Mr Mouawad, Through FCE, is Vicariously Liable for FCA's Act of Transporting the Waste to the Annangrove Site
98It was uncontroversial that the conduct of Mr and Mrs Mouawad was the conduct of FCE and FCA respectively. And nor could it be. Mr Mouawad was the sole director and shareholder of FCE and FCE had no employees. Mrs Mouawad was the sole director of FCA and although the shares in FCA were held by F C Group Pty Ltd ("FCG"), Mrs Mouawad was also the sole director of FCG and held all of the shares in that corporate entity.
99Mr Mouawad submitted, however, that none of the evidence of his involvement in the transportation of the material to the Annangrove site demonstrated, to the requisite degree, that he had, through FCA, transported material to the Annangrove site in contravention of s 143 of the POEOA.
100In support of its contentions the council initially relied upon two matters. First, the fact that Mr Moussa believed that he and Mr Mouawad had been a party to a conversation wherein, after Mr Moussa had disclosed to Mr Mouawad that he required some clean soil for a site in Annangrove, Mr Mouawad had told Mr Moussa that there was some clean soil available, it was validated and that he could have it.
101And second, the council relied upon Mr Mouawad's explanation for commissioning the Aargus Report, namely:
As part of my obligations within my field of work we carry out the requirement to ensure that the material on our sites are disposed in the correct manner, in the lawful manner and the different destinations which should have been in the case of waste materials appropriate waste facility and by having a document like this, being the validation certificate, we are able to understand what materials are classified particular as stated and their final destination is then arranged.
102Contrary to the finding of the learned magistrate, I accept the submission of Mr Mouawad that this latter testimony is, of itself, insufficient to draw an inference to the criminal standard that either he or FCE was responsible for directing the drivers of the trucks to the nominated destination.
103I also accept that the terms of the conversation are, of themselves, not capable of permitting a finding beyond reasonable doubt that Mr Mouawad directed or authorised the transportation of the waste from the Lindfield site to the Annangrove site. As Mr Mouawad submitted, this is evidence equally consistent with him conveying to Mr Moussa information that had, in turn, been conveyed to him by a third party, for example, Mr Anjoul or Mrs Mouawad after Mr Moussa had spoken to either or both of those individuals. Care must, in any event, be exercised in placing too much weight on the conversation given Mr Moussa's equivocation regarding whether it was Mr Mouawad with whom he had had the conversation.
104But this is not the end of the matter.
105The council drew support from the fact that the fill material transported to the Annangrove site on 11 and 12 May 2009 was transported in FCE trucks, badged as such, using FCA drivers. There was no written contract in place governing the oral arrangement between FCA and FCE, there was no evidence of any fee negotiated for the transportation and no formal invoices appeared to have been issued from FCE to FCA, for the use of FCE's trucks, or by FCA to FCE for the haulage, for that particular transaction.
106In my opinion, when regard is had to the totality of the evidence, it demonstrates to the criminal standard that FCA was acting as FCE's agent in transporting the waste. My reasons are essentially twofold.
107First, the almost intimate proximity of the relationship between FCE and FCA was highly probative of a relationship of agency. Before the formation of FCA, FCE had for many years carried on demolition, excavation and waste transport work. From the evidence it may be readily inferred that FCA was recently incorporated to carry out that demolition, excavation and waste transportation work on behalf of FCE. This evidence includes the following facts:
(a)FCA was incorporated in June 2008. Prior to her becoming a director of FCA, Mrs Mouawad had no experience in civil works and had been working for FCE in January 2008 "merely" answering the telephone. As she stated, "I'm a mother of three kids, I didn't have all the time to sit there";
(b)according to the appellants' written submissions, as at April 2009 Mr Mouawad was a shareholder of FCA;
(c)Mrs Mouawad, although the owner of FCA shares, albeit through the vehicle of FCG, was not certain of the share ownership arrangements between the two companies;
(d)Mr Mouawad described FCA as FCE's "subcontractor" and FCE as the "head contractor" and said that he gave instructions to Mr Anjoul in this capacity;
(e)Mr Mouawad regarded FCE as the management company and FCA had been established to provide FCE with labour. Although Mr Anjoul became an employee of FCA, his duties remained essentially the same, namely, site foreman and supervisor. Mr Mouawad's role also remained unchanged, namely, project manager;
(f)the "vast majority" of FCA's work was subcontract work given to it by FCE;
(g)the business name for "Frontier Civil" was registered to FCE;
(h)the business name FCE was registered to FCA;
(i)the registered office for FCA, FCE and FCG was the same;
(j)the three companies shared a principal place of business, namely, Mr and Mrs Mouawad's family home;
(k)FCE promoted itself as undertaking excavation and demolition work even though it did not have any employees. Plainly it intended to do so through the vehicle of FCA;
(l)there was no written contract between FCA and FCE either generally or in respect of particular projects (and none in respect of the transportation of the fill material from Lindfield to Annangrove). Rather, as Mrs Mouawad stated, the work to be performed was determined by oral agreement on a job-by-job basis;
(m)FCA regularly used FCE's trucks to transport fill material;
(n)although according to Mr Mouawad some invoices were rendered between FCE and FCA for truck and other equipment hire and labour, Mrs Mouawad was unsure of the invoicing arrangements between the two companies. She agreed that there was nothing recorded in the books of FCA that showed payment by it for the use of FCE's trucks; FCE did not pay FCA for the haulage of any of the materials from Lindfield to Annangrove; FCA did not separately cost any job; and according to Mrs Mouawad, the scope of works performed by FCA was costed by Mr Mouawad;
(o)although Mrs Mouawad viewed Mr Mouawad as a consultant to FCA to provide her with advice, there was no contract between Mr Mouawad or FCA to this effect and in July 2010 Mrs Mouawad signed an ASIC Summary of Affairs of a Company which showed Mr Mouawad as a substantial creditor of FCA. Although she later orally denied that this was the correct position, she could not explain the statement;
(p)Mrs Mouawad relied on advice from Mr Mouawad and Mr Anjoul because she had no experience in the conduct of a civil works business;
(q)although the demolition licence passed from FCE to FCA upon FCA's establishment, Mr Mouawad continued to ensure that demolition works complied with environmental and occupational health and safety obligations under relevant legislation, including with respect to the lawful disposal of materials from building sites. Thus although he expressly denied playing any role in determining whether the material from the Lindfield site should be taken to the Annangrove site, he nevertheless agreed that he had "instructed" Mrs Mouawad "about the removal of the material from the [Lindfield] site";
(r)Mr Mouawad, initially, at least, described the Aargus Report as a "validation report", the purpose of which was as follows (T 13/10/10 140.0-140.15, emphasis added):
If the client doesn't have a classification then we got out, obtain the validation for the material to be disposed and once the validation is done, it's provided, then analyse to see what the classification of the material has been determined to be and then a determination as to where the disposal of the material can take place. If the - it's my understanding that VENM material is virgin excavated natural material and then if it's other than virgin excavated natural material it can be classified as, you know, certain types of wastes and the degree of contaminants.
My procedure then is to provide the validation report to various sites, landfills, waste facilities and so forth. We then also maintain a report on site so that if any authority needs to come and inspect and once we've determined where the material goes and then it's accepted by the certain end-user, landfill site, tip site, building site, waste facility then we proceed to transport the material. That's the procedure I've adopted from when I started up until this day.
(s)the FCA drivers recorded their work on FCE log books and the trucks they drove carried FCE's business name and contact details; and
(t)according to Mrs Mouawad, although FCA was put into external administration in July 2010, FCA was still doing work for FCE up until February 2010.
108Although Mr Mouawad later testified that: the FCE vehicles were under the control of FCA; it was Mrs Mouawad (subsequently confirmed by her) who was responsible for the day-to-day governance of FCA; and that he gave no instructions to transport the material to the Annangrove site, in my view, when regard is had to the evidence above, FCA was, to all intents and purposes, publicly presented as an emanation of FCE and fully clothed with the authority to act on its behalf. That FCA from time to time obtained business from sources other than FCE does not, in my opinion, materially derogate from this conclusion.
109Second, it may be inferred that despite protestations to the contrary from Mr Mouawad, FCA was acting within the scope of its authority from FCE when it transported the waste to the Annangrove site. This inference may be drawn from the fact that:
(a)although FCA physically undertook the work at the Lindfield site, it was FCE that was responsible for that work, including the disposal of the demolition and excavation material. IPM contracted with FCE to provide "demolition, excavation, shotcrete, anchors and oiling" services at the Lindfield site. FCE commenced these works on the site on around 7 April 2009. Contractually, FCE provided the labour, materials and equipment, and received payment for the work it performed. As the evidence of Mr Mouawad disclosed, it was he who instructed Mr Anjoul and FCA what work was to be undertaken at the Lindfield site;
(b)prior to May 2009, Mr Moussa had obtained quantities of fill material through Mr Mouawad and Mr Anjoul;
(c)Mr Moussa stated that in early May 2009, he contacted someone in "Frontier Civil" and asked for some "clean validated topsoil" for "a job in Annangrove". Although, as discussed above, Mr Moussa was uncertain as to whether or not he had initially spoken with Mr Mouawad or Mr Anjoul in respect of the soil, Mr Moussa believed that subsequently he had received a call from Mr Mouawad stating that some clean validated soil was available and that he could have it. Mr Moussa then stated that "we arranged that the soil would come out" (T 12/10/10 31.11, emphasis added);
(d)Mr Moussa contacted Mr Mouawad, not Mrs Mouawad, seeking a copy of the validation report for the soil deposited at the Annangrove site. And it was Mr Mouawad, not Mrs Mouawad, who demanded $2000 by way of payment in exchange for a copy of the report. Mr Mouawad's various attempts to explain whether or not he had in fact sought this sum and when he was asked for a copy of the validation report were contradictory and unsatisfactory;
(e)while Mr Mouawad repeatedly denied that he gave instructions for the material to be delivered to Annangrove, he nevertheless accepted that he had instructed FCA, including his wife, Mrs Mouawad, and Mr Anjoul, about the removal of the material from Lindfield (T 13/10/10 100.22-100.45). He also stated that he "may have" (T 14/10/10 154.20) directed Mr Moussa to speak to Mr Anjoul for the purpose of obtaining material from the Lindfield site;
(f)there was evidence that FCE was registered with third parties with whom FCA drivers dealt, as the entity that transported materials from the Lindfield site to various licensed waste facilities. These facilities included S R Greenwood Contracting, Boral Recycling Pty Ltd and Benedict Sands. In no case was FCA identified as the entity transporting the waste material to these waste facilities;
(g)Mr Colosimo raised the matter of the unclean demolition material deposited on his land with Mr Mouawad, not Mrs Mouawad;
(h)in response to Mr Colosimo telling him in a telephone conversation that "your trucks have dumped soil on my property" in 2009, Mr Mouawad responded, "my truck drivers did not dump any soil that was crap". Mr Colosimo was challenged in respect of this evidence and he did not resile from it (T 12/10/10 22.0-22.25). Although Mr Mouawad denied this conversation, I prefer the evidence of Mr Colosimo, who had no reason to fabricate it; and
(i)when the council approached Mr Moussa and Mr Colosimo about cleaning up the Annangrove site, they sought to obtain a remedy from Mr Mouawad, not FCA or Mrs Mouawad.
110In my opinion, Mr Mouawad's denials that he had anything to do with the transportation of the fill material to Annangrove are implausible when assessed against the totality of the evidence above. Put another way, the evidence is insufficient to support a reasonable possibility that Mr Mouawad was not involved in the transportation of the waste from Lindfield to the Annangrove site or that FCA was acting outside the authority that FCE had conferred upon it.
111I have reached this conclusion notwithstanding inconsistencies between Mr Moussa's evidence and that of Mr Anjoul concerning who initially told Mr Moussa that clean soil was available and whether or not Mr Moussa visited the Lindfield site.
112It was Mr Anjoul's testimony that Mr Moussa telephoned him and that Mr Anjoul indicated that some topsoil was available from the Lindfield site. It was during this conversation that delivery to the Annangrove site was discussed. Mr Moussa then visited the site (denied by Mr Moussa in cross-examination), inspected the topsoil and indicated that he would take it. Mr Moussa again told him that the material was to be delivered to the Annangrove site (later confirmed by text message sent by Mr Moussa to Mr Anjoul). Mr Anjoul then spoke to Mrs Mouawad, who approved the delivery to Mr Moussa at Annangrove. It was this instruction that Mr Anjoul gave to the FCA drivers of the FCE trucks.
113Mr Anjoul's evidence was consistent with that given by Mrs Mouawad to the extent that she confirmed that she instructed him to deliver the material to Annangrove. But this was only after Mr Anjoul had told Mrs Mouawad that "there is a site at Annangrove that requires topsoil and can I send some loads there?" (T 14/10/10 176.50-177.04). Hence Mrs Mouawad did not make the decision herself about where to transport materials but instructed "Jimmy [Anjoul] to make the decision as to where the material goes" upon FCA's receipt of a validation report from FCE (T 14/10/10 200.21-201). Thus it was Mr Anjoul who in reality decided where the material was to be transported, a decision made in his capacity as the supervisor at the Lindfield site, where, it should be recalled, Mr Mouawad issued directions about the scope of the works undertaken at that site.
114Even accepting, as I do, that it was Mrs Mouawad of FCA who formally confirmed Mr Anjoul's decision to take the material to Annangrove and that FCA employees drove the waste to the Annangrove site pursuant to Mr Anjoul's direction consequent upon this confirmation, this does not negate the relationship of principal and agent that, in my view, existed between FCE and FCA.
115A decision by an agent to undertake an activity, in this case instructing FCA drivers to transport the demolition material to the Annangrove site, in the absence of any direct instruction from his or her principal, in this case FCE, does not necessarily take the activity outside the scope of the agent's authority, particularly where the evidence discloses that the specific activity is consistent with other activities the agent is called upon to undertake in the course of its relationship with the principal. In other words, there is nothing in the evidence of Mr Anjoul or Mrs Mouawad that precludes a finding that the drivers engaged in transporting the material to Annangrove from Lindfield were engaged to do so by a third party corporate entity, namely, FCA, that was, in truth, acting as agent for its principal, FCE. On the evidence before me I have no hesitation in making this finding.
116I therefore find beyond reasonable doubt that on 11 and 12 May 2009, FCA was an agent of FCE for the class of activity of transporting FCE's material from the Lindfield site to the Annangrove site. I also find to the same standard that in transporting FCE's material on those dates, FCA was acting within the scope of its authority from FCE.
117Accordingly, I find to the requisite degree that FCE is vicariously liable for FCA's act of transporting FCE's waste material from the Lindfield site to the Annangrove site for the purpose of s 143 of the POEOA.
118It follows that grounds 1 to 5 of Mr Mouawad's amended grounds of appeal must be dismissed.