israel also wishes to include in this further report a response to parts of the McKay Supplementary Report; and (f) Mr Israel has recently had some health issues that are still being investigated.

11. What the Burrows affidavit does not do is identify the following:

(a) what material or evidence Mr Israel has not previously considered that he now feels he needs to for the purposes of a further report that would be relevant to the issues in the Proceedings; or (b) what issues relevant to the Proceedings he wishes to address in a further report that are responsive to the McKay Supplementary Report.

12. There is also nothing in the Burrows affidavit that addresses why it would be in the interests of justice to make orders of the kind sort in the amended motion, or why such orders should not be refused in light of the case management regime that forms Division 2A of Part 5 of the C**riminal Procedure Act 1986 (NSW) (CP Act): see R v Alexandroaia (1995) 81 A Crim R 286 at p 291; Slotboom v R [2013] NSWCCA 18 at [36].

13. Even though the amended motion was in essence not opposed, I considered I should not make orders of the kind sought unless I was persuaded that there was a proper basis for doing so, including that it was in the interests of justice.

14. The oral submissions for the Defendants initially did not assist me very much. However, on the morning following the amended motion being filed, it became clear enough from Mr Foster’s submissions that the two reports that have been prepared by Mr McKay that the Prosecutor wishes to rely on relate to, inter alia, the alleged presence of asbestos waste on the land owned by the First Defendant, and the volume of any such waste. The Israel November 2024 Report provides Mr Israel’s opinion concerning certain practices of the Prosecutor; the sampling of materials excavated or found on the Defendant’s land; matters concerning the chain of custody of that material; the testing of that material to determine its content; and opinions concerning when certain fill material may have been placed on the First Defendant’s land. These are issues relevant to the charges brought against the Defendants.

15. What I then understood from Mr Foster, is that Mr Israel wishes to provide a further report addressing the opinions expressed in the McKay Supplementary Report that concern particulars relevant to the charges brought against the Defendants, such as whether the First Defendant “polluted land” within the meaning of s 142A(1) of the Act; whether any alleged pollutant was “asbestos waste” as defined in the Act and the Regulations to the Act; and the tonnage of any such waste. Such matters would also be relevant to the charges brought under ss 143(1), 143(1)(a) and 144(1) of the Act.

16. As to the material served more than a year ago by the Prosecutor, but not yet considered by Mr Israel (much of which now constitutes Exhibits in the Proceedings), Mr Israel wishes to consider this evidence (mainly affidavits of the Prosecution witnesses and Exhibits or Annexures thereto) for similar reasons - that is, to express opinions relating to the nature of any waste or fill on the First Defendant’s land; how samples of soil from that land or fragments of material taken from it were analysed; and the volume of any alleged “asbestos waste”.

17. Specifically mentioned by Mr Foster in oral submissions were affidavits (together with their Annexures and Exhibits) of the following witnesses:

(a) affidavits of Daniel William Opdam dated 9 August 2023 (Ex. P7) and 1 November 2023 (Ex. P8); (b) affidavit of Joshua Thomas Madden dated 19 July 2023 (Ex. P19); (c) affidavit of Samuel Jack Bannon dated 21 November 2024 (Ex. P16); (d) exhibit AS-1 to the affidavit of Alana Jane Smylie dated 31 May 2024 (Ex. P20); (e) affidavit of Hannah Robertson dated 19 April 2023 (Ex. P23); (f) affidavit of Mark Leuschner dated 29 August 2023 (Ex. P9); (g) affidavits of Frederick John Hennessey dated 15 August 2023 (Ex. P17) and 18 September 2023 (Ex. P18); (h) affidavits of Michelle Ann Roberts dated 30 August 2023, 20 September 2023, and 6 March 2024 (not yet in evidence); (i) affidavit of Philip Khalifeh dated 11 August 2023 (Ex. P2); (j) affidavit of Daniel Philip Burchmore dated 21 June 2023 (Ex. P1); (k) affidavit of Robert Frank Evans dated 11 August 2023 (not yet in evidence); (l) affidavit of George Ellinas dated 26 June 2023 (Ex. P3); and (m) affidavit of Amanda Kelly dated 30 August 2023 (Ex. P5) (see Transcript at T420.14-425.10).

18. The affidavit evidence referred to above traverses issues relevant to the charges brought against the Defendants such as the taking of samples of soil and fragments of material from the First Defendant’s land; the chain of custody of those samples; the analysis of that material; volumetric surveys of alleged fill material on the land; evidence concerning the condition of the land at the time it was purchased by the First Defendant; certain covert surveillance film (including of truck movements allegedly to and from the First Defendant’s land) and photographs; and evidence from the First Defendant’s phone and from laptops that was forensically extracted following the execution of the search warrants.

19. The submission made by Mr Foster was, in summary, that Mr Israel wished to consider all the above evidence for potentially expressing opinions relevant to much of this evidence, but particularly in relation to the taking of soil and fragment samples; chain of custody; analysis of samples; and the content of and volume of any fill that might be on the First Defendant’s land.

20. Some matters that Mr Foster submitted Mr Israel wished to consider seem like a stretch as to their potential admissibility. For example, it was submitted that Mr Israel wished to consider the evidence of Mr Andrew Ford, whose affidavits are dated 15 July 2023 (Ex. P21) and 7 March 2024 (Ex. P22) (which exhibit expert reports). Mr Ford is a Registered Surveyor. Mr Israel does not appear to have “specialised knowledge” in that field. It was also suggested that Mr Israel wished to express a view about the validity of a Clean-up Notice issued by the Prosecutor to the First Defendant pursuant to s 91 of the Act, and the subject of a charge brought under s 91B. It would be unusual if Mr Israel could admissibly express an opinion as to the validity of a statutory notice. It may be however that he wishes to express an opinion as to the form or content of that notice.

21. There was also the suggestion that Mr Israel wished to express views relative to criticisms made of a Mr Michael Tofler, who has also prepared an expert report for the Defendants dated 14 November 2024, and who is said to be an “environmental consultant”. It was not clear in what way Mr Israel wishes to express any views on this report, or how he might be qualified to do so. Nevertheless, with all that in mind, issues relating to the admissibility of any further report of Mr Israel that is sought to be relied on can be addressed at a later time.

Resolution

22. The amended motion should never have needed to be filed. The case management provisions in Division 2A of Part 5 of the CP Act are meant to avoid issues of the kind raised in the amended motion from arising. Mr Israel’s failure to consider the material served by the Prosecutor more than a year ago is either his failure, or a failure of the Defendants, or the blame is shared. In all those circumstances, it is a significant indulgence that is sought by the Defendants in their amended motion.

23. Having said that, the amended motion is essentially not opposed, and what is being sought now is, at least in part, a standing over of the hearing for a few days, rather than a longer adjournment as originally sought, that would have fragmented the trial. Additional hearing days have also been able to be added by the Court Registry in the week of 3 November 2025.

24. Further, I am satisfied that the additional report the Defendants wish Mr Israel to prepare may have relevance to the elements of the alleged offences the Prosecutor must prove. That, of course, says nothing as to whether any further report prepared by Mr Israel will be in whole or in part admissible.

25. Rather than make the orders sought in the amended motion, the orders I make in relation to the hearing of the amended motion are these:

26. Leave is granted to the Defendants to file and serve a supplementary report of Mr Israel within the bounds described in this judgment. Any such report is to be served on the Prosecutor (and emailed to my Associate) by no later than 6pm on Monday 27 October 2025.

27. The matter is listed for further mention before me at 12 noon on Tuesday 28 October 2025. That mention will be vacated if the parties jointly advise my Associate that it is unnecessary.

28. The further hearing of the Proceedings is stood over until 10am on Wednesday 29 October 2025.

29. Costs are reserved.

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