Did the third and/or fourth defendant deposit asbestos contaminated fill on property A?
95Senior counsel for the plaintiffs opened a case that there was a substantial amount of asbestos being removed from a demolition site at Meadowbank, some of which ended up being deposited on property A by the third and/or fourth defendant. He also submitted that irrespective of the identification of the source of the fill there was direct evidence that asbestos contaminated fill had been deposited on property A by the third defendant. Proof of either matter would result in this issue being determined in favour of the plaintiffs.
96Cardinal Holdings Australia (Cardinal) was retained to demolish and remove buildings and structures at the Meadowbank site and to excavate part of the land. The demolition work was to be performed in three stages. A Statement of Environmental Effects provided that stages 1 and 2 were consented to by the local Council on 5 March 2002 and involved the removal of 10 and 40 tonnes of fibro/asbestos respectively. Stage 3 involved the removal of 250 tonnes of fibro/asbestos and was consented to by Council on 16 July 2002. In addition the contract provided for the removal of asbestos vinyl tiles and lagged steam pipes.
97Cardinal is expert in removal of asbestos and specified appropriate work methods to be employed in demolishing stages 1, 2 and 3 and for the transportation by Cardinal to Penrith Waste Service Pty Limited of contaminated material. The demolition work was separate from the excavation work and was at a different level.
98It was submitted by the plaintiffs that there was a significant shortfall between the total amount of asbestos referred to in the waste dockets issued to Cardinal by Penrith Waste Service Pty Limited which bore the reference "Project 366" and the estimate of asbestos made in the Statement of Environmental Effect. Why this is so is unclear. It may be explicable on the basis "Project 366" was inadvertently omitted from some documents, that other project numbers were also used or that there were a number of documents that were not obtained or for some other reason. It is noted that none of the documents refer to sheet asbestos and it may be they were separately recorded. The deficit is not apparent if all documents produced on the relevant subpoena are taken into account. Evidence was not led by any party to explain these matters.
99The plaintiffs suggested that the Court should, at least, conclude there was a significant quantity of asbestos unaccounted for and presumably infer it was disposed of inappropriately. I am not prepared to draw that inference from the documents or lack thereof. The evidence is insufficient to justify such a finding.
100No laboratory test was performed by the EPA or the relevant council to determine if asbestos was present in the excavated material being removed from the Meadowbank site.
101The plaintiffs' case relied heavily upon Mr Leibeck, a driver employed by the third defendant at the relevant time, to give evidence as to the source of asbestos contamination and its deposit on property A by him and other employees of the third defendant. Mr Leibeck provided the only direct evidence for the plaintiffs as to contamination at Meadowbank and the deposit of contaminated fill on property A by the third and/or fourth defendant.
102Mr Leibeck, in essence, gave the following evidence:
(a) he was born in 1964, completed year 8 at school, had worked as a truck driver from age 18. He commenced employment as a truck driver on a trial basis with the third defendant on 19 April 2002. He was made a casual employee on 15 May 2002. His employment came to an end in September/October 2002. His initial employment to 15 May 2002 was "off the books", he was paid cash and no records were kept. From 15 May 2002 he was paid by direct debit into his bank account for his ordinary hours of work but was paid cash for any work out of his normal working hours. Generally, the ordinary working hours were 7.00 am to 6.00 pm;
(b) he kept a personal work diary in addition to a diary kept at the request of the employer. The latter diary was not available. The former was tendered in evidence. It was entered weekly and contained brief particulars of work undertaken each day. The relevant entries commenced on 15 May 2002 under the heading "New job". There were no entries from 19 April 2002 to 14 May 2002 inclusive. There were no entries from 14 June 2002 to 10 July 2002, from 1 August 2002 to 2 October 2002 inclusive though he did work during these periods. The diary entries noted loads delivered from Meadowbank to "Greendale" on 15, 16, 17 May 2002, 23, 24 May 2002, 28 May 2002, 7 June 2002, 11 June 2002, 11, 12 July 2002, 15 July 2002 and 16 July 2002. There were loads delivered from Meadowbank to the yard on 17 May 2002, 13 June 2002, 11 July and 18 July 2002, loads delivered from Penrith to "Greendale" on 18 May 2002, 27 May 2002, 28 May 2002, 1 June 2002, 16 July 2002, and 25 July 2002 to 31 July 2002, loads delivered from Meadowbank to Bringelly on 5 June 2002, and Meadowbank to Londonderry on 6 June 2002;
(c) each entry had the truck registration number JCR 600 noted. There were no entries for delivery to Greendale from any source other than Meadowbank or Penrith and no specific identification of the place or places at Greendale to which delivery was made, there being a number of different tipping sites in Greendale. The entry for Monday 27 May 2002 contains a note "Shit in loads";
(d) he first attended the Meadowbank site shortly after 16 April 2002. Because of Council's parking requirements neither he nor other drivers attended Meadowbank for approximately two weeks from late April or early May;
(e) in the first or second week after 15 May 2002 he agreed to be paid cash to mix piles of excavated material at Cranebrook (and later at Penrith) at the end of the day's work. This work was "off the books". No record was kept. The majority of the fill for property A came from Penrith and Cranebrook. He delivered this after hours and was paid cash. On one occasion there were bits of asbestos and asbestos sheeting in the material deposited at property A. He remembered this "because it meant I didn't mix it properly";
(f) he had deposited fill at many sites in the western suburbs of Sydney. Some 40 sites were nominated. He provided a list of addresses as to where he took loads. That was written by him. The sites included "Greendale". In his first affidavit he said that although he was not certain he estimated he had deposited not less than six loads on property A. The loads were obtained from a number of sites. A number of the loads were obtained from Meadowbank, Penrith and Cranebrook. In his second affidavit he said that the first affidavit was in error. It should have read "no less than six separate days". In late June the fourth defendant or Mr Attard instructed him he was no longer to unload at property A;
(g) he attended Meadowbank on 1 August 2002. In the preceding weeks he had observed persons there to throw from the roof of a building large sheets of what appeared to be corrugated fibro. This sheeting was thrown onto the ground adjacent to the building. He observed a large 80 tonne excavator travel across the sheets, crushing them. He then observed the sheets when broken into small pieces were mixed with the surrounding soil and pushed up to form a mound on site, from which fill was taken by the third defendant;
(h) on 1 August 2002 he had become concerned regarding the fibro sheeting he had observed and thought it may contain asbestos. Prior to departing the site, he inspected his load and observed a significant number of what, he said, appeared to be small pieces of corrugated fibro;
(i) he took the load to Cranebrook where he was directed by Mr Attard to take it back to Meadowbank. On his return to Meadowbank he told John Kinsella, a principal of Bilberger, the head contractor, that the material had asbestos in it. He was told to tip it on the stockpile from which it had been taken. This was confirmed by Mr Cummins who was driving a truck accompanying him. However Mr Cummins described the so-called asbestos as "white stones half an inch thick". It would not appear from that description to be asbestos material;
(j) on 13 August 2002 he was directed by Mr Attard to take a load to Garfield Road, Marsden Park from Penrith. On arrival at Garfield Road the tipper jammed. Officers of Blacktown City Council arrived and issued Mr Leibeck with an infringement notice for transporting contaminated fill, the alleged contaminant being asbestos. The fourth defendant said he would pay the infringement notice. He did not do so. The infringement notice was for $1500. Mr Leibeck observed that had the fourth defendant paid the infringement notice they would not be here now;
(k) he generally attended property A between 7.00 am and 6.00 pm but also attended it on a number of nights, including a Saturday evening. He recalled that on the Saturday evening he delivered loads of fill to property A until 3.00 am.
103Mr Leibeck gave further evidence which, in short, was as follows:
(a) he obtained employment with the third defendant by answering an advertisement. In fact, he was introduced by a friend, as he later conceded. No job had been advertised;
(b) he was a licensed asbestos remover and had received training in asbestos removal. No confirmation of this was proffered. He did not make such a claim when previously interviewed by an EPA officer as to his knowledge and experience of asbestos;
(c) the white copy of the truck docket contained information which was for the benefit for the third and fourth defendants only and which was not duplicated on the coloured sheets. He had been asked on occasions by the fourth defendant to falsify information on the dockets. He said the white copy was kept by the third or fourth defendant. Mrs Cauchi said that the white copy was sent to the customer along with the invoice, there was no request to falsify information;
(d) he had difficulty reading and writing. He said even some of the writing in his personal diary was made by others. His writing could be distinguished from the writing of others by reason of its slope. However, in a number of cases the slope differed in the one word, with the result that some part of the writing of a word was attributed to Mr Leibeck and other parts not. He asserted the words "New job" in the diary were not his writing. He said he could not read a list of delivery points which had been written by another for him. This conflicted with the evidence of Mr Riding, the Council officer who obtained the document. His evidence was the document had been wholly written by Mr Leibeck in the presence of Mr Riding;
(e) he had observed the first defendant recording on a pad or daily run sheet each truck which deposited fill on property A. He later withdrew this assertion;
(f) he observed the first defendant operating an excavator at the Penrith site and at the Meadowbank site. Under cross examination he recanted;
(g) he agreed in cross examination that he ordinarily drove truck registration XIG-789. He agreed he had identified the truck he drove in the diary as JCR-600 on all occasions but said that this was because it was the only number he could remember;
(h) he was instructed by the fourth defendant to make sure no-one else dumped on the sites at Greendale Road. This was denied by the fourth defendant;
(i) the third and/or fourth defendant employed contractors of Asian or Indian appearance. This was denied by the fourth defendant and his wife;
(j) there was a practice whereby the registration plates were taken off one vehicle and placed on another to enable defective vehicles to continue to operate. He recalled that the registration number of a Honda sedan was substituted on a truck by Mr Iraia. The alleged practice and the actions alleged against Mr Iraia were denied.
104The fourth defendant and Mrs Cauchi asserted that Mr Leibeck was employed from 15 May 2002 and not before. He had not been employed off the books and was not paid cash. He was not paid cash for after hours work. No employees were paid cash. The Court was not taken to any material, other than Mr Leibeck's evidence, to substantiate his claims in this regard. A number of the truck drivers employed by the third defendant gave evidence. None of them confirmed Mr Leibeck's evidence in this regard. Indeed, it was not put to them.
105The fourth defendant and Mrs Cauchi denied that asbestos was mixed with clean fill by the third and/or fourth defendant. No employee of the third defendant gave evidence which confirmed this practice. None gave evidence of delivering fill containing asbestos to property A.
106The personal diary gave the appearance of being compiled well after the event and not on a regular weekly basis. The use of the same registration number for the truck seems to confirm this. The contents of the diary conflicted almost completely with the matters recorded in the third defendant's records. It was not contended those records had been falsified by the third and/or fourth defendant.
107There is a seeming inconsistency between Mr Leibeck's asserted concern in respect of asbestos on 1 August 2002 and his evidence that he had willingly mixed asbestos and clean fill since shortly after commencing employment by the third defendant in May.
108The matters referred to create a serious doubt as to the reliability of Mr Leibeck's oral evidence and the documents created by him.
109That doubt is compounded by his demeanour in the witness box. That was recorded in the following terms by senior counsel.
110Senior counsel for the plaintiffs, whose witness he was, described Mr Leibeck's presentation in the witness box as "less than amicable". He continued:
"[Mr Leibeck's] presentation must be viewed from the perspective that Mr Leibeck is uneducated, illiterate, ill-tempered and labours under a suspicion and fear of authority. It was also plain from his time in the witness box that Mr Leibeck was suffering significant chronic pain from a work-related injury to his back. Whilst these factors affected Mr Leibeck's demeanour, it is submitted that they do not detract from the fact that he is a witness of truth and should be believed."
111Senior counsel for the third and fourth defendants described Mr Leibeck as:
"an entirely unsatisfactory witness. Substantial parts of his evidence were fabricated. Mr Leibeck appears to have a significantly damaged personality which appears to have led him to instigate an unwarranted investigation by the EPA into the affairs of Billberger at Meadowbank and the trucking business of the Cauchis. Mr Leibeck was not candid in cross examination and his truculent approach to the questions he was asked thwarted the proper testing of his evidence. Much of what he said was literally fantastic. The evidence which Mr Leibeck gave was thoroughly inconsistent with the objective evidence and that given by other witnesses. Nothing he said should be accepted as inherently credible. Mr Leibeck's evidence should simply not be believed unless it is supported by independent evidence or testimony...the fate of [the plaintiffs] claims is bound to the credibility of Mr Leibeck's evidence. As Mr Leibeck's credit is in tatters, the plaintiffs' case has correspondingly collapsed."
112However, the events of 1 August 2002 recounted by Mr Leibeck are, in part confirmed by the accompanying truck driver Mr Cummins. Mr Attard has not been called to give evidence to the contrary. The events of 13 August 2002 have the objective underpinning of the infringement notice though it does not establish that there was in fact asbestos in the truck. Accordingly, it cannot be said all of Mr Leibeck's evidence was false. However, the effect of much of his evidence and his demeanour causes me to conclude that his evidence, both oral and documentary, cannot be accepted unless satisfactorily corroborated.
113The plaintiffs initially submitted, based on the evidence of Mr Leibeck, that since approximately the end of May 2002 until at least 1 August 2002 Mr Leibeck, at the request of the third or fourth defendant, was deliberately mixing asbestos and clean fill and causing it to be transported to tip sites in the western suburbs. I do not accept that the evidence of Mr Leibeck is sufficiently reliable to enable me to reach that conclusion. There is no acceptable evidence to support the mixing of clean fill and asbestos at this site. The reaction of Mr Attard to the suggestion of asbestos in the load on 1 August 2002 was to send it back immediately. This provides some confirmation that Mr Leibeck's evidence was unreliable.
114In these circumstances, the source of the contaminant which the plaintiffs fell back upon was the alleged throwing of materials and crushing by excavator at Meadowbank.
115The thrust of Mr Leibeck's evidence was that the throwing down and crushing was a deliberate practice. The evidence does not establish that the material being thrown down was asbestos. The dangers of such a practice would be obvious if it was. Mr Cummins said he did not see anyone throwing sheets of fibro off the roof. He said he took only dirt from the site. Mr Kinsella did not observe asbestos like material being thrown from the roof of buildings on the site and denies that material was crushed by the tracks of an excavator whilst lying on the ground or that crushed asbestos material was then blended with virgin excavated material on the Meadowbank site before being loaded into trucks of the third and/or fourth defendant. Mr Kinsella was on site early and for the most of any day. I do not accept Mr Leibeck's evidence on this aspect.
116I accept that the event on 13 August 2002 occurred, so far as apprehension by Council officers, generally as alleged by Mr Leibeck. However, his evidence as to the source of the contaminant was confused. He gave different answers on different occasions as to the source and ultimately said he did not know. The sites he suggested are not relevant to property A so far as the evidence extends. The date of the occurrence is well after 1 June 2002.
117It is highly improbable any fill was taken from Meadowbank to property A in the period up to 1 June 2002 as during that period the third and fourth defendant transported only 20 loads from Meadowbank over two days. There was no direct evidence apart from Mr Leibeck that excavated material was delivered to property A. Indeed, so far as there are records of the destination to which fill from that site was delivered, it was to sites much closer than property A to the Meadowbank site.
118The principal source of fill for property A was Penrith, which was considerably closer to property A than the Meadowbank site. The third defendant had a validation certificate for excavated materials from that site. There is no acceptable evidence the material for excavation at that site was contaminated with asbestos.
119I do not accept the evidence of the mixing of fill at Cranebrook and Penrith given by Mr Leibeck. I do not accept the evidence of fibro poking out of a load due to inept mixing by Mr Leibeck. I do not consider the entry in Mr Leibeck's diary of "Shit in load" is a reliable, near contemporaneous note.
120There was reference to evidence pursuant to ss 97 and 98 of the Evidence Act 1995 in respect of the properties at Garfield Road, Marsden Park and Belmore Road, Bringelly. The evidence established that there was asbestos found in samples taken from each property and that the third and/or fourth defendant had delivered fill free of charge to each site. In my opinion, this evidence is admissible without resort to ss 97 or 98. The circumstances of the arrangements for the payment for compacting differ between the two properties. Each site was unsecured and there was evidence one had contained a large heap of building material and the other had been a building site. There were allegations of third parties delivering fill to these sites and an alleged admission in this regard by one of the owners, which was denied.
121The fourth defendant and Mrs Cauchi gave evidence that no fill was moved from Cranebrook or Londonderry to any private tip.
122The events on 1 August 2002 and 13 August 2002 each occurred outside the period claimed by the plaintiffs, arose from delivery to sites other than property A, and probably had a different source. They provide no direct evidence to support the plaintiffs' claim.
123The onus lies upon the plaintiffs to prove that the third and/or fourth defendant deposited asbestos contaminated fill on property A. In my opinion, the plaintiffs have not proved asbestos contaminated fill was deposited by the third and/or fourth defendant on property A.