M.&.S. Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations (No 3); M.&.S. Investments (NSW) Pty Ltd v Boutros; M.&.S. Investments (NSW) Pty Ltd v Carbone; M.&.S. Investments (NSW) Pty Ltd v Carbone; M.&.S. Investments (NSW) Pty Ltd v Boutros

Cases Cited: Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2
Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Briginshaw v Briginshaw (1993) 60 CLR 336; [1938] HCA 34
Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46
Kingscote District Council v Kangaroo Island Eco Action Inc (No 1) (1996) 92 LGERA 117
Nguyen v R (2020) 269 CLR 299; [2020] HCA 23
PNJ v R (2009) 83 ALJR 384; [2009] HCA 6
Price v Ferris (1994) 34 NSWLR 704
R v Basha (1989) 39 A Crim R 337
R v Carroll (2002) 213 CLR 635; [2002] HCA 55
Rogers v R (1994) 181 CLR 251; [1994] HCA 42
Strickland (a pseudonym) v Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53
Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351
Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited: Chris Corns, Public Prosecutions in Australia (2014, Thomson Reuters)
Office of the Director of Public Prosecution, Prosecution Guidelines (March 2021)

Category: Procedural rulings

Parties: M.&.S. Investments (NSW) Pty Ltd (Prosecutor)
Affordable Demolitions and Excavations Pty Ltd (Defendant, 2021/261150-53) (First Defendant)
Chalita Boutros (Defendant, 2021/261154-57) (Second Defendant)
Futurepower Developments Pty Ltd (Defendant, 2021/261158-62) (Third Defendant)
Angela Carbone (Defendant, 2021/261163-67) (Fourth Defendant)
Domenic Carbone (Defendant, 2021/261168-72) (Fifth Defendant)
Rimon Boutros (Defendant, 2021/261173-76) (Sixth Defendant)

Representation: Counsel:
R Tripodi (Prosecutor)
D Wilcox (First, Second and Sixth Defendants)
D Carbone (Fourth Defendant as Litigant in person, Fifth Defendant as agent)
Not applicable (Third Defendant)
Solicitors:
Watson Stafford & Zipkis Nguyen (Prosecutor)
Boutros & Associates (First, Second and Sixth Defendants)
Not applicable (Fourth and Fifth Defendants)
Not applicable (Third Defendant)

File Number(s): 2021/00261150, 2021/00261151, 2021/00261152, 2021/00261153, 2021/00261154, 2021/00261155, 2021/00261156, 2021/00261157, 2021/00261163, 2021/00261164, 2021/00261165, 2021/00261166, 2021/00261167, 2021/00261168, 2021/00261169, 2021/00261170, 2021/00261171, 2021/00261172, 2021/00261173, 2021/00261174, 2021/00261175, 2021/00261176

JUDGMENT

1. Numerous charges under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) have been laid in private prosecutions by the Prosecutor M.&.S. Investments (NSW) Pty Ltd (M&S) against six defendants. Leave pursuant to s 219(1) of the POEO Act to commence the various proceedings was granted by a judge on 11 September 2021.

2. The same four charges against each of Affordable Demolitions and Excavations Pty Ltd First Defendant, Mr Chalita Boutros Second Defendant and Mr Rimon Boutros Sixth Defendant (Boutros Defendants) have been commenced, totalling 12 charges in all. The same charges and an additional charge have been commenced against Futurepower Developments Pty Ltd (Futurepower) Third Defendant, Mrs Carbone Fourth Defendant, and Mr Carbone Fifth Defendant (totalling 15 charges in all). M&S and Futurepower now in liquidation are joint owners of a property at Lot 25 Jardine Drive, Edmonson Park (the property). Mrs Carbone was a director of Futurepower. Mr Carbone is married to Mrs Carbone. Mr Carbone used to be the solicitor for M&S and Futurepower.

3. I understand that six notices of motion filed in relation to Futurepower the Third Defendant being matter numbers 2021/00261158, 2021/00261159, 2021/00261160, 2021/00261161 and 2021/00261162 are not before the Court. Any reference to the Defendants in this judgment does not include the Third Defendant.

4. According to M&S the charges arise from the activity of the deposition of soil on the property at some point between September and November 2016 by the Boutros Defendants purportedly at the request of Mr Carbone. The charges against all the Defendants under the POEO Act are:

5. section 115(1)– disposal of waste – harm to the environment;

6. section 142A(1)– pollution of land;

7. section 143(1)– unlawful transporting or depositing of waste;

8. section 144AAA(1)– unlawful disposal of asbestos waste.

9. An additional charge under s 144(1)(b), of the use of a place as a waste facility without lawful authority was commenced against Futurepower and Mr and Mrs Carbone.

10. Five Defendants (the Boutros Defendants and Mr and Mrs Carbone) have filed collectively 22 notices of motion dated 6 September 2024 for the Boutros Defendants, 22 December 2021 for Mrs Carbone and 23 December 2021 for Mr Carbone seeking permanent stays of all charges against each of them or alternatively orders that the proceedings be struck out on the basis the charges are an abuse of process. The Boutros Defendants were jointly represented by counsel. Mr Carbone acted for himself and as agent for his wife Mrs Carbone.

11. M&S has also filed 22 notices of motion dated 6 September 2024 in all matters concerning the Boutros Defendants and Mr and Mrs Carbone alleging that all the Defendants’ notices of motion are an abuse of process and should be permanently stayed. The relief sought was ‘a summary order on affidavit’ that the proceedings be permanently stayed. M&S argued in the pre-trial mention that its notices of motion should be dealt with first because it was appropriate to rely on this procedure, and was supported by Batistatos v R**oads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [8], [10]-[12], [14]-[15] (Gleeson CJ, Gummow, Hayne and Crennan JJ) (Batistatos). If M&S’ notices of motion were heard first on that basis evidence would be provided solely by affidavit with no cross-examination of witnesses permitted. Presumably if successful the Defendants would not be able to argue their notices of motion. Batistatos is a civil case, has factual circumstances far removed from this case, is not authority that such an approach in a criminal matter is appropriate and does not use the words ‘summary order on affidavit’. I declined in the pre-trial mention M&S’ application that its notices of motion be heard first. I heard argument on M&S’ notices of motion after the Defendants’ notices of motion.

12. The evidence relevant to all the motions is essentially the same and the arguments largely overlap. The order was made that evidence in one notice of motion is evidence in the other notices of motion.

13. The Defendants bear the onus of establishing their case for a permanent stay of the prosecutions based on an abuse of process established on the balance of probabilities, s 140(2) Evidence Act 1995 (NSW) (Evidence Act). The onus has been described as a heavy one, with the power to grant a permanent stay to be exercised only in the most exceptional circumstances given that such an order prevents the Court exercising its jurisdiction, Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585; [2014] VSCA 351 at [62] (Kyrou JA in dissent) (Treasury Wine) citing Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 529 (Spautz), see also Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 at 31 (Mason CJ), 76 (Gaudron J) (Jago). The seriousness of the allegation that the predominant purpose of the Prosecutor is improper informs the application of the factors in s 140(2) of the Evidence Act, see also Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 362 (Dixon J) (Briginshaw). The factors which a court must take into account, without limiting other matters, are the nature of the cause of action, the nature of the subject-matter of the proceeding and the gravity of the matters alleged. If an abuse of process is proved there is no discretion to refuse a stay, Batistatos at [7] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

14. The parties agreed the Court has power to make the orders sought by the parties’ motions in order to manage the matters before it.

15. Affidavits dated 10 August 2023 and 5 September 2024 of Mr Malke Boutros solicitor for the Boutros Defendants, affidavit of Ms Fleming former solicitor for Mrs Carbone dated 14 January 2022, and two affidavits of Ms Morton former solicitor for Mr Carbone both dated 14 January 2022 were read by the Defendants. The affidavits of Ms Fleming and Ms Morton largely provided a basis for the chronology set out below. Mr Malke Boutros’ affidavit dated 10 August 2023 annexed documents produced on subpoena by Liverpool City Council (LCC) which related to or recorded investigations or inquiries or reports about deposits of landfill on the property from January 2015 to 29 November 2021.

16. M&S read numerous affidavits.

Zipkis affidavit dated 7 September 2021

13. Mr Zipkis’ affidavit sworn 7 September 2021 was relied on at the time the summonses were commenced. The second paragraph stated that the proceedings are needed to safeguard his client’s commercial interest.

14. The affidavit of Mr Bilaver dated 26 March 2021 exhibited to Mr Zipkis’ affidavit dated 7 September 2021 was also before the judge when proceedings were commenced. Mr Bilaver described the property as the residue of subdivisions undertaken by the two companies M&S and Futurepower of some 2238m2. He detailed the deposition (dumping) of soil by Mr Chalita Boutros at the request of Mr Carbone, asking Mr Carbone and Futurepower on numerous occasions to have the soil removed and Mr Carbone refusing as he said it would be used in future roadworks on Browning Road. Mr Bilaver stated that M&S has suffered and continues to suffer loss and damage as a result of contaminated soil being dumped on the property, as development for which development consent has been obtained cannot proceed because of its presence.

Bilaver affidavit dated 6 September 2023

15. The affidavit of Mr Bilaver dated 6 September 2023 annexed three letters: (i) a letter dated 20 November 2018 sent by Mr Carbone as lawyer for M&S and Futurepower which attached several reports (set out below in [52]), (ii) a letter dated 13 May 2019 from Mr Zipkis on behalf of M&S (set out below in [53]) and (iii) a letter dated 20 May 2019 sent from Mr Zipkis on behalf of M&S to Futurepower following receipt of a proposed restore works order from LCC offering to sell M&S’ interest in the property for $600,000. The letter stated that ‘We understand that Barclays Law Group was previously engaged to represent both our client and yourself in regards to soil stock piled on the above property.’

16. Mr Bilaver stated that he did not provide instructions to Mr Carbone that the 20 November 2018 letter be sent on M&S’ behalf. Mr Bilaver attested to conversations with Mr Carbone asking him to remove the soil placed on the property which Mr Carbone refused to do. Mr Bilaver stated that Mr Carbone refused to provide the reports attached to the letter of 20 November 2018. Consequently he commissioned a preliminary waste classification report by Aargus Pty Ltd dated 30 August 2019 (Aargus report), which found asbestos contamination in the waste brought to the property. Mr Bilaver otherwise adopted paragraphs 24-30 of Mr Zipkis’ affidavit of 6 September 2023.

Zipkis affidavit dated 6 September 2023

17. The lengthy affidavit of Mr Zipkis dated 6 September 2023 was largely read as submission rather than evidence as the content and drafting warranted that approach. In particular paragraphs 11-15 and 17-39 were read as submissions. Paragraph 16 which stated that Mr Tripodi’s advice evinced a ‘typical prosecution strategy’ in providing incentive to a witness for their cooperation was read as evidence.

Nguyen affidavit dated 29 October 2024

18. The affidavit of Mr Nguyen solicitor for M&S dated 29 October 2024 prepared in relation to a separate notice of motion filed by M&S was also read. It attached a stockpile characterisation assessment report prepared by Martens & Associates Pty Ltd in July 2023 (Martens report). The first time this report was seen by the Defendants was when they received Mr Nguyen’s affidavit.

19. An affidavit of Mr Zipkis dated 27 January 2022 was read by Mr Carbone. In the affidavit Mr Zipkis described a recollection that at a listing of these proceedings before a judge on 5 November 2021, M&S had ‘submitted it needed time to commission the preparation of an expert report in admissible form as to the presence of asbestos contamination in the dumped soil’ on the property.

20. After the three affidavits of Mr Zipkis were read by M&S the Court and the Defendants were advised essentially without notice that Mr Zipkis was unexpectedly too ill to appear for cross-examination as the Defendants had all required. After Mr Tripodi M&S’ counsel gave oral evidence, set out below in [71], the Defendants no longer required Mr Zipkis for cross-examination.

21. There is generally no dispute about what events occurred when. There is dispute about how these events should be characterised for the purposes of the notices of motion of all parties.

22. Most of the evidence now before the Court was not before the judge considering whether to allow charges to be commenced as provided by s 219(1) of the POEO Act on 11 September 2021. Mrs Carbone identified that new evidence includes correspondence and reports relied on by Mr and Mrs Carbone, communications between the solicitor for M&S Mr Zipkis and various parties including the Boutros Defendants and an advice provided to Mr and Mrs Bilaver by Mr Tripodi of counsel.

Chronology

23. Between September and November 2016 Mr Bilaver attended and inspected the property. He observed ‘a large pile of soil had been dumped on the property’ and ‘a young man operating a backhoe on top of the pile of soil, and on the other side of the property on Jardine Drive, there was a truck delivering another load of soil’. Mr Bilaver spoke with the backhoe operator and Mr Chalita Boutros. Mr Bilaver said that he had a conversation with Mr Chalita Boutros who indicated to him that he transported and deposited the soil material on the property at the direction of Mr Carbone. An alleged conversation between Mr Bilaver and Mr Carbone occurred. With Mr Bilaver using Mr Chalita Boutros’ mobile telephone Mr Carbone is alleged to have confirmed or admitted that he arranged for the transporting and depositing of the soil material on the property which he intended could be used for road works on Browning Road.

24. On 4 September 2018 LCC received correspondence from the Natural Resource Access Regulator in respect of a complaint about alleged pollution into Cabramatta Creek from the property.

25. On 12 September 2018 Mr Theys, authorised officer from LCC, attended the property and conducted an inspection and observed a large pile of accumulated soil and waste.

26. On 25 September 2018 Mr Theys wrote to M&S and Futurepower indicating that during an inspection a large stockpile of soil had been identified. Mr Theys requested that the property be remediated.

27. On 23 October 2018 LCC wrote to M&S and Futurepower serving a draft clean up notice.

28. On 9 November 2018 LCC wrote to M&S and Futurepower serving a draft clean up notice on M&S as a joint owner of the property pursuant to s 91 of the POEO Act in relation to the soil on the property.

29. On 20 November 2018 Mr Carbone, stating he was the solicitor instructed by M&S and Futurepower, wrote to LCC in response to the draft clean up notice to the effect that the soil was to be used for stage 3 of the subdivision and was not contaminated (20 November 2018 letter). The letter attached several expert reports and correspondence which Mr Carbone said demonstrated the soil was not contaminated or placed without LCC’s knowledge.

30. On 28 November 2018 Mr Theys exchanged emails with Mr Monte, LCC council officer, about his inspection, the proposed order and the communication from Mr Carbone. Mr Monte replied and inter alia affirmed the position that there was knowledge of the soil being imported to the property, confirmed that a construction certificate had not been issued, said that he would like the soil removed and expressed an opinion that ‘one owner is playing against another blaming each other’.

31. On 26 April 2019 LCC issued a notice of proposed restore works order to Mr Bilaver in his capacity as director of M&S. LCC also issued a Notice to Mrs Carbone on behalf of Futurepower.

32. On 10 May 2019 Mr Carbone as solicitor for Futurepower wrote to LCC in respect of the notice of proposed restore works order.

33. On 13 May 2019 Mr Zipkis, solicitor for M&S from 5 May 2019, wrote to LCC in response to the notice of proposed restore works order (13 May 2019 letter).

34. On 20 May 2019 Mr Zipkis on behalf of M&S wrote to Futurepower (not specifically addressed to any person or position) in respect to the property making an offer to sell M&S’ interest for $600,000.

35. On 18 June 2019 Futurepower and M&S were issued separate restore works orders by LCC requiring them to remove stockpiles of landfill on the property and restore the land to its original ground level inter alia. A final warning to comply was issued to both companies by LCC on 5 August 2019. It appears these orders were not complied with.

36. Aargus Pty Ltd was commissioned by M&S to provide a report which was identified as ‘preliminary waste classification of stockpile site: 300 Jardine Drive, Edmondson Park NSW’. The Aargus report dated 30 August 2019 found that one of the five samples obtained from the site contained asbestos.

37. On 21 October 2019, LCC recorded receipt of a customer request reporting the dumping of soil on the subject land:

(a) an entry at 16:01:19 on 21 October 2019 recorded that the complainant asserted that the soil was dumped by the husband of the joint owner of the property and that soil testing confirmed asbestos; (b) an entry at 15:26:39 on 23 October 2019 recorded that the Environment Protection Authority (EPA) was the appropriate regulatory authority for this large volume of contaminated material. Further, the record noted that the complainant had already reported the matter to the EPA.

38. On 21 October 2019 Mr Bilaver made a report to the EPA that Mr Carbone placed soil on the property which was contaminated with asbestos and identified actions he had taken to try to get it removed.

39. On 21 October 2019 the EPA recorded that ‘it appears to be an historic matter between the owners’ and may be a ‘civil dispute’ between the owners.

40. On 7 November 2019 the EPA wrote to Mr Bilaver in response to his information about the ‘waste’ transported to the subject property. The EPA noted that M&S co-owned the subject land with Futurepower. The EPA advised that the appropriate regulatory authority to intervene was LCC.

41. On 1 March 2021 M&S received a memorandum of advice from counsel Mr Tripodi.

42. On 8 March 2021 Futurepower was wound up and a liquidator was appointed by order of the Supreme Court of NSW. Mr Zipkis became aware of this the following day.

43. On 9 March 2021 the liquidator of Futurepower wrote to Mr and Mrs Bilaver as directors of M&S. The liquidator asked what their intentions were as co-owners and joint tenants of the property.

44. On 23 March 2021 Mr Zipkis replied on behalf of M&S that his clients had been negotiating with the co-owners for some time but they had not been responding and that his clients were interested in discussing the possibility of acquiring the co-owner’s interest (23 March 2021 letter).

45. On 26 March 2021 Mr Zipkis wrote to the General Manager of LCC seeking assistance in obtaining evidence to support commencement of a prosecution and referred to unsuccessful efforts being made to obtain an affidavit or witness statement from Mr Chalita Boutros (26 March 2021 letter).

46. On 2 September 2021 Mr Zipkis wrote to Mr Chalita Boutros (2 September 2021 letter) and provided a proposed agreement by way of a deed in respect to providing evidence and supporting an application under s 471B of the Corporations Act 2001 (Cth) for proceedings in the Equity Division of the Supreme Court against Futurepower and in the prosecution of Futurepower, Mrs Carbone and Mr Carbone (the draft agreement). The covering email stated that the draft agreement was ‘in relation to the provision by you of an affidavit supporting our clients’ case’.

47. Charges were commenced against all Defendants on 11 September 2021.

Key events and documents in evidence

48. There are several key events and documents in evidence which the parties particularly referred to which follow:

49. What Mr Bilaver saw on the property between September and November 2016 and conversations he had with Mr Chalita Boutros (who said he was depositing the soil at the request of Mr Carbone) and Mr Carbone (in which Mr Bilaver told him to remove the soil).

50. A photograph taken 24 July 2017 produced under subpoena by LCC depicting a truck at the property doing earthmoving work.

51. An email from an LCC officer to a surveyor at Lean Lackenby and Hayward (LLH), surveyors employed by M&S and Futurepower for the subdivision, dated 25 July 2017 identifying that more material had been dumped on the property.

52. The 20 November 2018 letter from Mr Carbone to LCC responding to the draft clean up notice from LCC:

Dear Sir,

Re: Draft Clean-up Notice Lot 25 DP 1181029, Lot 25 Jardine Drive, Edmondson Park NSW

We advise that we act for Futurepower Development Pty Ltd and M & S Investments (NSW) Pty Ltd. We have been provided with a copy of your correspondence dated 9 November 2018 purporting to enclose a draft clean up notice.

We advise that any stock piled soil recently placed on Site (Lot 25 DP 1181029) has been removed and council has inspected its removal.

In terms of the material that remains on Site for the purposes of completing stage 3 of the development as approved by council of Lot 25DP 1181029 these materials are not contaminated materials and do not pose any imminent risk of any pollution or any other incident. The soils have been in situ since September 2016 and in fact were moved to the Site with Council’s knowledge.

There has been email exchange with Council previously, in 2017 which supports that the Council were aware that the soil placed in contemplation of stage 3 works and that those soils were not contaminated.

Council is estopped from submitting a notice to the contrary. We attach herewith relevant communications and expert’s reports which address the issues of clearance of the soils, the suitability of the soils for stage 3 works at Lot 25 DP 1181029 and council’s knowledge.

These documents are as follows:

1. Pacific Environmental Australia Pty Ltd Report dated 17 August 2015 (which cleared the site and stockpiles)

2. SGS Laboratory analysis dated 21 August 2015

3. Pacific Environmental Australia Pty Ltd Report dated 15 September 2015 (which cleared the site and stockpiles)

4. Australian Safer Environment and Technology Pty Ltd laboratory analysis report dated 15 September 2015

5. GDK Keighran Geotechnics Report dated 4 July 2017 confirming that the stockpiled materials are “suitable for the use in residential earthworks and are suited for the construction of the backfield subgrade of Browning Road within the stage 3 subdivision”

6. [sic]

7. Emails from

- Lean Lackenby Hayward (LLH) to the writer received 3 August 2017 (11:45AM) enclosing the email responses received from Stephen Monte Liverpool City Council (LCC) which at point 3-6 confirms receipt of the expert’s reports clearing the soils and validating the material for use at Lot 25 DP 1181029

- LLH to Stephen Monte (LCC) received 2 August 2017 (9:17AM)

- Email from the writer to LLH received 25 July 2017 (1:28PM)

- LLH to the writer received 25 July 2017 (11:28AM)

It is clear from these documents that there is no relevant pollution nor any imminent risk and nor were there any works undertaken without Council’s knowledge.

…

The stockpiled material will be used in the stage 3 development works. Council is aware that there has been lengthy and ongoing discussions with the adjoining neighbour about the construction of the roadworks necessitated by the two council approvals issued, firstly that for Lot 25 DP 1181029 and secondly for the adjoining parcel. Given that council approved the registration of the adjoining subdivision and permitted the creation of a lot (Lot 27) that has been set aside and as designated for future road formation of Browning Road, without conditioning the consent requiring the dedication of Lot 27 to Council that has caused an impasse with the current owner as to alleged entitlements for compensation for Lot 27. It is clear that Council's DA conditions impose an obligation for the construction of roadway and the dedication of that roadway compounding Lot 27.

We confirm that Council is not lawfully entitled to proceed to issue a clean-up notice and any such actions will be the subject of application to the Land and Environment Court as in Lismore City Council v Ihalaninen.

Our clients’ will rely on this correspondence on the issue of costs should the need arise in accordance with the principles of Calderbank v Calderbank [1975] 3 AII ER 333.

Kind regards,

Domenic Carbone

Principal Solicitor

Barclays Law Group

The various reports referred to in the above letter were in evidence including the reports of Pacific Environmental Australia Pty Ltd.

53. The 13 May 2019 letter from Mr Zipkis on behalf of M&S to LCC:

Dear Sirs

Re: Notice of Restore Works Order

Property: Lot 25 DP 1181029 Jardine Drive, Edmonson Park

We refer to the above matter and have to hand a copy of your letter dated 26 April 2019 addressed to our client M&S Investments (NSW) Pty Ltd.

As you are aware our client is one of the two owners of the property the other being Future Power Developments Pty Ltd.

We are instructed that the stock pile in question was deposited on the land some years ago without our client’s knowledge or consent. Notwithstanding this we note Council has previously threatened to issue Notices concerning the soil. In this regard we would direct you to a letter to Council from Barclays Law Group dated 20 November 2018.

It appears the soil was moved onto the land for temporary purposes. This move apparently was of the knowledge of Council.

It would therefore appear that the assertions in the above mentioned letter from Barclays Law Group remain applicable. Notwithstanding this our client is taking steps to divest itself of further involvement with the property which unfortunately may take some time.

In the circumstances, and in an effort not the further complicate negotiations we request that Council refrain from issuing any Notice regarding the stock pile soil. We note that the soil has been present for several years and, from the contents of the letter from Barclays Law Group, would appear to pose no environmental or other danger which requires immediate remedial attention. This would appear to be supported by Council’s prior involvement of the matter.

In addition as the stock-pile soil is intended to be used as part of the earthworks for the completion of construction of Browning Road, it would appear to be inappropriate for the proposed Notice to be issued.

We looked forward to co-operation from Council in resolving this matter.

Yours faithfully

WATSON STAFFORD ZIPKIS

54. Advice of Mr Tripodi counsel for M&S dated 1 March 2021 to the effect that:

55. Counsel had been instructed that the development and sale of the property was the subject of a dispute between the co-owners (paragraph 2);

56. The estimated cost of removing the soil was in the vicinity of $700,000‑$800,000 (paragraph 3);

57. LCC had advised that they did not wish to become involved and no construction certificate would be issued until the stockpile was removed. The relevant LCC officers included Mr Vo and Mr Monte (paragraph 4);

58. The directors of M&S wished to extricate themselves from the property and there had been an agreement with the co‑owners to engage an independent conveyancer to sell the property (paragraph 6);

59. Consideration should be given to a sale pursuant to s 66G of the Conveyancing Act 1919 (NSW). This required the involvement of the liquidator appointed for the co-owner company who was not inclined to become involved unless an indemnity was provided (paragraph 7);

60. A s 66G application should be pursued once the soil stockpile was removed (paragraph 7);

61. There should be efforts to ‘spur’ LCC into action or to have LCC assist M&S to commence criminal proceedings against Mr Carbone, Mrs Carbone and Futurepower (paragraph 8);

62. As LCC had apparently decided to take no action in relation to the stockpile of soil, it left M&S with little option but to look at their legal options to force the ‘offenders’ to remove the soil (paragraph 9);

63. The refusal of Mr Carbone and Futurepower to remove the soil stockpile and the continuing presence of the stockpile was providing an obstacle to both the development of the land and its sale, even by way of a s 66G application (paragraph 10);

64. The commencement of criminal proceedings was necessary, as on the facts, they would likely provide the best chance of compelling the removal of the soil at the expense of Futurepower in addition to Mr Carbone and Mrs Carbone personally (paragraph 11);

65. The commencement of criminal proceedings against Mr Chalita Boutros would provide him with the necessary incentive to cooperate in prosecuting and obtaining convictions against Futurepower, Mr Carbone and Mrs Carbone by holding out to Mr Chalita Boutros the incentive of not prosecuting him and his businesses for his cooperation (paragraph 11);

66. The representations made by Mr Carbone in his capacity as solicitor for Futurepower and M&S may not be enough evidence to meet the standard of proof for causation beyond a reasonable doubt against the various potential offenders (paragraph 32);

67. In respect to potential offences of unlawful disposal of asbestos waste contrary to s 144AAA of the POEO Act, on the facts there was no evidence of the potential defendants having permitted a contravention of the offence. However, they should be charged with having ‘caused’ the disposal of the asbestos waste (paragraphs 35-36);

68. Part 8.3 of the POEO Act permitted a number of remedies including restoration, prevention and compensation (paragraph 38);

69. A benefit of proceeding criminally against Mr and Mrs Carbone and Futurepower was that Mr and Mrs Carbone may be ordered to undertake remedial work in a personal capacity and if they did not complete any ordered remedial work, they could be personally found guilty of an offence (paragraph 38);

70. Mr Chalita Boutros had claimed that Mr Vo of LCC was present when the soil was ‘dumped’, a point made by Mr Carbone in correspondence with LCC (paragraph 55);

71. Enquiries as to LCC knowledge of the movement of the soil should be made, which could include an application under freedom of information legislation (paragraph 55).

72. The 26 March 2021 letter from Mr Zipkis to LCC seeking assistance in the commencement of criminal proceedings against numerous defendants through the use by LCC of its investigating powers inter alia.

73. The 2 September 2021 letter from Mr Zipkis to Mr Chalita Boutros which enclosed the draft agreement:

Dear Sir

Futurepower Developments Pty Ltd (In Liquidation)

Further our recent discussions we enclose herewith:

1. Proposed Agreement in relation to the provision by you of an Affidavit supporting our clients case.

With this in mind we request you make an early appointment to attend our office and provide detailed instructions in relation to the circumstances surrounding the directions given to you for the relocating of soil on the subject property as well as the events that occurred subsequent to the initial request.

We strongly recommend that you obtain independent legal advice in relation to this Agreement. You will note that the obtaining of independent legal advice is referred to in the attached Agreement.

Can we please have your early advice and look forward to conferring further with you regarding the proposed Affidavit and the signing of the agreement.

Yours faithfully

WATSON STAFFORD ZIPKIS

57. Extracts of the draft agreement set out below:

BETWEEN M&S INVESTMENTS (NSW) PTY LTD ACN 109 611 903 of 5 Kelman Close, Edensor Park in the state of New South Wales the first part (hereinafter called “the Applicant/Prosecutor”)

AND CHALITA BOUTROS of 12 Alderney Road Merrylands in the state of New South Wales

RIMON BOUTROS of 12 Alderney Road, Merrylands in the state of New South Wales

AFFORDABLE DEMOLITIONS AND EXCAVATIONS ACN 160 307 371 of 12 Alderney Road, Merrylands in the State of New South Wales the second part (hereinafter called “the Defendants”)

WHEREAS:

1. The Applicant/Prosecutor has filed an Interlocutory Application in the Supreme Court against seven (7) Respondents including the Defendants in proceedings 2021/00032353 (“the proceedings”).

2. The Applicant/Prosecutor proposes to commence proceedings in the Land and Environment Court of New South Wales (“proposed proceedings”) against the first six (6) Respondents in the proceedings.

THE PARTIES AGREE AS FOLLOWS:

1. The Defendants will consent to and support in writing or otherwise (as advised by the Applicant/Prosecutor) all steps taken in the proceedings by the Applicant/Prosecutor including but not limited to consent to the grant of leave by the Supreme Court of New South Wales to the Applicant/Prosecutor commencing and continuing the proceedings and proposed proceedings against all the parties thereto.

2. The Defendants consent to the grant of leave by the Land and Environment Court of New South Wales to the A/P instituting the proposed proceedings against all the parties.

3. The Defendants will not assert or rely upon any right to object on grounds of admissibility, legal professional privilege or the privilege against self‑incrimination (after having been advised of the rights to object) in respect of any evidence of acts or admissions relevant to the alleged offences by them or other parties to the proposed proceedings.

4. The Defendants will not make any application for costs against the Applicant/Prosecutor in any proceedings.

5. In consideration of the full and complete adherence by the Defendants jointly and severally to all of the terms of this agreement, the satisfaction of which shall lie solely and completely in the opinion of the Applicant/Prosecutor, the Applicant/Prosecutor shall not take any steps in the proposed proceedings seeking the imposition of a any monetary penalty or cost order against the Defendants either individually or collectively.

6. Each of the defendants warrant that they have received independent legal advice in relation to the making of this agreement.

…

58. A letter dated 18 November 2021 sent by the solicitor then acting for Mrs Carbone to Mr Zipkis seeking a copy of counsel’s opinion on the basis that privilege had been waived, and various documents including statements of witnesses intended to be called and correspondence with potential witnesses.

59. A letter dated 24 November 2021 in which Mr Zipkis replied, providing counsel’s opinion, otherwise refusing the documents requested and advising that as advised to the Court on 5 November 2021 M&S needed to obtain an appropriate expert report in admissible form as to the presence of asbestos contamination in the dumped soil on the property. The letter stated that evidence was continuing to be gathered through the use of subpoenas to produce, and M&S had sought assistance from Liverpool Council to assist by exercising their investigatory powers (I note that prosecutions had already been commenced and notices requiring information should only be issued at the investigation stage).

60. A letter of particulars dated 6 December 2021 provided by Mr Zipkis to Mrs Carbone’s former solicitors which stated that the soil dumping had ‘the effect of degrading the environment, in that it has prevented, or, is preventing, the development and sale of the subject property’.

61. Mr Bilaver gave brief evidence in chief that he met with Mr Zipkis on 5 May 2019. He did not tell Mr Zipkis that he had previously instructed and authorised Barclays Law Group to represent M&S. Mr Zipkis then drafted the 13 May 2019 letter to Futurepower and provided it to Mr Bilaver for review. On 20 May 2019 Mr Bilaver approved the letter in a telephone conversation. Mr Bilaver said that he did not ‘pick up’ that the letter said M&S had instructed Barclays Law Group to represent it in relation to responding to the draft clean-up notice from LCC and he did not correct that statement.

Mr Bilaver’s cross-examination by Boutros Defendants’ counsel

62. Mr Bilaver was cross-examined by Mr Wilcox counsel for the Boutros Defendants as follows:

Q. In your affidavits, you don’t talk about the reasons for the prosecution, do you? Do you understand that question?

A. In my affidavits, I don’t talk about the prosecution. No.

…

Q. Now, you're aware that the prosecution is about some soil that was dumped on a property that you jointly owned with Futurepower Investments?

A. That’s correct.

Q. Now, paragraph 19, you talk about the day that you first saw this soil being put on the property and you talk about a conversation you had with Charlie [Chalita] Boutros, can you see that?

A. Yes, I do.

Q. So, you’ve said if you go towards the bottom of para 19, you’ve given evidence about a conversation that you had with Charlie Boutros. Can you see that?

…

Q. And it says, "I said to Charlie, 'Charlie, what are you doing here?', Charlie said, 'Domenic told me that this is his land and dumped this dirt here, he's paying me'.

A. That’s correct.

Q. And you understood that to be a reference to Domenic Carbone, yes?

A. That’s correct, yeah.

Q. And then you said if you go over to the next page, "Charlie, stop it, it is not his land, it is my land, I want you to stop and put these concrete barricades back". Do you see that?

A. That’s correct.

Q. And then the conversation goes on, I won't read it all out unless you'd like me to. But in that paragraph, you refer to that conversation with Charlie Boutros continuing and further conversation you had with Charlie Boutros. Can you see that?

A. Further conversation.

Q. So, the conversation continues between you and Charlie Boutros.

A. Yes, it does.

Q. And you’ve given evidence about that conversation in your affidavit.

A. Yes, I did, I did.

Q. And then you’ve given evidence about a further conversation you had with Domenic on Charlie's phone.

A. That’s correct.

Q. And then if you go to the next page, page 947.

…

Q. You say at the end of paragraph 19, you say "I then handed the phone back to Charlie", you can see that?

A. Yes.

Q. "I then walked away and drove off very angry".

A. That’s correct.

…

Q. Now, this is the first time that you became aware about this soil being put on the property.

A. That’s correct.

Q. I think you’ve already said on 5 May 2019, you engaged Zipkis lawyers, or Mr Zipkis, to be your lawyer. Is that correct?

A. Yes, I did.

Q. You told Mr Zipkis about this conversation that you had had with Charlie Boutros?

A. Yes, I did.

…

Q. … You can see this is a letter from Watson Stafford Zipkis dated 26 March 2021. You can see that?

A. I can.

Q. This is your solicitors, Watson Stafford and Zipkis?

A. Mr Zipkis, yeah.

Q. You can see that the letter is addressed to the general manager of Liverpool City Council?

A. Yeah. Yeah, I do.

Q. Have you read this letter before? Does this look familiar to you?

A. I can't recall it. I can't, I can't remember.

Q. You don't know?

A. I can't remember.

…

Q. Do you recall Mr Zipkis telling you that he was going to write a letter to Liverpool City Council around this time?

A. No, I don't recall that.

Q. You don't recall?

A. No, I don't recall it.

…

Q. Were you happy for Mr Zipkis to make decisions relating to this case?

A. Yes, I did.

Q. Without consulting you?

A. I gave him full description of everything and it was in his hands.

…

A. He decided what to do.

…

Q. You just said, "It was in his hands." You gave him the information and it was in Mr Zipkis's hands?

A. I can't tell him when to write and what to, what to - he's a solicitor. I'm not solicitor.

…

Q. … I want you to think about the types of decisions that you were happy for Mr Zipkis to make, okay?

…

Q. Did you say to Mr Zipkis or anyone else, any other lawyer, "I want to prosecute the defendants?"

A. I did.

Q. You did?

A. There was no option. I have no other option.

Q. … Let's return to this letter [of 26 March 2021]…

"We have sought to have Mr Boutros provide an affidavit or witness statement to the effect of what he told Mr Bilaver, however, he has not been cooperative even though he said he would be. The writer spoke to him by telephone on 21 October 2020. A draft statement was forwarded to him on 22 October 2020. Telephone calls were made to him on 3 November 2020 and 10 November 2020 seeking a response. A further copy of the draft statement was forwarded on 4 February 2021. After a further telephone discussion with Mr Boutros a copy was forwarded on 8 February 2021. No response has been received."

See that?

Q. I do.

Q. Is it still your evidence that you did not know that Mr Zipkis was contacting Mr Boutros?

A. That's correct.

Q. At some point, you've just given evidence you told Mr Zipkis words to the effect of, "I want to prosecute the defendants."

A. What's in effect I said to you, I've got no option so I stayed with him negotiation the man there because no other option but to take defendants to Court.

Q. Why did you think you had no other option?

A. Because I was negotiating with Mr Dominic Carbone on many, many occasions to bring things - to make things work. He never did. Nothing, did nothing. Nothing. Absolutely nothing. He was always denying, denying, denying, denying everything.

Q. Because of this dispute that you had with Domenic Carbone you felt you had no other option but to commence the prosecution?

A. The disputes, we, we try everything with him, including my solicitor, because we tried to negotiate with him. All sorts of things. Nothing worked. Nothing.

Q. And so, you decided to, because you felt nothing worked, you had no other options, you decided to prosecute Domenic Carbone?

A. That's correct. That's correct.

Q. And you knew that it would be useful to have Mr Boutros support your version of events?

A. No. I didn’t know. I didn’t work on it. I didn’t expect it to be Mr Boutros, because—

Q. So, you didn’t expect Mr Boutros to be prosecuted?

A. No, no, no, no, I don’t mean that. I didn’t mean that. Because Mr Boutros I called [caught] him in act when he deliver and dump the soil, I caught him myself, myself. Yep.

Q. Because you caught him yourself--

A. Yes.

Q. And you had that conversation with him that's in your affidavit--

A. Yes, yes, yes.

Q. You thought Mr Boutros would what, give a statement supporting you?

A. No, not at all, no.

Q. Did you hope Mr Boutros would give a statement?

A. No, I didn’t expect, I didn’t wait for it, I didn’t expect to give, nothing, nothing, I didn’t know.

Q. The only - you've just given evidence about why you started a prosecution against Mr Carbone.

A. Because of dumping of soil.

…

Q. … that was the only reason you commenced a prosecution against Mr Carbone?

A. The biggest reason. The main reason was dumping of the soil, and what I try to say, if I can explain. Once the soil is there, I ask him to remove, he says no, that soil will stay put there, we can use it in next stage ..(not transcribable).. subdivision. I said no way, it will not stay there. But not only me. Council wasn't happy. They didn’t approve the soil. It's unauthorised soil, and there will be no CC ever issued until soil is there, and there will be no - the land will be never developed.

Q. All right. So, you wanted Mr Carbone to remove the soil?

A. That's correct.

Q. And that's the reason you prosecuted him?

A. That's the reason, the biggest reason that the soil has to be removed. Not me only. Council more than me ..(Not transcribable)..

Q. I understand. But the main reason you prosecute Mr Carbone is because you want him to remove the soil?

A. Remove the soil, unauthorised soil, yeah.

Q. And the reason you prosecute to Mr Boutros is because you wanted him to help with the prosecution of Mr Carbone?

A. No. I didn’t - Mr Boutros didn’t come to me to be prosecute, in my mind, to prosecute. I, I forward information to my solicitor and my barrister, and my barrister made decision what to do, who to prosecute, not me.

Q. Okay. So, your barristers made the decision to prosecute Mr Boutros?

A. Yeah, all of us, not me.

Q. And you were happy for them to make that decision?

A. ..(Not transcribable).. what to do, he's my barrister. I can't tell him what to do. I don’t.

Q. Okay, I understand. So, it was your barrister, who made that decision?

A. That's correct, yes.

Q. And you accepted the advice of your barrister?

A. Well, I do.

Q. And that was in relation to Affordable Demolitions? The prosecution against Affordable Demolitions? That's the case? You accepted the advice of your barrister?

…

Q. So, the prosecution of Affordable Demolitions and Charlie Boutros and Rimon Boutros, that was based on the decision of your barrister?

A. Correct.

Q. That wasn’t your decision?

A. Correct.

Mr Bilaver’s cross-examination by Mr Carbone (Fifth Defendant, agent for Fourth Defendant)

63. A summary of the cross-examination of Mr Bilaver by Mr Carbone follows. Mr Bilaver agreed that the property was jointly owned with Futurepower and no agreement limited Futurepower’s use of or access to the property. Mr Bilaver confirmed that the reason he commenced the prosecutions of Mr and Mrs Carbone was because he wanted the soil removed by compulsion. He agreed he had no reason to believe the soil placed in 2016 was contaminated although he was always suspicious. He denied that he had a clearance report from Pacific Environmental Australia Pty Ltd. Mr Bilaver agreed that LLH surveyors were employed by M&S and Futurepower for the subdivision. Mr Bilaver could not recall being contacted by a surveyor from LLH in July 2017 telling him LCC had contacted the surveyor about illegal fill material being dumped on the property.

64. When shown a photograph of a truck on the property from 24 July 2017 included in subpoenaed documents produced by LCC Mr Bilaver was asked if he engaged a contractor to carry out work at the property because of the dumping of illegal debris. The photograph showed a contractor assisting Mr Bilaver to build a barrier to stop trucks going onto the property. Mr Bilaver stated that the contractor used soil that Mr Carbone had caused to be put on the property to build the barrier and he did not bring any soil onto the property. Mr Bilaver was not aware that documents had been produced under subpoena by LCC.

65. From 2015 or 2016 until the advice of Mr Tripodi dated 1 March 2021 M&S did not reach agreement with the adjoining owner Mr Juvesconi about the stage 3 subdivision development. Mr Bilaver agreed that part of Browning Road required for stage 3 required Mr Juvesconi to dedicate some land for that purpose. There has been no agreement to date with Mr Juvesconi about achieving road access.

66. Mr Bilaver agreed that he had solicitors prepare a contract for sale of the property by auction in 2024. The property was withdrawn from auction. Mr Bilaver agreed that he had his solicitor write to the liquidator of Futurepower expressing interest in buying the half share of the property. He did not use the Aargus report as a basis for negotiating or seeking to negotiate a price with the liquidator. He was not aware whether his solicitor submitted the Aargus report to the liquidator. When shown the 23 March 2021 letter sent by Mr Zipkis to the liquidator referring to contamination he could not recall the letter. He made another offer to the liquidator to buy the property but could not recall the date.

67. When asked whether he had offered to buy the half share of the property from the liquidator in January 2022 for $50,000, Mr Bilaver said it (ostensibly that price) was untrue. When asked what he offered to buy the land for, Mr Bilaver could not recall.

68. When asked if he wanted the soil removed because that would provide him with a commercial advantage he did not agree that was an advantage to him. He did not know if the land value would go up if the soil was removed. He agreed the land value could go up if the soil was removed.

69. When asked if he was advised by his barrister about the possibility of other types of proceedings, he could not recall such advice.

70. Mr Bilaver agreed the LCC and the EPA had not taken further enforcement action in relation to the soil put on the property in 2016.

Mr Tripodi’s oral evidence

71. In a highly unusual development Mr Tripodi barrister for M&S was compelled to give evidence by the Boutros Defendants with leave of the Court on the basis that his advice was central to M&S acting as it did. Mr Tripodi was cross-examined by Mr Wilcox counsel for the Boutros Defendants.

Q. You are the barrister for the prosecutor in these proceedings, M & S Investments?

A. Correct.

…

Q. So you were instructed at some point before 1 March 2021?

A. Yes.

Q. You've been involved since then in these proceedings?

A. Correct.

…

Q. You've settled, as well, a proposed deed which was sent to…the Boutros parties in September 2021?

A. Yes.

Q. You settled the covering correspondence to that deed?

…

A. No, I didn’t settle that…

Q. Your evidence is you settled this agreement?

A. Yeah, I believe so.

Q. Did you draft this agreement?

A. Perhaps the operative provisions. By that I mean the ones on the first page - the ones on the page 321 and, and going on to the next - just that - those first two lines, I think.

Q. So that is underneath the heading, "The parties agree as follows," it's clause 1 and it starts with, "The defendants will consent to and support in writing or otherwise as advised by the applicant/prosecutor all steps taken in the proceedings" and it goes on down to paragraph 6 on that same page. You drafted those?

A. … - all the words on 321 - look, I, I don’t remember if I drafted it all and there may have been input by Mr Zipkis, but I think I at least started with a draft.

Q. This agreement--

A. If I could just finish? So I think - yeah, so I think just the one - the words on 321.

Q. So those words on 321, clause 1 is in the terms that, "The defendants" - and that's the Boutros parties in these proceedings, so that's the first, second and sixth defendants?

A. Yep.

Q. "Will consent to and support in writing all steps taken by the prosecutor"?

A. Yep.

Q. Then number 2 is that, "The defendants will consent to the grant of leave by the Land and Environment Court to the proposed proceedings.” Clause 3 is that “the defendants will not assert or rely upon any right to object on grounds of admissibility, legal professional privilege or the privilege against self-incrimination after having been advised of the rights to object in respect of any evidence of acts or admissions relevant to the alleged offences by them or other parties to the proposed proceedings." … Just in relation to the privilege against self-incrimination, you've drafted that clause, clause 3?

A. I think so.

Q. You've proposed that the defendants will not object on the grounds of privilege against self-incrimination and then you say, "After having been advised of the rights to object", can you see that?

A. Yeah.

Q. Do you agree the effect of that is that essentially even if the defendants are advised they should object they've waived the right to do so? … even if that's contrary to independent advice they receive?

A. Well, well it doesn't go that far. So they're advised to, so if they're advised of the right to object the agreement was that they would give evidence relevant to all facts which were - the intention was that they give evidence of all facts as to their role in the events which could constitute - breaches of the criminal law against them, that is those facts to which Mr Bilaver had given us evidence of. So--

Q. So that was the intention?

A. Yes.

Q. That's not contained in this agreement but you say that was the underlying intention?

A. Well, that's, and other parties to the proceedings, so, so basically they were to give evidence as to the relevant facts supporting the version of events given by Mr Bilaver.

Q. … Given that the deed has them waiving their right to self incrimination the effect of this is that even if they're advised to object they should ignore or disregard … that independent advice?

A. In essence, what it's saying is that they would give pleas of guilty, give the evidence of the relevant facts and admissions, … and … in consideration of that then the prosecutor wouldn't seek any penalty against them. … [T]hat's clear from the provisions themselves, from the provisions of this proposed agreement which in the end wasn't signed or accepted.

Q. You've just said that it's in exchange for them, if they do those things you've set out, give that proposed evidence, enter a plea of guilty, in exchange for that no penalties would be sought by the prosecutor?

A. Yes.

Q. That's the idea?

Q. … [P]aragraph 11 talks about or commences with a discussion of the prosecution in relation to the Carbone parties and then towards the bottom of that page it says,

"The commencement of criminal proceedings against Charlie Boutros would also provide him the necessary incentive to cooperate with the clients in given evidence as to facts relevant to successful convictions against the other offenders if that becomes necessary. This is because it would be within the power of the clients as the prosecutor to hold out to Mr Boutros the incentive of not prosecuting him and his business for his cooperation."

…

Q. Given what you've just said about you were seeking to have the Boutros parties plead guilty and then there'd be no penalties sought, is it the case that this - there was some evolution between the time of your advice and the provision of the deed so that you were no longer holding an incentive of no prosecuting the Boutros parties instead you were holding an incentive of not seeking penalties in respect of the Boutros parties?

A. Yes so the words "but if that becomes necessary" were included on the - in the hope because the most important thing to the client was that the soil be removed, so the intention was that hopefully a settlement would be achieved.

Q. Yes.

A. And the question of so was there an evolution, yeah because see at the time the advice was written obviously proceedings had not begun and we were not clear at all as to what the position of the, of the - of the proposed defendants would be and then by the time of trying to speak to Charlie Boutros it then came - we then came to the view well, if he gives supportive evidence what should be given in return and, and therefore the terms are different in the agreement which was proposed and it was really a question, there was a lot more uncertainty in the advice as to what the reaction would be. So, so I supposed there was that evolution.

Q. There was that evolution.

A. Yeah.

Defendants’ notices of motion

72. The Defendants submitted that abuse of process arises because all the charges have been commenced for an improper purpose(s).

Fourth and Fifth Defendants

73. The Court should hold that proceedings against Mr and Mrs Carbone have been brought for an illegitimate and collateral purpose. Alternatively the use of the Court’s procedures if the prosecutions continue would bring the administration of justice into disrepute. A permanent stay should be granted.

74. The evidence supports a clear finding that the prosecutions have been brought as a collateral mechanism to place pressure on Mr and Mrs Carbone and Futurepower to favourably resolve a commercial dispute to the benefit of M&S. The evidence also makes good that M&S wishes to divest its interest in the property and/or to cause other parties to pay the costs associated with the remediation allegedly needed before acquiring complete ownership of the property.

75. The Court should be comfortably satisfied that this inference of improper purpose should be drawn as:

76. Mr Bilaver’s oral evidence is clear as to why the prosecutions were commenced;

77. M&S via Mr Bilaver had been on notice about the presence of the soil on the property since 2016. It made no complaint about its placement on the property (to the LCC) at the time and in fact defended and justified its presence in both 2018 and 2019;

78. M&S’ position in relation to the soil on the property in 2018 and 2019 (namely, that it was not waste or otherwise contaminated and was to be used for roadworks) is fundamentally inconsistent with the position it has taken in these proceedings;

79. Mr and Mrs Bilaver want to extricate M&S from the property and maximise M&S’ commercial position in relation to the property. Mr and Mrs Carbone have not come to terms with them. A sticking point is the presence of the soil on the property. M&S wants the property sold but has formed the view that this cannot be done in a commercially sensible way until the soil is removed;

80. Mr and Mrs Bilaver want Mr and Mrs Carbone to arrange at their expense for the soil to be removed;

81. These proceedings were a means to compel Mr and Mrs Carbone to do this by the device of holding the prospect of criminal sanction over their heads;

82. The proceedings would only need to be prosecuted to conclusion if that becomes necessary, for example if the existence of the proceedings was insufficient to compel Mr and Mrs Carbone to arrange for the soil to be removed.

83. Criminal proceedings were not the only avenue for M&S to have resolved the dispute. Part 8.4 of the POEO Act provides a wide range of remedies as part of Class 4 proceedings. The continual referral to obtaining orders that Mr and Mrs Carbone personally pay for any remediation supports the contention that the criminal proceedings are being used for an improper purpose. The prosecutions are not being used as a means for determining whether criminal offences have been committed and appropriately imposing penalties if they have.

84. The evidence also demonstrates a clear breach of prosecutorial duties. A private prosecutor should be bound by the Office of the Director of Public Prosecution Prosecution Guidelines (ODPP Guidelines). The draft agreement proffered by M&S to the Boutros Defendants was to provide the same benefit that is provided by an immunity indemnity. There is no recognised basis for M&S to offer, let alone grant, such an indemnity as part of proposed or commenced criminal proceedings as a ‘private prosecution’, see ODPP Guidelines cl 11.4. The improper purpose is also emphasised by the conduct of M&S towards the Boutros Defendants and is antithetical to prosecutorial duties.

85. Mr Carbone on behalf of himself and Mrs Carbone made oral submissions seeking to abort the purported impact of the soil deposited in 2016. The 20 November 2018 letter drafted on behalf of M&S and Futurepower stated that the soil was moved to the property in 2016 with Council’s knowledge and without a challenge based on it being contaminated. The attached documents included a geotechnical report from GDK dated 4 July 2017, environmental reports from Pacific Environmental Australia Pty Ltd dated 17 August and 15 September 2015 and laboratory testing samples from Australian Safer Environment Technology dated 15 September 2015. None of the samples taken detected asbestos. The letter and attached documents demonstrate that the soil was validated in 2016 and this was accepted by LCC on several occasions.

86. The 13 May 2019 letter from Mr Zipkis to LCC asked LCC to refrain from issuing any notice regarding the stockpile soil which ‘from the contents of the [20 November 2018] letter from Barclays Law Group, would appear to pose no environmental or other danger which requires immediate remedial attention’. What is being put by M&S in these proceedings is incongruent with the contents of the letter where M&S in effect accepted that the soil was not contaminated.

87. The Aargus report relied on by M&S was prepared without a proper brief. It has no site history and does not consider the environmental reports provided to LCC referred to above in [78]. Mr Zipkis admitted in his affidavit dated 27 January 2022 that the report is inadmissible.

88. It is not the case that M&S has been unable to sell or develop the property because of the soil. LCC has consistently accepted the soil as not requiring clearance or removal. An email dated 22 May 2019 from Mr Caraballo LCC manager to Mr Bennett LCC coordinator building and compliance confirmed that fill on the site would be exempt development under the S**tate Environmental P**lanning P**olicy (Exempt and Complying Development Codes) 2008 (NSW) and that a DA or construction certificate was not needed for the soil’s placement. As Mr Bilaver confirmed in cross-examination neither the LCC nor the EPA has taken further action against M&S requiring the soil to be removed.

89. Mr Bilaver admitted it was necessary for part of the neighbouring property to be dedicated by Mr Juvesconi for Browning Road before any stage 3 subdivision development could occur. He confirmed that an agreement has never been reached with Mr Juvesconi. There were other impediments to development of the property other than the placement of the soil.

90. Mr Bilaver confirmed in cross-examination that a contract for sale was prepared in 2024 and the property was going to be listed for auction but was subsequently withdrawn. Mr Bilaver’s evidence was that he has not made other attempts to sell the property. There is evidence that Mr Bilaver made two attempts to buy the half share of the property from the liquidator for Futurepower, as admitted by Mr Bilaver in cross-examination. The 23 March 2021 letter from Mr Zipkis to the liquidator for Futurepower notes M&S’ interest in holding discussions with a view to acquiring the co‑owner’s interest.

91. Mr Bilaver’s oral evidence was that he was unhappy about the soil and did not want it to remain on the site. M&S have instigated criminal proceedings over a civil dispute between two co-owners which is confirmed by Mr Bilaver referring to the fill as ‘unauthorised soil’ rather than waste. Mr Bilaver’s concern was not that the soil was contaminated but that it was unauthorised and he wanted it removed.

92. Mr Bilaver’s oral evidence was that the decision to prosecute the Defendants was made by M&S’ counsel Mr Tripodi, that Mr Tripodi drafted the summonses and that he decided which parties were going to be prosecuted. Mr Bilaver agreed there could be an increase in value of the land if he could force the removal of the soil. Mr Tripodi in cross-examination stated that it was not necessarily intended for M&S to obtain a final hearing or conviction, but that it was hoped that a proposed settlement could be reached with all the Defendants.

93. The documents produced on subpoena by LCC disclose a lengthy engagement with the property. Ultimately the Council, and the EPA, have not pursued further enforcement action. The photo of the truck taken on 24 July 2017 shows that additional material has been brought to the property since 2016.

94. In reply, the assertion that there has been collusion between the Defendants has no evidentiary foundation, is entirely speculative and is irrelevant. No proper basis that Mr or Mrs Carbone’s notices of motion are an abuse of process has been established.

Boutros Defendants

88. The Boutros Defendants adopted the submissions of Mr and Mrs Carbone. If the Court accepts the submissions of Mr and Mrs Carbone in respect of an improper collateral purpose then it would follow that prosecution of the Boutros Defendants is also an abuse of process. Even if the Court were to find that the collateral purpose in respect of Mr and Mrs Carbone does not amount to an abuse of process the Court would still find that the prosecution against the Boutros Defendants is an abuse of process as there is an additional improper collateral purpose of pressuring Mr Chalita Boutros to give evidence in the proceedings against Mr and Mrs Carbone. M&S is seeking to engage criminal proceedings including potential for heavy fines if convicted to compel a natural person to give evidence M&S wants them to give.

89. This purpose can be inferred from the following evidence:

90. The 26 March 2021 letter from Mr Zipkis to LCC which shows that attempts were made by M&S in 2020 and early 2021 to secure evidence from Mr Chalita Boutros which supported Mr Bilaver’s version of events;

91. The advice of Mr Tripodi which recommended charges against the Boutros defendants as an ‘incentive’ to secure Mr Chalita Boutros’ ‘cooperation’. Mr Tripodi specified in his advice what the effect of Mr Chalita Boutros’ evidence should be;

92. The 2 September 2021 letter attaching the draft agreement which stated that the agreement is ‘in relation to the provision by you of an affidavit supporting our clients*’* case’ (emphasis added);

93. The terms of the draft agreement itself, which sought to bind the Boutros Defendants to support any steps taken by M&S in the proceedings and in separate civil proceedings. The draft agreement also provided that the Boutros Defendants would waive their right to object to evidence on any grounds including legal professional privilege or the privilege against self-incrimination.

94. Mr Zipkis in his affidavit dated 6 September 2023 made an express admission as to the collateral purpose stating that the advice of Mr Tripodi ‘[e]vinced a typical prosecution strategy of providing an incentive to a material witness for his cooperation with the prosecution’. This is not a ‘typical prosecution strategy’. The ODPP Guidelines at cl 11.4 state that only the Attorney General may grant an immunity to a witness which is usually conditional on that informer giving truthful evidence. There is no mention of any condition that if an informer gives evidence that is favourable to the prosecution, that they waive their rights to legal professional privilege or the privilege against self-incrimination, or that a witness may be prosecuted in order to secure their cooperation. Clause 2.2 of the ODPP Guidelines states that a prosecutor must fairly assist the court to arrive at the truth and seek impartiality, and to have the whole of the relevant evidence before the court and is similarly reflected in the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barrister Rules) at r 83.

95. Clause 2.3 of the ODPP Guidelines provides that a prosecutor must call all witnesses whose evidence is relevant and admissible or who the prosecutor believes on reasonable grounds could provide relevant evidence.

96. This is not a case of a prosecutor attempting to assist the court by ensuring a material witness give evidence. If that were the case M&S would have called Mr Chalita Boutros and have him give evidence in a Basha hearing (see R v Basha (1989) 39 A Crim R 337). M&S has acted in a way which is antithetical to placing relevant evidence before the Court. Charging the Boutros Defendants as co-accused means they are not compellable to give evidence, Evidence Act s 17(3).

97. In reply, Spautz is not authority for the proposition that if the remedy being sought is one that is known to criminal law then it cannot be an abuse of process. Nor is Spautz authority for the submission that if a prosecutor intends to prosecute the proceedings to a conclusion then it is not an abuse of process. The oral evidence from Mr Tripodi was that prior to commencement of proceedings the motive was to use the threat of prosecution to compel evidence supporting the prosecution case. By the time M&S sent the draft agreement the intention was that they would not seek any penalties at the finality of the proceedings. Throughout this evolution the purpose of the prosecutions to use the criminal process to apply pressure on the Boutros Defendants to give favourable evidence, which is what the Court is concerned with, remained the same.

98. The Prosecutor’s notices of motion should be dismissed to the extent it follows from the outcome of the Defendants’ notices of motion.

Prosecutor’s notices of motion/response to Defendants’ notices of motion

95. M&S seeks orders that the Defendants’ notices of motion be permanently stayed as an abuse of process, or alternatively, an order that those motions be dismissed.

96. The evidence of Mr Zipkis and Mr Bilaver corrects the misrepresentations made by Mr Carbone in the 20 November 2018 letter which are submitted by Mr and Mrs Carbone to have been adopted and made, impliedly, on instructions by M&S. To the contrary as this evidence, along with Mr Bilaver’s affidavit sworn 26 March 2021 (and 6 September 2021) shows, at all material times M&S was either diametrically opposed to or not in a position to know about the subject matter of the representations made by Mr Carbone in his letter to LCC concerning the use to be made of the soil and waste deposited on the subject property by the Defendants (to which it was always opposed), or its contamination status, respectively.

97. Given the nature of the many misrepresentations made by the Defendants (the 20 November 2018 letter), as must have been apparent to them from the outset, or otherwise as corrected by Mr Zipkis and Mr Bilaver in their affidavits sworn 6 September 2023, both the Defendants and legal representatives for those Defendants must have known or otherwise now know that the Defendants’ cases asserting abuse of process in fact make out the grounds referred to in paragraphs 9-10 of Mr Zipkis’ affidavit dated 6 September 2023. Those grounds are that the Defendants have colluded and their motions are an abuse of process without reasonable grounds, untenable, vexatious and harass M&S with the improper purpose of delaying the prosecutions and bringing the administration of justice into disrepute.

98. The Defendants’ motions violate the ethical duties of the legal representatives of the Defendants, including Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) rr 3, 5, 21.1 and 21.3 (concerning responsible use of court proceedings inter alia) (Solicitor Rules), and Barrister Rules rr 23, 60 and 64 (concerning the duty to the court to act with independence in the interests of the administration of justice, responsible use of court processes inter alia).

99. In accordance with Spautz, M&S’ case is not an abuse of process because the remedies sought are legitimately within the scope of the criminal process employed being a fine and orders for restoration under s 245 of the POEO Act. That civil remedies are available is irrelevant. Mr Tripodi’s advice simply reflects what was being sought by M&S being the removal of the soil. Seeking to have the soil removed is a legitimate remedy and is not trying to achieve an illegitimate or improper commercial advantage.

100. The Defendants’ claims are without reasonable grounds and they are unable to establish their case even on a prima facie basis, Spautz at 522 (Mason CJ, Dawson, Toohey and McHugh JJ). The Court’s processes are being employed to cause improper vexation and oppression being to delay the M&S’ case in circumstances where the claims made by the Defendants have no possibility of success, Spautz at 520 (Mason CJ, Dawson, Toohey and McHugh JJ), Batistatos at [12]-[15] (Gleeson CJ, Gummow, Hayne and Crennan JJ).

101. Nothing set out in the draft agreement sent to the Boutros Defendants came to pass and M&S’ proceedings against all the Defendants are extant, will proceed to verdict and sentence, and are supported by direct evidence. In these circumstances there can be no improper or collateral purpose constituting an abuse of process by M&S.

102. There is no evidence before the Court to suggest that M&S did not intend to bring the criminal proceedings to conclusion, cf Spautz at 522 (Mason CJ, Dawson, Toohey and McHugh JJ). The mere fact that there was a hope for settlement does not suggest there was not an intention to bring the proceedings to finality.

103. As nothing came from the draft agreement, it cannot be said that any pressure was exerted on Mr Chalita Boutros. Further an email attaching the draft agreement strongly advised that Mr Chalita Boutros obtain his own legal advice.

104. Mr Tripodi adopted Mr Zipkis’ affidavit of 6 September 2023 at paragraphs 11-39 (noting that paragraph 16 was admitted as evidence) as submissions. Mr Zipkis stated that in his opinion the Boutros Defendants misrepresented Mr Tripodi’s advice summarised above in [48] by seeking to link statements in the introduction with paragraph 11 of the advice as he considered there is no such connection intended between these parts of that advice. It cannot be said that in taking on the financial burden of commencing private prosecutions M&S was seeking to extricate itself from the property and its associated problems. The criminal proceedings were necessary in all the circumstances referred to in Mr Tripodi’s advice. The orders sought in the summonses against the Boutros Defendants are aimed at restoring the property and punishing the offenders in accordance with the law. Mr Bilaver only became aware of any asbestos contamination in the stockpile on or around 30 August 2019. When Mr Bilaver gave instructions to Mr Zipkis to act on M&S’ behalf he gave instructions inconsistent with any claims in Mr Carbone’s letter dated 20 November 2018 (see above in [29] and [48]). The letter written by Mr Zipkis dated 13 May 2019 (see above in [53]), submitted by the Defendants to adopt the 20 November 2018 letter, contained qualified language which made clear that the representations by Mr Carbone in his letter were his own. Mr Zipkis was never given instructions to the effect that it was the position of M&S that the soil on the property was to be used for stage 3 of the subdivision nor that the stockpile was contaminated.

105. The draft agreement (see above in [46] and [56]-[57]) was not using the prospect of criminal proceedings against the Boutros Defendants as leverage. The draft agreement presupposed that prosecution of the Boutros Defendants would be commenced and continued through to conviction.

106. In the same affidavit Mr Zipkis stated that the submissions of Mrs Carbone also misrepresent the 13 May 2019 letter to LCC (above in [53]) in not taking into account its qualified language. Similarly in relation to Mr Carbone’s submissions Mr Zipkis submitted that he used qualified language in the 13 May 2019 letter and the letter to Futurepower dated 20 May 2019 (see above in [34]) because the conclusion and representations made by Mr Carbone in the 20 November 2018 letter were his own and did not represent instructions given to Mr Carbone by Mr Bilaver on behalf of M&S. Mr Zipkis asserted there is no evidence that M&S had any knowledge of the contamination status of the waste stockpile coming from Lot 33 Jardine Drive Edmondson Park which was owned and managed by Mr and Mrs Carbone at the time.

107. The Aargus report found asbestos contamination and was tendered before the judge on 11 September 2021 who gave leave to commence the asbestos waste charges. According to M&S, pursuant to s 219 of the POEO Act the evidence only needs to make out a prima facie case and an expert report does not have to be in admissible form at that stage.

108. The Defendants assert that the negotiations referred to in Mr Tripodi’s advice between the co‑owners of the property and adjoining owner Mr Juvesconi ‘in regards to the possible sale or transfer of the jointly owned subject property or Juvesconi’s property’, which have in effect failed, are still on foot and provide ‘a collateral and improper purpose’ for the commencement of the proceedings. These discussions have been inconclusive, did not reach any agreement and are not relevant to the ultimate issue before the Court of improper collateral purpose.

109. The ODPP Guidelines do not apply to private prosecutions. Private prosecuting counsel are held accountable through ethical duties to the court and by the application of the Barrister Rules.

110. There is no factual basis underpinning the Defendants’ notices of motion and they have no prospects of success.

Finding on Defendants’ notices of motion – improper purpose established

Principles relevant to abuse of process

111. The power to stay proceedings whether civil or criminal resulting from an abuse of process arises from the inherent power of a court to protect its own processes and safeguard the administration of justice, Strickland (a pseudonym) v Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 at [113] (Gageler J) cited in Victoria I**nternational Container Terminal Ltd v Lunt (2021) 271 CLR 132; [2021] HCA 11 (Lunt) at [19] (Kiefel CJ, Gageler, Keane and Gordon JJ). A prosecution brought for a collateral improper purpose can amount to an abuse of process so as to justify a permanent stay including where the prosecution has a prima facie case, Spautz at 522 (Mason CJ, Dawson, Toohey and McHugh JJ). The parties did not dispute that the Court has the power to order a stay as a superior court of record.

112. The heavy civil onus of proof borne by the Defendants is identified above in [9]. As already noted above, the factors in s 140(2) of the Evidence Act which a court must take into account, without limiting other matters, are the nature of the cause of action, the nature of the subject-matter of the proceeding and the gravity of the matters alleged. The allegation of improper purpose of these multiple prosecutions is a serious one.

113. The categories of what constitutes an abuse of process are not closed, R v Carroll (2002) 213 CLR 635; [2002] HCA 55 at [47] (Gleeson CJ and Hayne J), confirmed again more recently in PNJ v R (2009) 83 ALJR 384; [2009] HCA 6 at [3] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) (PNJ) as quoted in Lunt at [14] (Kiefel CJ, Gageler, Keane and Gordon JJ). Many cases of abuse of process will exhibit at least one of three characteristics: the invoking of the court’s processes for an illegitimate or collateral purpose, the use of the court’s procedures would be unjustifiably oppressive to a party, or the use of the court’s procedures would bring the administration of justice into disrepute, Rogers v R (1994) 181 CLR 251; [1994] HCA 42 at 286 (McHugh J) quoted in Batistatos at [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ), PNJ at [3] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ), Lunt at [14] (Kiefel CJ, Gageler, Keane and Gordon JJ).

114. In criminal matters a court must balance public interest factors such as the need to ensure that an accused receives a fair trial, the need to hear and determine charges for serious offences and the need to maintain confidence in the administration of justice, Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 396 (Mason CJ, Deane and Dawson JJ), Jago at 30 (Mason CJ), 60-61 (Deane J).

115. To the extent there is any consideration of private prosecutions in Australia, in Price v Ferris (1994) 34 NSWLR 704 criminal proceedings which were commenced by a police inspector as a private prosecutor were ‘taken over’ by the DPP pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW). Kirby P said (at 706):

…the purpose of [the DPP ‘taking over’ private prosecutions] is to ensure that there is manifest independence in the conduct of the prosecution. It is to avoid the suspicion that important prosecutorial discretions will be exercised otherwise than on neutral grounds. It is to avoid the suspicion, and to answer the occasional allegation, that the prosecution may not be conducted with appropriate vigour.

116. It is also helpful to consider the majority of the High Court in Batistatos at [8] (Gleeson CJ, Gummow, Hayne and Crennan JJ) which stated:

[8] A further distinction must now be drawn. It is accepted that the inherent power [to prevent abuse of process] identified by Lord Diplock applies to both civil and criminal proceedings. However, the power does so with somewhat different emphases attending its exercise. In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings. Their Honours said:

“The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.”

These considerations are not present with the same force in civil litigation where the moving party is not the State enforcing the criminal law. Earlier, in Jago v District Court (NSW), Mason CJ had observed:

“[T]he criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context.”

117. In Spautz at 526-7, Mason CJ, Dawson, Toohey and McHugh JJ stated (footnotes omitted):

To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.

Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent’s conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour.

It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.

118. In Spautz the plaintiff/prosecutor’s commencement of criminal defamation proceedings against various university employees inter alia was found to be improper in that the proceedings were brought to apply pressure on the university to reinstate the plaintiff/prosecutor to his former position. The commencement and maintenance of the proceedings were found by the majority to have been undertaken predominantly to that end, at 530-531 (Mason CJ, Dawson, Toohey and McHugh JJ) and 537-538 (Brennan J).

119. This passage was quoted in Lunt at [23] (Kiefel CJ, Gageler, Keane and Gordon JJ) in the context of considering the plaintiff’s purpose in bringing a challenge to an enterprise agreement which would benefit the union of which he was a member. The High Court agreed there was no improper purpose in the circumstances of that case. The above passage was particularly relied on by M&S as its legal representatives submitted it intends to pursue the criminal prosecutions to finality and seeks remedies being the removal of soil which are within the scope of the orders available in these criminal proceedings. M&S rejects the proposition that the prosecutions are commenced for an improper purpose. As the Defendants submitted, the passage in Spautz should not be considered in isolation. Rather consideration of the overall purpose in bringing these multiple criminal proceedings is necessary and as Spautz held the predominant purpose of the proceedings must be identified.

120. The proper role (in contrast to improper role) of a prosecutor is generally considered in the context of public prosecutions (see for example Chris Corns, Public Prosecutions in Australia (2014, Thomson Reuters)). The question arises of whether these prosecutions are being used to determine if criminal offences have been committed and to seek the imposition of appropriate penalties or are motivated by a collateral improper purpose as the Defendants allege.

121. The allegations of improper purpose arise in relation to the commencement of multiple private prosecutions enforcing environmental legislation which is considered to be public law directed to the protection of the community from environmental harm. Apart from possibly criminal contempt proceedings, I am not aware that a private prosecution under such laws has ever been commenced in the Court. Criminal charges in the Court are generally commenced by public authorities seeking to enforce environmental laws as is their public duty and causation of environmental harm is usually a key consideration. One reported case of a private prosecution in an environmental context, Kingscote District Council v Kangaroo Island Eco Action Inc (No 1) (1996) 92 LGERA 117, was an appeal to the Supreme Court of South Australia from a decision of a magistrate convicting the defendant district council of breaches of the Native Vegetation Act 1991 (SA) in the course of roadside clearance of trees. Debelle J identified at 118 that the respondent was an incorporated association concerned about ecology and environmental issues, which gives rise to an inference that was the motivation for bringing the proceedings. That private prosecutions of public environmental laws appear to be rare is not probative of whether these multiple proceedings have been commenced for an improper purpose. It does however provide context for the issue of improper purpose as the purpose of prosecutions by a public regulator is generally to achieve a criminal conviction in order to protect the public from environmental harm inter alia.

122. The Defendants submit the prosecutions are an abuse of process because they are intended to: exert pressure on Mr and Mrs Carbone to remove the soil from the property or otherwise reach a commercial arrangement with M&S in relation to the development of the property; exert pressure on Mr Chalita Boutros to cooperate with M&S in return for M&S not prosecuting him or his business; and exert pressure on Mr Chalita Boutros to cooperate with M&S in return for not seeking relief against him and his businesses in the proceedings. The Defendants adopted each other’s submissions on the basis that if I find improper purpose established on any of these bases the prosecutions against all of them should be permanently stayed.

123. Considering the above principles in relation to these multiple matters, M&S a private company has commenced multiple criminal proceedings against multiple Defendants under the POEO Act. Mr Bilaver, the director of M&S, had a business relationship with Mrs Carbone as the two are joint owners of the property through their respective companies. The companies undertook a subdivision development for which they had consent from LCC and the property is the residue of that development where it was intended that further subdivision would occur in stage 3. Mr Bilaver discovered soil he considered to be unlawful being placed on the property between September and November 2016 without his agreement. Mr Chalita Boutros told Mr Bilaver he was paid to place that soil by Mr Carbone. When Mr Bilaver discovered this he was angry about it and sought unsuccessfully to have Mr Carbone remove it. Futurepower as co-owner of the property was not excluded from entering or dealing with it. That former business relationship informs the specific events and actions relied on by the Defendants.

Fourth and Fifth Defendants

Oral evidence of Mr Bilaver

124. The oral evidence of Mr Bilaver the director of M&S extracted above in [62] provided direct evidence for the first time of the reason why he sought to have criminal proceedings against Mr and Mrs Carbone commenced by his company, namely that he wanted the soil which Mr Carbone caused to be placed on the property in 2016 removed. When asked in cross-examination by the Boutros Defendants’ counsel why Mr and Mrs Carbone were prosecuted, Mr Bilaver said so that they would remove at their expense the soil he considered to be unauthorised on the property. That was the main reason he sought to commence criminal prosecutions. Mr Bilaver told his solicitor Mr Zipkis that he wished to prosecute Mr Carbone for that reason as he did not have another option as all his attempts at negotiating with Mr Carbone had failed. Mr Bilaver obtained advice proposing such an approach in the written advice from Mr Tripodi.

125. Mr Bilaver in cross-examination stated that he was happy for his solicitor Mr Zipkis to make decisions about his case and that Mr Zipkis decided what to do. Mr Bilaver could not recall the 26 March 2021 letter to the General Manager of LCC seeking its assistance in gathering evidence.

Mr Tripodi’s written and oral evidence

126. Mr Tripodi gave written advice to M&S which was disclosed to former solicitors acting for one of the Defendants and in evidence before me, summarised above in [54]. The instructions included reference to the refusal of Mr Carbone to remove the soil stockpile and the advice identified the continuing presence of the stockpile being an obstacle to both the development of the property and its sale, even by way of a s 66G Conveyancing Act application.

127. Mr Tripodi submitted before me that he simply acted on instructions which he set out in his advice and that the Defendants cannot rely on these matters because they are second hand hearsay. While Mr Tripodi acted on instructions, at issue and the focus of the Defendants’ arguments is his advice based on those instructions. The advice stated that there should be efforts to ‘spur’ LCC to commence criminal proceedings against Mr and Mrs Carbone and Futurepower or have LCC assist M&S to commence criminal proceedings against Mr and Mrs Carbone and Futurepower. As LCC apparently decided to take no action, M&S had to look at their legal options to force the ‘offenders’ to remove the soil. The refusal of Mr Carbone and Futurepower to remove the soil stockpile and the continuing presence of the stockpile provided an obstacle to the development of the land and its sale. The commencement of criminal proceedings was also necessary as, on the facts, these would likely provide the best chance of compelling the removal of the soil at the expense of Futurepower in addition to Mr and Mrs Carbone personally. That was the express advice of Mr Tripodi as contained in the clear terms of his written advice.

128. I note that in the untested affidavit of Mr Zipkis sworn 6 September 2021 in paragraphs that were considered to be submission, Mr Zipkis purported to provide an interpretation of Mr Tripodi’s advice to the effect that the introductory recitation of instructions was not linked to paragraph 11 which contains the significant advice to commence criminal proceedings against Mr and Mrs Carbone and the Boutros Defendants. As a plain reading of the written advice is available that attempt to construe it is not accepted.

129. Mr Tripodi gave oral evidence as extracted above in [71]. He was cross-examined by Mr Wilcox counsel for the Boutros Defendants and that evidence was adopted by Mr Carbone. I consider Mr Tripodi’s oral evidence in more detail in relation to the Boutros Defendants below.

130. Additional written statements referred to by Mr and Mrs Carbone in Mr Zipkis’ affidavit dated 7 September 2021 stated that the prosecutions were to protect his client’s commercial interests and a letter of particulars dated 6 December 2021 he provided to former solicitors of Mrs Carbone stated that the dumping of the soil ‘has had the effect of degrading the environment, in that it has prevented, or, is preventing, the development and sale of the subject property.’ The 26 March 2021 letter from Mr Zipkis to the General Manager of LCC stated that the dumping of the stockpile of landfill had reduced the market value of the property and also given rise to loss due to the incapacity to develop the subject property.

131. The direct evidence of Mr Bilaver which was not available to Mr and Mrs Carbone previously, the written advice of Mr Tripodi and additional written statements identified immediately above are highly probative of the reason why the offences against them were commenced, namely so that they will feel pressured to remove the soil at their expense.

Circumstantial case presented by Fourth and Fifth Defendants

132. The otherwise circumstantial case of Mr and Mrs Carbone will now be addressed.

133. Mr and Mrs Carbone relied on numerous events that occurred from around September 2016 up to the commencement of proceedings in 2021 to argue the purpose of the multiple prosecutions was improper in the absence of direct evidence about this from Mr Bilaver in particular. Given their reliance on circumstantial evidence Mr and Mrs Carbone needed to prove the more probable inference from established intermediate facts and admissions if any was that the predominant purpose of the prosecutor as they allege is improper.

Conduct of Mr Bilaver and his solicitor

134. Turning to the events set out in the section above in [23]-[47] which followed Mr Bilaver discovering the soil placed without his agreement on the property in 2016, the 20 November 2018 letter to LCC from Mr Carbone purporting to act for M&S and Futurepower identified that the soil deposited was clean, supported by expert reports to that effect. The letter stated that the soil was placed to enable completion of stage 3 of the subdivision development approved by LCC and that LCC was aware of its placement.

135. The 13 May 2019 letter sent by Mr Zipkis, by then employed by M&S as its solicitor, to LCC refers to the 20 November 2018 letter and essentially adopts its contents to the effect that the soil was placed there for use in future earthworks and is clean. The letter also asked LCC not to take regulatory action as M&S was trying to sell the land. Mr Zipkis stated in his lengthy affidavit dated 6 September 2023 that the adoption of the 20 November 2018 letter was qualified with paragraphs 20-22 making submissions about the use of qualified language in the letter. The submissions are difficult to attribute any weight to. Mr Zipkis was unexpectedly ill during the hearing and could not appear to be cross-examined about them. Strictly speaking as these are submissions this would have been unnecessary.

136. Mr Bilaver in his oral evidence extracted above in [62] could not recall the 13 May 2019 letter from Mr Zipkis sent on his behalf. Mr Bilaver also gave oral evidence that Mr Zipkis his solicitor could act on his behalf and make decisions relating to the case and that Mr Zipkis decided what to do.

137. Mr Zipkis in his 6 September 2021 affidavit at paragraphs 25, 29 inter alia also purported to give evidence about what his client did or did not do, to the effect that he had not received instructions that Mr Bilaver had agreed to Mr Carbone sending the 20 November 2018 letter on behalf of M&S or that Mr Bilaver agreed that the soil on the property was to be used for stage 3 of the subdivision development. These statements were also read as submissions and once again are difficult to attribute weight to. If accepted they underscore the extent of the commercial disagreement between the M&S’ director and the Fourth and Fifth Defendants.

138. The 13 May 2019 letter can be considered on its own terms as an expression of M&S’ view about the soil on the property at that time as expressed through its solicitor. No complaint was made to LCC about its placement in 2019. M&S’ position in commencing these criminal proceedings is inconsistent with its position then.

Dealings with property by Mr Bilaver

139. Mr Carbone also sought to demonstrate through cross-examination of Mr Bilaver summarised above in [63]-[70] that M&S continued to seek to gain commercial advantage from the property after the soil was placed relying on:

(a) the 23 March 2021 letter sent by Mr Zipkis on behalf of M&S to the liquidator for Futurepower seeking to purchase the property at a reduced rate; (b) an offer to buy Futurepower’s interest in January 2022 – Mr Bilaver could not recall for how much when Mr Carbone put to him he offered $50,000, and (c) an attempt by Mr Bilaver to sell the property at auction in 2024 which did not proceed, as he identified in cross-examination when shown an unexecuted contract for sale.

140. Mr Bilaver’s oral evidence was that he could not recall the 23 March 2021 letter sent by Mr Zipkis on his behalf to the liquidator or whether he had given instructions for it to be sent on behalf of M&S. He agreed that he did put the property up for sale in 2024 but withdrew it from auction. Mr Zipkis also wrote on 20 May 2019 to Futurepower offering to sell M&S’ interest in the property to Futurepower for $600,000.

141. The written and oral evidence considered above suggests that Mr Bilaver on his own or through his solicitor continued and continues to seek to deal commercially with the property.

142. The placement of soil on the property was not the only impediment to its development according to Mr Carbone. Mr Bilaver was cross-examined about unsuccessful negotiations with a neighbour Mr Juvesconi concerning the provision of land to enable an access road to be built to the property. This was submitted to be required for stage 3 of the approved development to proceed and therefore an impediment to its development, as appears to be the case. Mr Bilaver’s oral evidence was that Mr Juvesconi would not discuss the matter with him.

Presence of contamination

143. According to the 20 November 2018 letter sent by Mr Carbone on behalf of M&S and Futurepower as their solicitor, at the time soil was deposited on the property in 2016 consultants’ reports from Pacific Environmental Australia Pty Ltd inter alia stating that it was uncontaminated had been obtained and those reports were provided to LCC with the 20 November 2018 letter. These reports were not provided to the judge considering the application pursuant to s 219(1) of the POEO Act in September 2021.

144. Mr Bilaver in oral evidence referred to unauthorised soil being deposited in 2016. Evidence alleging the deposition of soil contaminated by asbestos was the Aargus report dated 30 August 2019. That report found the presence of asbestos in one of five places sampled on the property. While presented to the judge at the time an application was made pursuant to s 219(1) of the POEO Act, this report was not prepared in accordance with the expert witness code of conduct and lacks a site history. Mr Nguyen’s affidavit dated 29 October 2024 and Mr Zipkis’ affidavit dated 27 January 2022 referred to M&S needing to obtain an expert report in admissible form to support the prosecutions. The Martens report dated July 2023 attached to Mr Nguyen’s affidavit dated 29 October 2024 is highly critical of the Aargus report.

145. As I understand the following evidence, Mr Carbone was seeking to establish that further soil was placed on the property after 2016 which could be the source of contamination. Mr Bilaver gave evidence that he and his wife took steps to stop further soil being deposited on the property. Mr Carbone submitted to him that further soil unrelated to the soil deposited in 2016 was placed on the property referring to a call to LHH surveyors from an LCC officer raising concerns about the dumping of further material on the property since 2016. Mr Bilaver could not recall being contacted by the surveyors about that call from LCC. A photo taken in July 2017 included in the subpoenaed documents produced by LCC shows a truck on the premises undertaking earthworks. Mr Bilaver was cross-examined about that photo by Mr Carbone. Mr Bilaver said that the truck used soil deposited on behalf of Mr Carbone to build a barrier.

146. A large bundle of documents subpoenaed from LCC for the period January 2015 to November 2021 was in evidence. An email from LCC officer Mr Monte to LLH, surveyors for M&S and Futurepower, on 25 July 2017 indicated that a construction certificate for development would not be assessed until the ‘illegal fill material’ had been removed from the site. The 26 March 2021 letter from Mr Zipkis to LCC indicated that Mr Bilaver had been told by Mr Monte that no construction certificate would be issued until the soil was removed. In his affidavit dated 6 September 2023 Mr Bilaver recalled knowing from previous dealings with LCC that LCC required the soil to be removed before a construction certificate would be issued. Another internal email sent by LCC officer Mr Caraballo on 22 May 2019 stated that Mr Caraballo had investigated the matter and found that the fill would be exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW). In cross-examination by Mr Carbone Mr Bilaver could not recall seeing this email. He was not aware that documents had been produced by LCC under subpoena. Based on the emails identified in the subpoenaed documents the views of LCC officers about the status of the soil on the property varied. I note that LCC declined to assist in the investigation to support these prosecutions, having been asked to do so by Mr Zipkis.

147. I did not ultimately consider the voluminous material provided under subpoena from LCC for the period January 2015 to November 2021 about the property. It was unnecessary and would require far greater examination of the evidence than feasible in the hearing of the notices of motion to finally resolve what soil was deposited when, where and by whom over that period. The evidence set out above provides further context for the prosecutions in raising the possibility that the source of contamination on the property may be uncertain, in addition to the uncertain legal status of the soil deposited in 2016 according to LCC’s records, and that relevant reports addressing the nature of the soil placed in 2016 were not provided to the judge considering the POEO Act s 219(1) application in September 2021.

Timeframe of events

148. The time over which events have occurred is also relevant context to consider M&S’ behaviour. Mr Bilaver while aware of the soil being placed in 2016 took no action to complain about it to a regulatory authority until 2019. Neither the LCC nor the EPA have taken further enforcement action to achieve removal of the soil since its placement in 2016, as confirmed in Mr Bilaver’s cross-examination and affidavit evidence. The EPA formed the view it was a commercial disagreement according to its record dated 21 October 2019.

Evidence establishes dominant purpose of prosecutions is improper

149. At issue is what is the dominant purpose for the commencement of these criminal proceedings against Mr and Mrs Carbone, as the authorities referred to by the parties and summarised above in [111]-[120] identify. While M&S’ lawyers argued no improper purpose could exist because it was intending to prosecute the charges to their completion and that the remedies it seeks are available under the criminal law, that view is not supported by Spautz.

150. Firstly as to whether the prosecutions would be pursued to finality, Mr Bilaver’s oral evidence is that his principal interest is in having the soil removed by Mr and Mrs Carbone at their expense. Mr Tripodi’s oral evidence in the context of Mr Zipkis assisted by Mr Tripodi communicating with the Boutros Defendants referred to the possibility of settling proceedings if the soil was removed. Mr Tripodi identified that the words ‘if that becomes necessary’ were included in his advice at paragraph 11 as the hope then was that the soil would be removed. He stated that the most important thing to the client M&S was that the soil be removed, identifying that the intention of prosecuting was for that to be achieved. The possibility arises that the proceedings would only need to be prosecuted to conclusion if the existence of the proceedings was insufficient to compel Mr and Mrs Carbone to arrange for the soil to be removed.

151. Secondly the above direct and circumstantial evidence establishes firmly on the balance of probabilities that the prosecutions have been commenced for the improper purpose alleged by Mr and Mrs Carbone. Mindful of the former business relationship for the purpose of subdivision development between M&S and Futurepower;

152. As identified above in [131] Mr Bilaver’s direct oral evidence, the nature of Mr Tripodi’s advice and additional statements by M&S’ legal representatives confirm that the prosecutions are a means to compel Mr and Mrs Carbone to remove the soil placed in 2016 on the property at their expense;

153. M&S via Mr Bilaver or through its solicitor had been on notice about the presence of the soil on the property since 2016. It made no complaint about its placement on the property to the LCC at the time and defended its presence in 2019 in the 13 May 2019 letter sent by Mr Zipkis;

154. M&S’ position as communicated by its solicitors in relation to the soil on the property in 2019 (namely, that it was not waste or otherwise contaminated and was to be used for earthworks) is inconsistent with the position it has taken in commencing these proceedings;

155. Mr Bilaver has sought to deal with the property by way of purchase or sale on several occasions since 2016;

156. M&S wants to improve its commercial position in relation to the property and a sticking point is the presence of the soil on the property.

157. These various actions, events and context support an inference based on direct and circumstantial evidence that Mr Bilaver as a director of M&S has sought and continues to deal with the property for commercial purposes and the prosecutions were commenced to facilitate that purpose. The dominant purpose for the prosecutions of Mr and Mrs Carbone is for an improper collateral purpose of obtaining a commercial advantage by causing action to be taken by Mr and Mrs Carbone in removing soil from the property at their expense by prosecuting multiple public environmental laws.

Boutros Defendants

153. According to Mr Bilaver’s oral evidence in cross-examination by Mr Wilcox extracted above in [62], he did not give instructions to his lawyers to commence prosecution of the Boutros Defendants. He agreed he engaged Mr Zipkis in May 2019. He stated that prosecution of the Boutros Defendants was a decision of his counsel and he did not ever have it in mind. He was happy to leave such decisions to his counsel as he was not a lawyer. Mr Bilaver could not recall the 26 March 2021 letter sent to LCC by Mr Zipkis which sought assistance from LCC in relation to commencing criminal proceedings and referred to trying to get a witness statement from Mr Chalita Boutros. Mr Bilaver agreed that he was happy for Mr Zipkis to make decisions relating to the case without consulting him. Mr Bilaver stated that he did not know Mr Zipkis was contacting Mr Chalita Boutros about giving evidence to support possible prosecutions. When asked expressly if the reason he prosecuted Mr Chalita Boutros was because he wanted him to help with the prosecution of Mr Carbone he stated that prosecution of Mr Chalita Boutros did not come into his mind. He forwarded information to Mr Zipkis and Mr Tripodi and Mr Tripodi decided who to prosecute.

154. In addition to the case presented by Mr and Mrs Carbone, which the Boutros Defendants adopted, the improper purpose particularly argued by the Boutros Defendants concerns the offer sent to them in September 2021 by Mr Zipkis to enter into an agreement on certain terms. The draft agreement is in evidence above in [57]. Paragraph 11 of Mr Tripodi's advice identified that the commencement of criminal proceedings against Mr Chalita Boutros would provide him with the necessary incentive to cooperate in the prosecutions of Futurepower, Mr Carbone and Mrs Carbone by holding out to Mr Chalita Boutros the incentive of not prosecuting him and his businesses for his cooperation. The draft agreement appears to arise from Mr Tripodi’s written advice at paragraph 11 noting that its terms do not precisely reflect what was identified in that paragraph.

155. The draft agreement identifies the Applicant/Prosecutor as M&S, in the context of Supreme Court of NSW proceedings and Land and Environment Court of NSW proceedings. The draft agreement provides that the Boutros Defendants consent to the grant of leave by the Land and Environment Court of NSW to the institution of proposed proceedings against them. The nature of the proceedings is unspecified in paragraph 2. The Boutros Defendants are asked to agree at paragraph 3 that they will not assert or rely upon any right to object on the grounds of admissibility, legal professional privilege or the privilege against self-incrimination, after having been advised of the right to object in relation to any evidence or acts or admissions relevant to the alleged offences by them or other parties to the proposed proceedings. The Boutros Defendants are asked to agree that they will not make any application for costs against M&S. In exchange for the Boutros Defendants jointly and severally adhering to the agreement M&S shall not take any steps in the proposed proceedings seeking the imposition of any monetary penalty or cost order against the Boutros Defendants either individually or collectively.

156. Mr Tripodi also gave direct oral evidence under cross-examination by Mr Wilcox. In his oral evidence extracted above in [71], Mr Tripodi was asked to expand on the nature of the advice given in relation to the Boutros Defendants in light of the draft agreement. His role included drafting some of and settling all of the draft agreement. The intention was that the Boutros Defendants were to give evidence as to the relevant facts supporting the version of events given by Mr Bilaver. Mr Tripodi’s evidence referred to the nature of the indemnity to be offered to the Boutros Defendants changing over time, from firstly offering not to prosecute them if they provided evidence consistent with Mr Bilaver’s evidence, as identified in his written advice, to then undertaking not to press for a penalty if pleas of guilty were entered and evidence was given that supported Mr Bilaver’s evidence (as the draft agreement provides).

157. Mr Tripodi submitted that paragraph 11 of his advice did not give rise to any pressure on the Boutros Defendants because the draft agreement was not executed, there is no evidence that M&S did not intend to bring proceedings to final judgment, and there was no compulsion on the Boutros Defendants to give evidence. An email from Mr Zipkis sent with the draft agreement stating that it was strongly recommended that legal advice be obtained in relation to the draft agreement (extracted above in [56]) does not negate M&S’ intent. Of greater relevance is the intended impact on the Boutros Defendants. I do not accept that these actions demonstrate the Boutros Defendants were not subject to inappropriate pressure to assist in the prosecutions commenced by M&S. The prosecution of the Boutros Defendants is intended to facilitate the case against Mr and Mrs Carbone, noting that other avenues such as a Basha hearing (R v Basha (1989) 39 A Crim R 337) could also have been availed of to obtain their evidence. As the Boutros Defendants’ counsel submitted charging the Boutros Defendants as co-accused means they are not compellable to give evidence.

158. The conclusion of a collateral improper purpose for the criminal proceedings is readily drawn in relation to the Boutros Defendants given the attempt to have them enter into an agreement in the terms identified and in all of the circumstances identified above concerning how they came to be prosecuted in addition to Mr and Mrs Carbone.

159. Further, the prosecutions are unjustifiably oppressive to the Boutros Defendants given the number of charges, the seriousness of the offences pursued and the potential for onerous fines to be imposed in light of the maximum penalties for the various offences. For example the maximum penalty for the s 144AAA offence under the POEO Act is $4 million for a corporation and $1 million for an individual.

Duties of prosecutor’s legal representatives

160. The Defendants submitted that M&S’ counsel did not comply with the ODPP Guidelines and the Barrister Rules in several respects. I also note that M&S alleged that the Defendants’ legal representatives failed to comply with different aspects of the Barrister Rules and the Solicitor Rules, which I do not consider has been established by M&S.

161. The duties required of prosecuting counsel were addressed in argument. The Defendants referred to and sought to rely on the ODPP Guidelines issued under s 13(1) of the Director of Public Prosecutions Act 1986 (NSW) which set out general principles for the initiation and conduct of criminal prosecutions by that public prosecutor. Clause 2.2 of the ODPP Guidelines states that ‘the prosecutor’s principal role is to assist the court to arrive at the truth and to do justice between the community and the accused, according to law and the principles of fairness’.

162. Chapter 11 governs indemnities, undertakings, informers and induced statements. There are two types of immunities, indemnities and undertakings. Clause 11.4 provides ‘[a]n indemnity protects the informer from prosecution in exchange for the informer promising to give evidence against an accused. An undertaking only provides that the evidence given by the informer in court cannot be used against them in criminal proceedings.’ Only the Attorney General can grant an immunity and the Director of Public Prosecutions (DPP) has the function of making a recommendation to the Attorney General. M&S’ counsel disputed that the ODPP Guidelines applied to these private prosecutions because they have not been commenced by the DPP.

163. Mr Tripodi agreed that the Barrister Rules rr 83-95 which set out prosecuting counsel duties do apply to his actions. The duties similarly include assistance to the court to arrive at the truth, to act impartially and to have the whole of the relevant evidence placed intelligibly before the court inter alia, see r 83. Rule 87 identifies a duty of disclosure to an opponent as soon as practicable of all material which could constitute evidence relevant to the guilt or innocence of the accused unless full disclosure would threaten the integrity of the administration of justice.

164. The duties of a prosecutor include the duty to present a case fairly, completely and with fairness to the accused, Nguyen v R (2020) 269 CLR 299; [2020] HCA 23 at [32], [36] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ). The standards required of a prosecutor under the ODPP Guidelines arguably apply in substance regardless of whether they apply formally. The Barrister Rules are broadly similar to the ODPP Guidelines in specifying prosecutor’s duties, with similar provisions applying to solicitors in NSW under the Solicitor Rules r 29.

Application of rules to prosecutor

165. While a secondary consideration to determining that the prosecutions have been commenced for an improper purpose, lack of compliance with the ODPP Guidelines and the Barrister Rules and similar Solicitor Rules is relevant to assessing whether the further conduct of the prosecutions may bring the administration of justice into disrepute. In particular ODPP Guidelines Ch 11 identifies the limited circumstances in which an indemnity against prosecution may be offered to an informer. At one stage M&S through its legal representatives offered an indemnity against prosecution if the Boutros Defendants agreed to provide certain evidence. Doing so was not in conformity with the ODPP Guidelines.

166. The prosecutor’s duty in sentencing matters identified in Barrister Rules r 95 is relevant when considering the appropriateness of the draft agreement whereby M&S proposed not to seek a penalty in exchange for the Boutros Defendants’ co-operation. The prosecutor’s duty considered by the High Court in Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2 (Barbaro) is to the effect that a prosecutor should not make a submission about an appropriate sentence, see [29]-[33] (French CJ, Hayne, Kiefel and Bell JJ). Barbaro confirms that M&S seeking to agree with the Boutros Defendants what sentence would be sought by it is not consistent with the duties of a prosecutor, at [23] (French CJ, Hayne, Kiefel and Bell JJ).

167. Seeking to reach an agreement with a potential defendant that is favourable to the prosecutor’s case is not a ‘typical prosecution strategy’, contrary to Mr Zipkis’ statement in his affidavit dated 6 September 2023 to that effect. It is appropriate to consider the behaviour of M&S’ legal representation in light of the ODPP Guidelines and the Barrister Rules and Solicitor Rules.

Failure to disclose

168. The Defendants also submitted that M&S’ lawyers had failed to comply with the duty of disclosure required of a prosecutor.

169. An ongoing duty of disclosure is required of a prosecuting counsel under Barrister Rules r 87 and the ODPP Guidelines Ch 13, and of solicitors by virtue of Solicitor Rules r 29.5. A letter from solicitors then acting for the Boutros Defendants dated 18 November 2021 seeking particulars was sent shortly after proceedings commenced on 11 September 2021. The response dated 24 November 2021 from Mr Zipkis declined the request for disclosure including correspondence with potential witnesses at that time.

170. Mr Carbone submitted that M&S has failed to disclose to the Court until recently that the Aargus report is inadmissible. The Aargus report fails to refer to the code of conduct for expert witnesses and lacks a site history, which appeared to be accepted by M&S. Other matters submitted by Mr Carbone to have not been properly disclosed include the recent contract for sale of land prepared for the sale of the property, correspondence with former solicitors and the Martens report dated July 2023, which was first provided to the Defendants with the affidavit of Mr Nguyen dated 29 October 2024. That at least some of this material was not provided to the Defendants in a timely manner is a noticeable failure to disclose material by M&S.

A permanent stay should be ordered

171. The Defendants have satisfied the heavy onus, on the approach identified in Briginshaw, that the multiple prosecutions against the Defendants have been commenced by M&S for an improper purpose. According to Treasury Wine such proceedings protect the integrity of the Court’s processes by ensuring the processes are used fairly and to do so maintains public confidence in the ability of the court to exercise its functions, at [22] (Maxwell P and Nettle JA). A permanent stay was ordered in Treasury Wine, applying Spautz. Mason CJ, Dawson, Toohey and McHugh JJ in Spautz at 518-521 identified the circumstances whereby a permanent stay of proceedings is justified following a finding of improper purpose giving rise to an abuse of process.

No disentitling conduct by Defendants

172. M&S alleges collusion by the Defendants. There is no disentitling conduct by the Defendants to deprive them of the orders they seek. The Defendants’ respective interests overlap given that they are subject to the same multiple prosecutions for offences arising from the same activities in 2016 which if proved give rise to substantial penalties. That they adopt each other’s evidence and submissions is not inappropriate collusion.

Prosecutor’s notices of motion

173. As I will make the orders sought by the Defendants’ notices of motion that all the criminal prosecutions against them be stayed it must follow that I will not be making the somewhat unusual orders sought by M&S that the Defendants’ notices of motion be stayed. I do not consider the Defendants’ notices of motion are vexatious or untenable so that they can’t possibly succeed (they have in fact succeeded) or harass M&S or have an improper purpose of delaying the prosecutions and bringing the administration of justice into disrepute.

Costs

174. The Defendants seek costs of their notices of motion on an indemnity basis. If the Defendants are successful M&S wishes to have the opportunity to address costs and this will be discussed with the parties before any orders for costs are made. I am not aware of whether any costs orders are sought by the Defendants in relation to M&S’ notices of motion. Costs will be reserved in order to provide the opportunity to the parties to address that matter if required.

Orders

Defendants’ Notices of Motion

175. In Notices of Motion dated 6 September 2024 filed by Affordable Demolitions and Excavations Pty Ltd First Defendant in proceedings numbers 2021/261150, 2021/261151, 2021/261152, 2021/261153 the Court orders:

176. Pursuant to prayer 1 the charges are permanently stayed.

177. Costs reserved.

178. In Notices of Motion dated 6 September 2024 filed by Chalita Boutros Second Defendant in proceedings numbers 2021/261154, 2021/261155, 2021/261156, 2021/261157 the Court orders:

179. Pursuant to prayer 2 the charges are permanently stayed.

180. Costs reserved.

181. In Notices of Motion dated 6 September 2024 filed by Rimon Boutros Sixth Defendant in proceedings numbers 2021/261173, 2021/261174, 2021/261175, 2021/261176 the Court orders:

182. Pursuant to prayer 3 the charges are permanently stayed.

183. Costs reserved.

184. In Notices of Motion dated 22 December 2021 filed by Angela Carbone Fourth Defendant in proceedings numbers 2021/261163, 2021/261164, 2021/261165, 2021/261166, 2021/261167 the Court orders:

185. Pursuant to prayer 1(d) the charges are permanently stayed.

186. Costs reserved.

187. In Notices of Motion dated 23 December 2021 filed by Domenic Carbone Fifth Defendant in proceedings numbers 2021/261168, 2021/261169, 2021/261170, 2021/261171, 2021/261172 the Court orders:

188. Pursuant to prayer 1(a) the charges are permanently stayed.

189. Costs reserved.

Prosecutor’s Notices of Motion

180. In Notices of Motion dated 6 September 2024 filed by M.&.S. Investments (NSW) Pty Ltd Prosecutor in proceedings numbers 2021/261150, 2021/261151, 2021/261152, 202/261153, 2021/261154, 2021/261155, 2021/261156, 2021/261157, 2021/261173, 2021/261174, 2021/261175, 2021/261176, 2021/261163, 2021/261164, 2021/261165, 2021/261166, 2021/261167, 2021/261168, 2021/261169, 2021/261170, 2021/261171, 2021/261172 the Court orders:

181. Prayers 1, 2 and 3 are dismissed.

182. Costs reserved.

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