M & S Investments (NSW) Pty Ltd v Affordable Demolitions and Excavations Pty Ltd

Land and Environment Court (NSW)|2023-10-16|Before: Pain J

Solicitors: Watson Stafford & Zipkis Nguyen (Prosecutor) Boutros & Associates (First, Second and Sixth Defendants) Not applicable (Fourth Defendant) Sparke Helmore (Fifth Defendant) File Number(s): 2021/00261153, 2021/00261157, 2021/00261167, 2021/00261172, 2021/00261176

JUDGMENT

The Prosecutor commenced multiple private prosecutions under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) of the five Defendants in September 2021 concerning deposition of waste containing asbestos on land at Edmondson Park. Affordable Demolitions and Excavations Pty Ltd (First Defendant) is the defendant in proceeding 2021/261153. Mr Chalita Boutros (Second Defendant) is the defendant in proceeding 2021/261157. Mr Rimon Boutros (Sixth Defendant) is the defendant in proceeding 2021/261176. The First, Second and Sixth Defendants are represented by the same legal representatives. Mrs Carbone (Fourth Defendant) is the defendant in proceeding 2021/261167 and is separately represented. Mr Carbone (Fifth Defendant) is the defendant in proceeding 2021/261172 and is also separately represented.
Multiple notices of motion filed by the five Defendants and the Prosecutor's notice of motion dated 20 July 2021 in response were listed for hearing before the Court on 16 October 2023. Recently three notices of motion dated 12 and 13 October 2023 were filed by all the Defendants seeking orders that all remaining charges be dismissed as a nullity (collectively nullity notices of motion) which they pressed to be heard on 16 October 2023. One of the nullity notices of motion was an Amended Notice of Motion filed by the First, Second and Sixth Defendants that I granted leave to those Defendants to rely on.

Summonses dated 8 September 2021 commencing charges

The Prosecutor filed summonses in proceedings 2021/00261153, 2021/00261157, 2021/00261167, 2021/00261172 and 2021/00261176 following consent of the judge of the Court to commence proceedings in light of s 219 of the POEO Act on 8 September 2021. These summonses are largely identical. Summons 4 in proceeding 2021/00261153 (First Defendant) is extracted below for ease of reference: 1 An order under s 246(1) of the Criminal Procedure Act 1986 (NSW) that the First defendant Affordable Demolitions and Excavations Pty Ltd A.C.N. 160 307 371 appear before a Judge of the Land and Environment Court of New South Wales to answer the offence that: on a day or days in the period 1 September 2016 to 17 November 2016, the First defendant, omitted to, dispose of asbestos waste, or cause or permit the disposal of asbestos waste, off the site at which it was generated at a place that can lawfully receive the waste, by disposing of the asbestos waste, without lawful authority or excuse, on the property known as Lot 25 Jardine Drive, Edmondson Park, New South Wales, being the whole of the land in Folio Identifier 25/1181029 (hereinafter "the property"), in contravention of s144AAA(1)(a) of the Protection of the Environment Operations Act 1997 (NSW) (herein "the Act"), and that the First Defendant be dealt with according to law for the commission of the offence. 2 Evidence of the alleged offence in paragraph 1 first came to the attention of a relevant authorised officer, namely Cameron Theys, of Liverpool City Council, on 12 September 2018, for the purposes of s216(2)(a) and (3) of the Act. 3 An order imposing a penalty on the First Defendant under s144AAA(1)(a) of the Act. 4 An order under s245 of the Act, that the First defendant take the following steps, within the time so specified, to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence referred to in paragraph 1 above, or to make good any resulting environmental damage, or to prevent the continuance of the offence: (i) Provide current evidence to the Court that the First defendant is an accredited licensed and experienced waste removalist, and, if so, dispose of the imported waste and fill material referred to in paragraph 1 above from the property to a licensed waste facility that can lawfully accept that waste; (ii) Restore the land to its original ground levels as per the enclosed plans to Liverpool City Council's letter to Marko Bilaver, director of M&S Investments (NSW) Pty Ltd re Notice of Proposed Restore Works Order dated 26 April 2019; (iii) Submit to Liverpool City Council a survey plan prepared by a suitably qualified land surveyor to show that the original ground levels of the land on the property have been restored as per the plans referred to in order (ii) above; (iv) The costs for the steps (i)-(iii) above shall be borne by the defendants in such proportions as are ordered by the Court, and such steps shall be completed within 28 days of the making of the orders by the Court. …

Amended summonses annexed to Prosecutor's notice of motion dated 13 October 2023

Prayer 2 of the Prosecutor's notice of motion dated 13 October 2023 sought as follows: 2 An order pursuant to ss68(2), or in the alternative, ss68(1 ), of the Land & Environment Court Act 1979 (NSW), that the Summonses 4, 8, 18, 23, 27 in Land & Environment Court of NSW Case Nos. 2021/261153, 2021/261157, 2021/261167, 2021 /261172, & 2021/261176, respectively, be amended in the terms attached. …
The Prosecutor annexed amended summonses in proceedings 2021/00261153, 2021/00261157, 2021/00261167, 2021/00261172 and 2021/00261176 to the notice of motion dated 13 October 2023. Amended summons 4 in proceeding 2021/00261153 (First Defendant) is extracted below for ease of reference (amendments underlined): 1 An order under s246(1) of the Criminal Procedure Act 1986 (NSW) that the First defendant Affordable Demolitions and Excavations Ply Ltd A.C.N. 160 307 371 appear before a Judge of the Land and Environment Court of New South Wales to answer the offence that: on or around 30 August 2019, the First defendant, omitted to, dispose of asbestos waste or abandoned or discarded asbestos waste, or omitted to cause or permit the disposal of asbestos waste, off the site at which It was generated at a place that can lawfully receive the waste, by so disposing of the asbestos waste, without lawful authority or excuse. on the property known as Lot 25 Jardine Drive, Edmondson Park, New South Wales, being the whole of the land in Folio Identifier 25/1181029 (hereinafter "the property"), in contravention of s144AAA(1 )(a) of the Protection of the Environment Operations Act 1997 (NSW) (herein "the Act"), and that the First Defendant be dealt with according to law for the commission of the offence. 2 [not pressed] 3 An order imposing a penalty on the First Defendant under s144AAA(1) the Act. 4 An order under s245 of the Act, that the First defendant take the following steps, within the time so specified, to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence referred to in paragraph 1 above, or to make good any resulting environmental damage, or to prevent the continuance of the offence: (i) Provide current evidence to the Court that the First defendant is an accredited licensed and experienced waste removalist, and, if so, dispose of the imported waste and fill material referred to in paragraph 1 above from the property to a licensed waste facility that can lawfully accept that waste; (ii) Restore the land to its original ground levels as per the enclosed plans to Liverpool City Council's letter to Marko Bilaver, director of M&S Investments (NSW) Ply Ltd re Notice of Proposed Restore Works Order dated 26 April 2019; (iii) Submit to Liverpool City Council a survey plan prepared by a suitably qualified land surveyor to show that the original ground levels of the land on the property have been restored as per the plans referred to in order (ii) above; (iv) The costs for the steps (1)-(111) above shall be borne by the defendants in such proportions as are ordered by the Court, and such steps shall be completed within 28 days of the making of the orders by the Court.
The Prosecutor relied on ss 68(1) and (2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) as underpinning the power to amend the summonses and also referred to s 21(a). Sections 21(a) and 68 state: Part 3 Jurisdiction of the Court Division 1 General … 21 Class 5 - environmental planning and protection summary enforcement The Court has jurisdiction (referred to in this Act as "Class 5" of its jurisdiction) to hear and dispose of the following in a summary manner - (a) proceedings under Parts 8.2 and 8.3 of the Protection of the Environment Operations Act 1997, … Part 6 Miscellaneous … 68 Amendments and irregularities (1) In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice. (2) Where, in beginning or purporting to begin any proceedings before the Court or at any stage in the course of or in connection with any such proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect - (a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings, and (b) subject to subsection (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its functions under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally. …
The Defendants accepted that there could be power to amend under s 68(1) of the LEC Act and s 17 of the CP Act in theory. The Defendants did not accept that s 68(2) could be relied on by the Prosecutor.
Essentially the Prosecutor seeks to amend the date of the offences from a period in 2016 to 30 August 2019, a date after the commencement of s 144AAA of the POEO Act. The words 'or abandoned or discarded' (asbestos waste) are also sought to be added.
Because the Prosecutor did not concede that the charges sought to be amended were a nullity in their original form it was necessary to hear from the Defendants. I determined that I should consider the nullity notices of motion first as if the charges are a nullity there can be no summonses to amend.

Evidence

The Fifth Defendant read the affidavit of Ms Morton solicitor sworn 13 October 2023. Ms Morton's affidavit attests to becoming aware that s 144AAA of the POEO Act did not exist at the time of the alleged offending by the Fifth Defendant in light of the Protection of the Environment Operations Amendment (Asbestos Waste) Act.
The First, Second and Sixth Defendants read the affidavit of Mr Boutros solicitor affirmed 12 October 2023 to similar effect in relation to s 144AAA of the POEO Act.
The Prosecutor read the affidavit of Mr Zipkis solicitor sworn 13 October 2023, extracted in part as follows: 8 I say that the amendment merely adjusts temporally the breach alleged in the Summonses which is available given the broad definition of "dispose of asbestos waste" set out in ss 144AAA(2) of the POEOA. It is not in dispute between the parties that the alleged asbestos waste to this day remains on the affected property the subject of the current charges. It has done so from the time it was initially deposited on or around September 2016. As the Prosecutor alleges that the Defendants are responsible for the contravening conduct, the Prosecutor says that the amendments and other case management orders sought should be made. I am aware that all the Defendants, have filed Notices of motion seeking a dismissal of the current charges on the basis set out in the Morton letter, and are opposed to any amendment of the Summonses sought by the Prosecutor.
An earlier affidavit of Mr Zipkis sworn 7 September 2021 with exhibits provided to the judge who considered s 219 in granting the Prosecutor leave to commence the proceedings was also read. The Prosecutor tendered Exhibit E1 to that affidavit (Ex 1) and Exhibit E2-A to that affidavit (Ex 2). Ex 2 included a letter sent by the Prosecutor's solicitor to the EPA dated 27 August 2021, relevant to s 219(2)(b) of the POEO Act. A report of Aargus dated 30 August 2019 advising of contamination of the relevant land and an affidavit of Mr Bilaver director of the Prosecutor sworn 26 March 2021 was in Ex 1.

Fifth Defendant

Firstly, the summonses are a nullity given that it purported to rely on an offence provision that did not exist at the time the alleged offence occurred as particularised in the summons. The power to amend can only be exercised if summonses are defective rather than being a nullity. The charges are fatally defective, confirmed by Doja v R (2009) 198 A Crim R 349; [2009] NSWCCA 303 (Doja) at 353-355. An offence unknown to the law, as in this case, goes to the absence of jurisdiction of the Court. Such a fundamental defect cannot be cured by amendment. In R v McVitie (1960) 2 QB 483 (McVitie), cited in Doja, where an omission in the charge did not invalidate the indictment only the particulars were incomplete. Consequently the Fifth Defendant's notice of motion should be upheld, the summonses quashed and prayer 2 of the Prosecutor's notice of motion dated 13 October 2023 should be dismissed as it cannot arise.
Secondly, leave was granted under s 219 of the POEO Act by a judge of the Court for these private prosecutions to be commenced on the basis of circumstances disclosed in the summonses, being events in 2016. The amendments give rise to new proceedings for which leave has not been sought and leave is required by s 219. No events relevant to 2019 are before the Court.
If the Court was to consider that amendment was possible in these circumstances, there are two reasons why the Court should not grant orders in any event in the exercise of its discretion.
Firstly, there is no evidence before the Court that the Fifth Defendant did any action on 30 August 2019 which amounted to the disposal of asbestos waste. The explanation of the Prosecutor's counsel that that is the date of a report identifying asbestos waste on the relevant land has nothing to do with the actions of the Fifth Defendant.
Secondly, the Prosecutor's case was agitated on the basis that soil contamination occurred in 2016 and material to that effect was placed before the judge when proceedings commenced. No evidence is available to support the case purported to be put in the amended summonses which focusses on a period in 2019. The case is doomed to fail.
In reply, prayer 4 of the summonses is irrelevant to the assessment of whether the offences are known to the law, it does not particularise any offence. Section 21(a) of the LEC Act confers jurisdiction, it does not impose any pre-conditions. It is not relevant to the application of s 68(2). That the date of the offence is the date of a report on contamination fails to specify any act or omission by any of the Defendants as is required by s 1444AAA. The selection of the charge date appears artificial. Section 144AAA requires the action giving rise to a charge be undertaken by the Defendants. The acts the basis for the present charges were completed in 2016 and that is how they have been charged for a fixed period. This cannot give rise to an offence several years later. The charge crystallises when deposition occurred, consistent with subs (2) of s 144AAA.

Fourth Defendant

The Fourth Defendant adopted the Fifth Defendant's submissions above and also referred to Barnes, Chief Regulatory Officer Natural Resources Access Regulator v Lidokew Pty Ltd [2021] NSWLEC 53 at [64]-[78] a prosecution under the WM Act in which the judge confirmed that Ch 2 Pt 2 of the CP Act which include ss 16, 17, 20 and 21 applies in the Court (a matter that does not appear to be in dispute).

First, Second, Sixth Defendants

Regarding the summonses and proposed amended summonses, the First, Second and Sixth Defendants also submitted that s 144AAA does not include omissions, it requires a positive act given the definition of 'dispose' in s 144AAA. Further it is not a continuing offence as defined in s 242 of the POEO Act. Section 242(2) requires that an offence must provide for a penalty for a continuing offence and s 144AAA does not so provide. The amendments if made are doomed to fail.

Prosecutor's submissions

Section 68 of the LEC Act permits amendment and the Defendants do not dispute that subs (1) applies. Subsection (2) also applies and supports the application given its scope and the issue raised by the Defendants. It applies by virtue of s 21(a) of the LEC Act. The amendments should be made to avoid delay and unnecessary costs in the commencement of new proceedings.
The Defendants are identifying a jurisdictional argument which they should have pursued by challenging the decision of the judge made pursuant to s 219 by seeking prerogative writs in the Supreme Court.
The asbestos waste continues on the land and has done so since 2016, as identified in the evidence of Mr Bilaver, referred to in the affidavit of Mr Zipkis dated 13 October 2023. Only minimal changes are sought to be made to the summonses in changing the date of the offence and adding in additional words which are within the definition of dispose of asbestos waste in s 144AAA(2). There is no real difference between the current charges and the proposed amended charges.
Prayer 4 of the summonses identifies matters that were made known to the judge considering s 219. The report of 30 August 2019 identifying contamination was also before the judge at the time proceedings were commenced in September 2021. The judge had evidence of and particulars about the existence of asbestos waste which remained on the property.
Given the wide terms of s 144AAA the date of the charges can be amended in the manner sought. Section 144AAA contains a positive requirement to lawfully dispose of asbestos waste at a place that can lawfully receive the waste. An omission constitutes an offence. The definition of evidence which includes an act or omission in s 216(6) applies to s 144AAA.

Consideration

Section 17 of the CP Act provides the appropriate mechanism to seek to quash an indictment, widely defined in s 15. The absence of an offence provision at the time of commencing criminal proceedings is a fundamental defect in a charge giving rise to a nullity. It is not a defect that can be corrected by amendment, and certainly not in the manner pursued by the Prosecutor. Doja confirms this approach, under the CP Act in that case. The same principles apply in the Court given the broad definition of indictment in s 15 to include any documents by which criminal proceedings are commenced. In Doja the Court of Criminal Appeal identified the importance of an indictment to confer jurisdiction on a court at 353. Spigelman CJ (McClellan CJ at CL and Grove J concurring) stated at 354, 355 ([14], [22]-[24]): 14 … there has never, to my knowledge, been a statutory modification of the fundamental principle that a Court has no jurisdiction to hear a criminal trial which has not been instituted by a pleading that alleges an offence known to the law. Indeed, any attempt to do so could raise constitutional considerations. … 22 I note the acceptance by Giles JA in Boujaoude supra at [40] of the existence of an important distinction between the case of an indictment which did not allege an offence known to the law and the imperfect formulation of a known offence. His Honour referred with approval to the observations of Lord Bridge of Harwich in the House of Lords in R v Ayres [1984] 1 AC 447, to which I will refer below in the context of applying the proviso. 23 Although the distinction between an indictment which is a "nullity" and one which is merely "defective" is not, as Lord Bridge suggested, always a helpful distinction, (see also [4] above), his Lordship's clear statement, which I will quote below, about the need for an indictment to disclose a criminal offence, remains good law. I do not understand that anything said in the cases, upon which the Crown relies, doubts this essential requirement of a criminal pleading. 24 The Crown also submits that the powers to amend a defective indictment, found in ss 17(2), 20 and 21 of the Criminal Procedure Act, are such that an indictment remains valid, notwithstanding any defect, until such time as it is quashed. For the reasons I have already given above, this submission is too broad. It overlooks the role of an indictment in conferring jurisdiction on a court. There are limits to the range of defects capable of being the subject of a power to amend. (See, eg, Broome v Chenoweth supra at 601.)
In applying these considerations to these matters, examples of defective indictments considered in Doja included McVitie which held that reference to the statutory provision creating an offence may implicitly plead the element contained in the section. That summons was found not be fundamentally defective. In contrast, the failure of the summonses in the current charges are far more fundamental and do result in charges that are unknown to the law. No such offences were known at the time proceedings were commenced, as the Defendants submitted. On this occasion it is readily determined that each summons is a nullity and not defective in a manner that can be cured by amendment. It is no answer to this fundamental matter to submit that the Defendants should have taken prerogative writ proceedings in the Supreme Court challenging the s 219 determination of the judge when proceedings were commenced, assuming such proceedings are even possible legally.
Although immaterial to my reasoning I note that s 17 of the CP Act provides a mechanism to quash an indictment. There is no need to approach the Supreme Court for a prerogative writ in contrast to the Prosecutor's submission to that effect.
The order quashing and dismissing all five charges in the three nullity notices of motion will be made.
Strictly speaking prayer 2 of the Prosecutor's notice of motion dated 13 October 2023 seeking to amend the summonses does not arise as no summonses exist to be amended. I will nevertheless deal briefly with the key arguments. Section 68(2) of the LEC Act provides no assistance by its wording to support the Prosecutor's application to amend. Section 21(a) which was relied on as giving rise to a failure to comply with requirements of the LEC Act identifies those matters the Court has criminal jurisdiction in relation to, and no more. That section does not specify any requirement which must be complied with. Nothing in s 21(a) 'enlivens' the application of s 68(2). It does not apply in the circumstances here. Given my finding above s 68(1) cannot be relied on either.
The amendment includes changing the date of the offence to 30 August 2019. Section 144AAA is not a continuing offence, which is defined in s 242 of the POEO Act. It is not drafted in the terms specified in s 242. It cannot therefore be assumed to have been charged on that basis in 2016 or be a continuing offence in 2019. The Prosecutor did not expressly state that the offences were continuing but the Defendants correctly identified that is the effect of the Prosecutor's argument.
As the Defendants submitted s 144AAA is directed by virtue of the definition of 'dispose' in subs (2) to positive acts rather than omissions. Reliance placed by the Prosecutor on the definition of evidence in s 216(6) of the POEO Act (evidence means any act or omission constituting the offence) to submit that omissions can also be charged under s 144AAA is not supported by usual statutory construction principles. Further, the date of the amended offence in 2019 is not identified by reference to any action within the definition of 'dispose' in subs (2) of s 144AAA taken by the Defendants.
That material referred to by the Prosecutor to justify the amendments such as prayer 4 of the summonses and the Aargus contamination report dated 30 August 2023 was before the judge considering s 219 in September 2021 is irrelevant to the matters in issue. I am not considering the commencement of a charge for the purposes of s 219. As submitted by the Defendants the factual basis for the charges were all events in 2016.
For the discretionary reasons identified by the Fifth Defendant outlined above in [26]-[27] I would not have made the amendments sought even if power to do so existed. Such amendments would not have been in the interests of justice and efficiency arguments have no relevance.
Prayer 2 of the Prosecutor's notice of motion dated 13 October 2023 is dismissed.

Costs

Under s 257C of the CP Act a court can order professional costs be payable to a court registrar for payment to an accused person if a matter is dismissed. It is appropriate to make such an order for the benefit of the five Defendants in the circumstances considered.

Order

The Court orders that in proceeding 2021/00261153 (First Defendant): 1. The Defendant's notice of motion dated 12 October 2023 is granted and summons 4 dated 8 September 2021 is dismissed as it does not disclose an offence known to law as s 144AAA of the Protection of the Environment Operations Act 1997 (NSW) did not exist when the offence alleged occurred. 2. The Prosecutor is to pay the Defendant's costs pursuant to s 257C of the Criminal Procedure Act (NSW) as agreed or assessed. 3. Prayer 2 of the Prosecutor's notice of motion dated 13 October 2023 is dismissed.
The Court orders in proceeding 2021/00261157 (Second Defendant): 1. The Defendant's notice of motion dated 12 October 2023 is granted and summons 8 dated 8 September 2021 is dismissed as it does not disclose an offence known to law as s 144AAA of the Protection of the Environment Operations Act 1997 (NSW) did not exist when the offence alleged occurred. 2. The Prosecutor is to pay the Defendant's costs pursuant to s 257C of the Criminal Procedure Act (NSW) as agreed or assessed. 3. Prayer 2 of the Prosecutor's notice of motion dated 13 October 2023 is dismissed.
The Court orders in proceeding 2021/00261167 (Fourth Defendant): 1. The Defendant's notice of motion dated 13 October 2023 is granted and summons 18 dated 8 September 2021 is dismissed as it does not disclose an offence known to law as s 144AAA of the Protection of the Environment Operations Act 1997 (NSW) did not exist when the offence alleged occurred. 2. The Prosecutor is to pay the Defendant's costs pursuant to s 257C of the Criminal Procedure Act (NSW) as agreed or assessed. 3. Prayer 2 of the Prosecutor's notice of motion dated 13 October 2023 is dismissed.
The Court orders in proceeding 2021/00261172 (Fifth Defendant): 1. The Defendant's notice of motion dated 13 October 2023 is granted and summons 23 dated 8 September 2021 is dismissed as it does not disclose an offence known to law as s 144AAA of the Protection of the Environment Operations Act 1997 (NSW) did not exist when the offence alleged occurred. 2. The Prosecutor is to pay the Defendant's costs pursuant to s 257C of the Criminal Procedure Act (NSW) as agreed or assessed. 3. Prayer 2 of the Prosecutor's notice of motion dated 13 October 2023 is dismissed.
The Court orders in proceeding 2021/00261176 (Sixth Defendant): 1. The Defendant's notice of motion dated 12 October 2023 is granted and summons 27 dated 8 September 2021 is dismissed as it does not disclose an offence known to law as s 144AAA of the Protection of the Environment Operations Act 1997 (NSW) did not exist when the offence alleged occurred. 2. The Prosecutor is to pay the Defendant's costs pursuant to s 257C of the Criminal Procedure Act (NSW) as agreed or assessed. 3. Prayer 2 of the Prosecutor's notice of motion dated 13 October 2023 is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 June 2024

Environment Operations Act 1997(NSW)

Environment Operations Amendment (Asbestos Waste) Act 2018(NSW)

Environment Court Act 1979(NSW)

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