These proceedings concern alleged trespass and dumping of material on vacant land at 1 Sirius Road, Lane Cove West (the Land) by each of the defendants on separate occasions over the course of two days on 13 and 14 July 2018. The Land was then owned by the plaintiff, Rove Estate Pty Limited (Rove) in its capacity as trustee of the Lane Cove Estate Trust.
Trucks entered the Land on 74 occasions on 13 and 14 July 2018 and a survey conducted in August 2018 identified 209 piles of material with a total volume of 1,427.3 m3 on the Land. After engaging a soil scientist to undertake a waste classification of the piles and ascertaining that some of the piles contained asbestos waste, Rove engaged one of its related companies to remove and dispose of all of the 209 piles during the period from February to July 2019. The related company subcontracted that work out to various third parties. Rove claims to have incurred costs totalling $985,705.31 (including GST) in relation to the investigation, classification, and removal of the waste. [1]
Rove sued the owners of nine of the trucks captured on CCTV film driving onto the Land on 13 and 14 July 2018 for damages for trespass, including exemplary damages. The owners of those nine trucks are the first to sixth and eight to tenth defendants. Rove was unable to read the registration plates of many other trucks captured on the CCTV film and was therefore unable to identify the owners of those trucks. Rove also sued the seventh defendant who entered onto the Land with his earthmoving equipment on 14 July 2018 and smoothed out some of the piles of material that had been dumped on the Land.
By the end of the final hearing, Rove had discontinued its claim against the seventh defendant (Mr Paul Jones) and had informed the Court that it did not press its claim against the fourth defendant (Empire Transport Solutions Pty Ltd).
That left Rove's claim against the first defendant Chomp Excavation & Demolition Pty Ltd (Chomp), the second defendant Carlo Excavations Pty Ltd (Carlo), the third defendant Haulbuild Pty Ltd (Haulbuild), the fifth defendant Mr Ahmad El Kadomi, the sixth defendant Mr Ahmad Kataieh, the eighth defendant Mr George Abousleiman, the ninth defendant Mr Daniel Gawidziel, and the tenth defendant Mr Richard Gawidziel.
At the time of the alleged trespasses by those defendants, the gates at the entry to the Land were open, and a person stood at or beyond those gates permitting and directing the defendants' trucks to enter the Land and dump the material contained in their trucks or trailers on the Land. Mr Jones gave evidence identifying that person as Mr Anthony Abi Marlu. Mr Abi Marlu was not known to the other defendants by name at the time of the events, and their evidence in these proceedings generally refers to him as the gatekeeper.
Rove pleads that the dumped material was waste, and that the defendants' conduct in transporting the material to the Land and dumping it there contravened the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Rove alleges that much of the dumped material contained asbestos. Rove's submissions characterised the defendants' alleged trespasses as intentional or, alternatively, as reckless or negligent.
Rove's primary case is that each of the acts of trespass allegedly committed by the defendants referred to at [5] above materially contributed to the need for Rove to undertake the work of removing and disposing of the 209 piles, and that those defendants are therefore severally liable for the whole of the costs that Rove claims to have incurred by undertaking all of that work. Alternatively, Rove contends that each defendant must bear its proportionate liability for the whole of those total costs.
Each of Chomp, Haulbuild, Mr El Kadomi and Mr Abousleiman admits that trucks owned and/or operated by them entered onto the Land and deposited material on the Land on one or more occasions on 13 and/or 14 July 2018. Chomp and Haulbuild say that they deposited only virgin excavated natural material (VENM) which did not contain asbestos. Mr El Kadomi and Mr Abousleiman say that the material they dumped did not contain asbestos.
Each of Chomp, Haulbuild, Mr El Kadomi and Mr Abousleiman claims to have entered onto the Land and dumped that material on the Land with the consent of the owner of the Land and/or the person in possession of the Land at the time of those entries. Alternatively, they claim to have done so pursuant to an implied licence that permitted them to enter and dump the material on the Land in return for payment of the fee stipulated by the gatekeeper and on the condition that they would follow the directions given to them by the personnel who were directing and controlling the movement of trucks and the dumping of material on the Land.
Each of Chomp, Haulbuild, Mr El Kadomi and Mr Abousleiman contends that, if they trespassed on the Land (which is denied), then each of them is only liable in respect of any harm that their own actions may have caused to Rove, and that they are not severally liable for the whole of the costs incurred by Rove in removing and disposing of the 209 piles of material dumped by the defendants and other third parties.
In the alternative, each of Chomp, Haulbuild and Mr Abousleiman pleads that, if Rove's claim is a single apportionable claim within the meaning of s 34 of the Civil Liability Act 2002 (NSW), then each of the other defendants, any other person who deposited waste on the Land, and the gatekeeper who was in possession and control of the Land at the time of the alleged trespass, are concurrent wrongdoers, and the loss allegedly suffered by Rove was caused by those concurrent wrongdoers. Further, each of Chomp, Haulbuild and Mr Abousleiman contend that the gatekeeper was a rogue who unlawfully or fraudulently granted them access to the Land and that he should bear the most significant proportion of liability, if Rove's loss is a single apportionable claim.
Mr Daniel Gawidziel represented himself at the final hearing. He admits that one of his driver subcontractors dumped material on the Land on 13 July 2018 but says that he believed at the time that this had been authorised by the owner of the Land. He denies that the material dumped by his driver subcontractor contained asbestos.
The remaining defendants - Carlo, Mr Kataieh and Mr Richard Gawidziel - did not defend the proceedings and Rove sought default judgment against them.
I will refer to Mr Richard Gawidziel by his full name to avoid confusion with Mr Daniel Gawidziel. All references to Mr Gawidziel are references to Mr Daniel Gawidziel, although I will also refer to him by his full name on occasion.
For the reasons that follow, each of Chomp, Haulbuild, Mr El Kadomi, Mr George Abousleiman and Mr Daniel Gawidziel trespassed on the land when they drove onto the Land and dumped material there. Each of those defendants is liable to pay compensatory damages to Rove for the loss caused by that defendants' trespass. None of the defendants are liable for the whole of Rove's remediation costs. Chomp and Mr George Abousleiman are also liable for exemplary damages. Rove is entitled to default judgment against Mr Carlo, Mr Ahmed Kataieh and Mr Richard Gawidziel for nominal damages only because the evidence adduced by Rove did not enable the Court to assess compensatory damages for the loss caused by each of those defendants. I have considered the substance of all of the parties' written and oral submissions in coming to those conclusions and in formulating my reasons for those conclusions.
[2]
The tort of trespass to land
A person who enters onto, or causes some physical matter to come into contact with, the land of another, commits a trespass unless they can show that they had the consent of the occupier or other lawful authority or justification: Kuru v State of New South Wales (2008) 236 CLR 1; (2008) 82 ALJR 1021; (2008) 246 ALR 260; [2008] HCA 26 (Kuru) at [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ) and the authorities there referred to.
As Gageler J explained in Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177; (2020) 94 ALJR 502; (2020) 376 ALR 575; (2020) 280 A Crim R 356; [2020] HCA 14 (Smethurst) at [120] (references omitted):
"The gist of a common law cause of action for trespass, whether to land or to goods, is 'the wrong to the right to possession'. At the heart of the common law right to possession is the common law right to control access by others and thereby to exclude others from access. In protecting the right to possession, the policy of the common law is to protect the right to exclude others which is bound up in possession."
The authorities cited by his Honour in the passage immediately above include the statement by Gaudron and McHugh JJ in Plenty v Dillon (1991) 171 CLR 635; (1991) 65 ALJR 231; (1991) 98 ALR 353; [1991] HCA 5 (Plenty v Dillon) (at 171 CLR 654-655) that:
"[T]he purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation or his or her land."
It was submitted by Rove and the legally represented defendants in these proceedings that trespass may be either intentional or negligent. There is some authority to support the proposition that trespass may be actionable if it the defendant entered the land involuntarily but with negligence: Nickells v Mayor, Alderman, Councillors and Citizens of the City of Melbourne (1938) 59 CLR 219; (1938) 11 ALJ 568; [1938] ALR 154; [1938] HCA 14 (at 59 CLR 225-226 per Dixon J, as his Honour then was); League Against Cruel Sports v Scott [1986] QB 240; 2 All ER 489 (League v Scott); Barker v The Queen (1983) 153 CLR 338; (1983) 57 ALJR 426; (1983) 47 ALR 1; [1983] HCA 18 (Barker) (at 153 CLR 356-357 per Brennan J, as his Honour then was, and Deane J). Several learned texts also support that proposition: Halsbury's Laws of Australia (LexisNexis Butterworths, vol 26, service 569) at [415-480]; D Rolph et al. (eds), Balkin & Davis Law of Torts (LexisNexis Australia, 6th ed, 2021) [5.10] (citing League v Scott). In Ucak v Avante Developments [2007] NSWSC 367, Hammerschlag J (as the Chief Judge in Equity then was) referred at [27] to the question of whether negligence may be an element of the tort of trespass to land in certain circumstances as "complex and unsettled". His Honour did not need to decide the question in that case, which involved a strike out application. The parties have not referred me to any subsequent Australian authority that determines the question. I need not determine it in the present case because the evidence referred to later in these reasons clearly establishes that each defendant's acts in entering and dumping material on the Land were intentional. The element of intention (or negligence, if applicable) is directed to the act of the defendant in entering onto the plaintiff's land, and not to questions of whether the entry was authorised: Conway v George Wimpey & Co [1951] 2 KB 266; [1951] 1 All ER 363, at 2 KB 273; League v Scott; Barker at 470 (Dawson J); Balkin & Davis Law of Torts, supra, at [5.10]; C Sappideen and P Vines (eds), Fleming's The Law of Torts (Lawbook Co, 10th ed, 2011) at [5.20].
[3]
The legislative regime for the transport, storage and disposal of waste
Although Rove sues for trespass to land only, its pleaded cause of action in trespass included an allegation that each of the defendants had breached ss 143 and 144AAA of the POEO Act. Section 144AAA is irrelevant because it was introduced into the POEO Act by amending legislation that commenced after the date of the alleged trespasses on 13 and 14 July 2018. [9] Section 143(1) provides that a person who transports waste, or causes or permits waste to be transported, to a place that cannot lawfully be used as a waste facility for that waste, is guilty of an offence. Rove does not contend that it has any statutory cause of action for damages for the alleged contravention of s 143 and these proceedings are not proceedings for an offence under that section. However, as I have explained above, the provisions of the POEO Act concerning the transport and disposal of waste are potentially relevant to the pleaded defences that the defendants entered and deposited their material on the Land pursuant to an implied licence and, if trespass is proved, to Rove's claim for exemplary damages.
The salient provisions of the POEO Act that applied as at 13 and 14 July 2018 may be summarised as follows.
Chapter 3 of the POEO Act provided for the issue of environment protection licences authorising specified activities are that listed in Schedule 1 of the POEO Act (defined in s 5 as "scheduled activities").
Section 48 in Part 3.2 of Chapter 3 of the POEO Act provided:
"(1) Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on.
(2) Offence A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises.
Maximum penalty:
(a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues; or
(b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues."
Clause 1 of Part 1 of Schedule 1 to the POEO Act relevantly provided:
"(1) For the purposes of section 48, any activity that is declared by this Part to be a scheduled activity is taken to be an activity for which a licence is required for the premises at which it is carried out (the activity is premises-based)."
[4]
The Land
The Land is a vacant site of approximately 3.957 hectares.
Documents reviewed by expert witnesses in these proceedings indicate that approximately 12,000m3 of heavy metal and asbestos contamination on the northern part of the Land was contained by capping prior to 2000.
The Land was acquired by West Apartments Pty Ltd in 2004. It was proposed that a 13-lot subdivision would be undertaken by Demian Developments Pty Ltd. Mr Charbel Demian was a director of West Apartments Pty Ltd and was also associated with Demian Developments Pty Ltd.
In July 2006, an environmental site assessment commissioned by Demian Developments Pty Ltd concluded that there was some localised areas of lead and asbestos contamination on the Land, and recommended the following 'simple remedial and management activities":
"The south and western parts of the site which are covered by dark brown grey, sandy fill with FCS fragments and (amosite) asbestos fibres, should be remediated by surficial excavation and off-site disposal of the materials to a landfill facility licensed with the DEC to accept Asbestos Contaminated (Solid) Waste. Hand-picking of FCS fragments should be conducted wherever possible, to minimise the extent of soil excavation and thus reduce waste disposal costs.
Waste scrap metal, large FCS fragments and general building wastes should be collected, as part of a general surface clean-up, and disposed at appropriate DEC-licensed waste facilities."
Mr Demian gave evidence that this recommended remediation work was not carried out and that no other remediation work involving asbestos removal was undertaken on the Land in the period from 2006 to 2018.
Rove acquired the Land in October 2012. Mr Demian has been the sole director of Rove since 29 June 2017.
Mr Demian gave evidence that the Land had a fence around the whole of its boundary and that the vehicular entry gates were padlocked. There was only one key to the padlock, which was kept in the key cabinet in Mr Demian's office. The key was provided to employees of Rove and Linx Constructions Pty Ltd (Linx) from time to time for the purposes of inspecting the Land or supervising or managing work being carried out on the Land by contractors. Linx was a related company of Rove. Mr Demian arranged for employees of Linx to inspect the Land approximately fortnightly to monthly. When the key was given to an employee of Rove or Linx for the purpose of inspection or supervision and management of third party contractor works, Mr Demian was aware who had the key. Work carried out by third party contractors principally involved the maintenance work that is described in more detail below. The key was never provided to those third party contractors or their employees.
[5]
The events of 13 and 14 July 2018
Mr Demian gave evidence that Linx inspected the Land on 16 July 2018 after the real estate agents asked questions about work that appeared to have been carried out on the site. The Linx employee who conducted that inspection reported to Mr Demian that stockpiles of waste material had been dumped on the Land. Mr Demian promptly caused this to be reported to the NSW Police, Lane Cove Council and the Environment Protection Authority.
Rove tendered CCTV film taken on 13 and 14 July 2018 from a camera mounted on the premises of its neighbouring landowner, Harley Davidson. The film shows the vehicular entrance gates to the Land from Sirius Road in Lane Cove West and part of the access road that leads from those gates into the Land.
During cross-examination, Mr Demian was asked to make inquiries of Harley Davidson about whether CCTV film was available for dates earlier than 13 July 2018. Mr Demian did so, and reported back that Harley Davidson had determined that the CCTV film for earlier dates did not detect truck movements onto the Land and had therefore declined to release that film to Rove, citing privacy reasons. Another neighbouring landowner, Transurban, produced CCTV film to the Court in response to a subpoena issued by Rove, but no party tendered any part of that CCTV film. In these reasons, references to the CCTV film are references to the film tendered by Rove from Harley Davidson's camera on 13 and 14 July 2018.
The CCTV film for 13 July 2018 shows a person wearing a cap, carrying a small bag slung over their right shoulder and smoking from a cigarette held in their right hand approaching the closed Sirius Road entrance gates to the Land on foot at 6:49am on 13 July 2018. The film shows that person opening the gates and entering the Land. Mr Demian gave evidence that he did not recognise the person, and that he did not authorise the person to enter the Land or to provide access to the Land to any other person. There was no challenge to that aspect of Mr Demian's evidence in cross-examination.
In his affidavit sworn on 11 August 2021, Mr Demian described the CCTV film as showing the person "forcibly" entering through the gates to the Land. The CCTV film does not depict any use of force. The precise means by which the person opened the gates is not visible on the CCTV film, but they used only their left hand to do so. Their right hand remains visible by their side on the CCTV film while the gates are being opened. The person was swinging the gates open less than 30 seconds after first arriving at the closed gates. The CCTV film then shows the person walking through the open gates, placing their bag on the right-hand sight of the entrance road just inside the gates, and then continuing along the entrance road into the Land until they disappear from view.
[6]
Investigations conducted in the immediate aftermath of 16 July 2018
Rove reported its discovery of the dumped material to the EPA on or about 25 July 2018. The EPA inspected the Land on 31 July 2018. On 17 September 2018, the EPA wrote to Mr Demian referring to its inspection of the Land and stating that it was investing potential breaches of the POEO Act and seeking to identify the persons responsible for dumping the stockpiles on the Land. The letter also stated that Rove may choose to voluntarily clean up the waste whilst the matter was under investigation, and that any such action would need to ensure that all waste was removed and disposed of lawfully.
In about late July 2018, Mr Demian arranged for a drone to fly over the Land and film the condition of the Land. That film shows numerous mounds or piles of soil. The location of the piles and their volume was surveyed by Mr Aaron Millard, a registered surveyor of Ramsay Surveyors Pty Ltd, between 17 and 22 August 2018. Mr Millard provided a report on 4 September 2018 and a further report dated 11 February 2021 in which he identified 209 piles with an aggregate volume of 1,427.3m3. Mr Millard produced aerial photographs of the Land on which he superimposed the outline of each pile, ascribed an identifying number to each pile and recorded the cubic metre volume of each pile. A copy of those photographs is Annexure A to these reasons. The defendants did not challenge any aspect of Mr Millard's evidence.
In August 2018, Mr Adam Sullivan of Sullivan Environmental Sciences Pty Ltd was engaged to work together with Mr Millard to conduct a waste classification of the piles. Mr Sullivan holds a Bachelor of Science degree in Soil Science from the University of Sydney and is a Certified Environmental Practitioner specialising in Site Contamination under the certification scheme administered by the Environment Institute of Australia and New Zealand. He has 23 years' experience in the assessment and remediation of contaminated land.
Mr Sullivan prepared reports dated 18 September 2018 and 11 February 2021 in which he classified 811.6m3 of the soil waste in the piles as General Solid Waste (non-putrescible) and 615.7m3 of soil waste in the piles as Special Waste - Asbestos together with General Solid Waste (non-putrescible).
In his 11 February 2021 report, Mr Sullivan described in more detail the steps that he took for the purpose of classifying the piles. In summary:
1. Mr Sullivan visually inspected the outer surface of each individual pile and the inner surface at up to three evenly spaced locations of each pile, and documented the dominant soil material type in his field notes using industry standard soil logging descriptions (such as natural shale rock, sandy clay, natural sandstone rock);
2. Mr Sullivan's visual inspection included looking for indications of contamination, such as soil staining, discolouration and odours;
3. Mr Sullivan also used a photoionisation detector (or PID) to screen soil materials in each pile to detect any volatile chemicals;
4. Mr Sullivan observed that foreign materials that were visible on and in some of the piles included fragments of fibro cement. He recorded the location of these fragments in his field notes and collected 17 such fragments for analysis for the presence of asbestos;
5. after completing his visual inspections and PID screening, Mr Sullivan used his field notes to identify piles of similar soil type and composition, grouping what he determined to be "like" materials based on soil composition, colouring, consistency, presence of foreign material, and presence of fibro cement fragments. This resulted in 13 groups, which Mr Sullivan labelled A to M. Mr Sullivan had observed fibro cement fragments in the piles in seven of those 13 groups;
6. Mr Sullivan then collected 22 soil samples that he considered to be representative of the 13 groups. This included a sample taken from one or more piles in each group where fibro cement fragments had been observed; and
7. after receiving the results of the laboratory testing of the soil samples, Mr Sullivan then classified the 13 groups A to M in accordance with the "Waste Classification Guidelines, Part 1: Classifying Waste", published by the EPA in November 2014.
[7]
Rove's remediation of the Land
As referred to at [111] above, the EPA informed Mr Demian on 17 September 2018 that Rove may choose to voluntarily remove and lawfully dispose of all of the waste while the EPA was investigating the matter. The EPA's letter stated that any such clean up actions should include:
"a) Rendering the site safe;
b) Engaging a suitably qualified occupational hygienist to classify the waste;
c) Engaging a licensed asbestos removalist to undertake the removal work of asbestos waste;
d) Obtaining a Clearance Certificate from a Licensed Asbestos Assessor once the waste has been removed from the Premises;
e) Ensuring that the transport of asbestos waste is reported in the EPA's WasteLocate system…and
f) Ensuring that all waste is disposed of at a waste facility that can lawfully receive the waste."
During October 2018, Rove entered into negotiations for the sale of the Land to Airtrunk Lane Cove Pty Ltd. A call option deed dated 16 October 2018 between those two parties included a clause requiring Rove to remove all waste from the Land within six months after the date of the deed at its own cost, including the items identified in the EPA's letter dated 17 September 2018 and in Mr Sullivan's 18 September 2018 waste classification report.
In early February 2019, Rove engaged Mr Anthony Grieve to quantify the cost of removing and lawfully disposing of the waste material. Mr Grieve is a building consultant, civil engineer and project manager. He inspected the Land on 18 February 2019 and prepared a report dated 3 May 2019 that was tendered in these proceedings. On the basis of his site inspection and the information contained in Mr Millard's 4 September 2018 survey report and Mr Sullivan's 18 September 2018 waste classification report, Mr Grieve estimated the total costs of removal of the waste as $919,117 on the basis that all material to be removed would be treated as asbestos affected. Referring to the reports of Mr Millard and Mr Sullivan, Mr Grieve prepared a diagram showing the location of piles classified as containing asbestos compared to piles that were not so classified. The diagram in Appendix D to Mr Grieve's report showed that the piles that were classified as asbestos waste were interspersed throughout the whole of the site amongst the other piles. Mr Grieve's report stated:
"I considered the possibility of treating the piles not containing asbestos as virgin excavated natural material but because of the widespread distribution of the piles containing asbestos it was my opinion that all the material would have to be treated as asbestos affected because of the difficulty of ensuring that there was no cross contamination during loading."
[8]
Costs of remediation
Ramsay Surveyors Pty Ltd issued an invoice to Linx in the amount of $3,795 in respect of Mr Millard's work in September 2018.
Sullivan Environmental Sciences Pty Ltd issued invoices to Linx Construction Trust totalling $13,876.50 in respect of Mr Sullivan's work in September 2018.
Invoices tendered by Rove show that these amounts were then charged by Linx to Rove.
According to Mr Demian's affidavit sworn on 12 February 2021, Linx also paid a total amount of $843,219.10 to subcontractors in respect of the removal and disposal of the piles. Linx also charged the amounts of those invoices to Rove, plus a supervision fee of $84,589.07 charged to Rove. Mr Demian noted that the supervision fee was approximately 10 per cent of the subcontractor costs and described this as "a typical project management fee" in his experience.
Copies of invoices issued by various subcontractors to Linx, and copies of invoices issued by Linx to Rove, were tendered in evidence. Those invoices, which were conveniently listed in Rove's written closing submissions, show that the total amount charged by Linx to Rove was $945,479.64, including the Ramsay Surveyors and Sullivan Environmental Sciences invoices referred to above, the supervision fee referred to above, and GST. I have been unable to reconcile that figure with the total amounts referred to in Mr Demian's affidavit, the higher amount of $985,705.31 referred to in Rove's closing submissions, or the lower amount referred to in the closing submissions on behalf of Mr George Abousleiman. The amount of $945,479.64 calculated from the invoices is the most reliable figure, as invoices are contemporaneous business records evidencing the costs charged to Linx and on-charged to Rove. It is clear from the information contained on the invoices that the charges were for work relating to the removal of the 1,427.3m3 of dumped material from the Land and associated costs such as the hire of necessary equipment. I reject the submission made on behalf of Chomp that some (unspecified) adverse inference should be drawn against Rove for its failure to call any director, officer, executive, manager, accounts personnel or worker from any of the subcontractors.
Invoices issued by the subcontractor Xela Projects Pty Ltd to Linx contain separate charges for the disposal of 811.6m3 of "ENM" (referring to excavated natural material) and 616m3 of "GSW (ASB)" (referring to waste containing asbestos). The volume of asbestos waste stated in the invoices is the volume calculated by Mr Sullivan in his September 2018 report to Linx. The volume of "ENM" referred to in the invoices corresponds with the volume of general solid waste (non-putrescible) calculated in Mr Sullivan's September 2018 report. The joint expert report refers to Mr Sullivan subsequently classifying this waste as "ENM" in a report prepared for Linx dated 10 February 2019. Mr Sullivan's 10 February 2019 report was not in evidence in these proceedings. The separate fees charged by Xela Projects Pty Ltd in respect of the different types of waste indicate that the subcontractor did in fact differentiate between asbestos waste and other waste in the removal and disposal process, contrary to the approach that had been assumed by Mr Grieve. Based on the total volume and total contract price for each of type of waste specified in the invoice, Xela Projects charged $323.76 per cubic metre for the removal and disposal of ENM and $521.38 per cubic metre of asbestos waste for the removal and disposal of asbestos waste. [18]
[9]
Completion of the sale of the Land in October 2019
Rove transferred the Land to Airtrunk Lane Cove Pty Ltd on or about 21 October 2019.
[10]
Alleged trespass by Chomp
Rove's pleaded case against Chomp relates to three alleged trespasses on 13 July 2018 and one alleged trespass on 14 July 2018.
Chomp admits entering and depositing material the Land on three occasions on 13 July 2018 and two occasions on 14 July 2018, but pleads that the material was VENM within the meaning of the POEO Act which had been transported from a building site in North Sydney.
Chomp denies that it committed trespass and pleads that it entered the Land and deposited the VENM on the Land:
1. with Rove's consent given on 11 or 12 July 2018 by a person with actual or ostensible authority from Rove to do so; or
2. with the consent of the gatekeeper (Mr Abi Marlu) who was in possession of the Land at the time Chomp's trucks entered on 13 and 14 July 2018; or
3. pursuant to an implied licence that permitted Chomp to enter the Land for the for purpose of depositing loads of VENM in return for payment of a fee of $50.00 per load and on the condition that Chomp would follow the directions of the person in possession or control of the Land when depositing the VENM on the Land.
If it is found to have committed the alleged trespasses (which is denied), Chomp relies on the defences referred to at [11]-[12] above.
Mr Chris Tsompanidis has worked in excavation and demolition since 2003 and has been a director of Chomp since 2012. In his affidavit sworn on 19 April 2021, Mr Tsompanidis gave evidence that it was common for builders to contact Chomp requesting VENM for the purpose of filling their construction sites. He deposed to having answered a telephone call made to his business partner's mobile telephone on either 11 July or the morning of 12 July 2018. According to Mr Tsompanidis, the person on the telephone introduced himself "as being from a building and developing company". In cross-examination, Mr Tsompanidis said that the caller did give his name and the name of the company he claimed to be calling from, but that he no longer recalled these details. Mr Tsompanidis gave evidence that he was aware that illegal dumping is a plague on the construction industry, and that Chomp took care to ensure that it was not caught up in any illegal dumping. However, he did not make a record of the caller's name, even though he acknowledged that the caller "could have been anyone". When asked about this in cross-examination, Mr Tsompanidis said: "I wasn't expecting the person to disappear". There is no evidence that the caller "disappeared". Rather, the evidence shows that Mr Tsompanidis sent text messages to the unidentified caller on several occasions between 15 July 2018 and 23 July 2018 enquiring as to whether further loads could be delivered to the Land the following day. On each occasion, the unidentified caller either sent a reply to the effect that loads were not being accepted that day but would be accepted the following day, or did not respond at all. There is no evidence indicating that the unidentified caller's mobile phone number ceased operating or that Mr Tsompanidis' messages were not delivered to that number.
[11]
Alleged trespass by Haulbuild
Rove's pleaded case against Haulbuild related to one alleged trespass on 14 July 2018, but Haulbuild admits that its employed driver, Mr Ben De Bus, drove its truck onto the Land and dumped material on the Land on three occasions on 14 July 2018.
Haulbuild pleads that the material was VENM that it had transported from a building site at 20-22 George Street in Marrickville under a contract with Belzig Haulage Pty Limited. Haulbuild's director, Mr Adel Awick, gave evidence that Haulbuild is in the business of providing "wet hire" services, meaning that it hired out its truck and driver to transport material for third parties.
Mr George Moussa from Belzig Pty Ltd contacted Mr Awick on the afternoon of 13 July 2018 asking if Haulbuild could do a job on 14 July 2018. Mr Awick had previously met Mr Moussa, and Haulbuild had previously done work for Belzig Pty Ltd. Mr Awick accepted the job later that afternoon. He then received two text messages from Mr Moussa, the first of which read:
"1 x truck n dogs
Hourly
Start 7am
Jobsite - 20 george street marrickville
Tip site - 2 sirius road lane cove west
Radio in on approach
christina sent you
channel 26"
The second text message from Mr Moussa read:
"Customer SED"
Mr Awick copied the text message to a WhatsApp group thread that he and his business partner had with Mr De Bus. This was Mr Awick's usual way of communicating work instructions to Mr De Bus.
The information in Mr Moussa's text messages referred to above was the only information that Haulbuild had about the job. Mr Awick had never heard of SED before and did not know who Christina was or how she was connected to the job. Mr Awick had never been to the George Street site before. He did not know what that site was but assumed that excavation was occurring there. Mr Awick made no further inquiries about the George Street site or the "tip site" before Haulbuild's employed driver, Mr De Bus, carted excavated material from the George Street site to the Land on 14 July 2018 and dumped it there. Mr Awick took no steps to ensure that the material was uncontaminated and took no steps to find out whether the owner of the "tip site" had authorised - and wanted - the material to be taken there. Mr Awick gave evidence that he had relied on Belzig Pty Ltd or Mr Moussa to ensure that it was lawful and appropriate for the material from the George Street site to be taken to the Land. Mr Awick accepted in cross-examination that he should have taken steps to find out about both of those matters. Mr Awick also accepted that the material that he directed Mr De Bus to deliver to the Land might have contained all manner of contaminants. Mr De Bus simply followed Mr Awick's instructions without making any inquiries about the nature of the material being excavated from the George Street site, although he observed when he went to the site that it had already been excavated down to about two metres below ground level and that the material being loaded into Haulbuild's truck and trailer did not include any building material or concrete.
[12]
Alleged trespass by Mr El Kadomi
Mr El Kadomi has one truck and trailer that he hires out to third parties on a wet hire basis. Mr El Kadomi admits that his employed driver, Mr Angelo Cimone, took two loads of material excavated from a site in Marsden Park to the Land and dumped them there on 13 July 2018. Mr El Kadomi did not know this until he arrived at the Marsden Park site later that day to take over the driving from Mr Cimone. Mr El Kadomi himself drove a third load of material from the Marsden Park site to the Land later during the day on 13 July 2018, but decided not to dump it there due to the fee of $400 or $450 demanded by the gatekeeper, and his impression that the material could not legitimately be dumped on the Land. Mr El Kadomi attributed that impression to what he described as the gatekeeper's attitude.
Mr El Kadomi had made no inquiries about the Land as a tip site before driving his load of material there on 13 July 2018 at the suggestion of Mr Cimone, who had already dumped two loads of material there.
Mr El Kadomi was unable to adduce evidence from Mr Cimone, who is deceased. Mr El Kadomi relied on the evidence of Mr Itaoui, who was the builder at the Marsden Park site, and Mr El Ahmad, who excavated the material at that site which was then loaded into Mr El Kadomi's truck and driven away by Mr Cimone to be dumped on the Land. Both Mr Itaoui and Mr El Ahmad contended that the material was clean clay. In cross-examination, however, Mr El Ahmad agreed that he could not be sure that what he had excavated from the Marsden Park site was virgin material that had never previously been excavated and was contaminant free. Mr Itaoui accepted that he did not know whether the material was virgin material or fill. Thus, the evidence did not establish that the material was VENM. Even if it was VENM, it was "waste" within the meaning of the POEO Act. [31]
Mr El Kadomi gave evidence that his truck and trailer had a capacity of approximately 6m3 each (making an aggregate capacity of 12m3). I infer that Mr Cimone waited until the truck and trailer were at full capacity before driving to the Land to dump the material on the two occasions on 13 July 2018. It follows, and I find, that he dumped a total volume of approximately 24m3 of excavated material on the Land on 13 July 2018. By reference to images produced from the CCTV film shown to him during cross-examination, Mr El Kadomi identified his truck arriving at the Sirius Road entrance gates at 7:20am and 9:35am on 13 July 2018, driven by Mr Cimone. Having reviewed the CCTV film, it is clear that Mr Cimone intentionally drove the truck onto the Land on those two occasions, and I so find. Mr El Kadomi admits that Mr Cimone dumped the load that the truck was carrying on both of those occasions, and I infer that this was also intentional.
[13]
Alleged trespass by Mr George Abousleiman
In July 2018, Mr George Abousleiman was the owner of a demolition and haulage business. He admits entering and dumping material on the Land on three occasions on 13 July 2018 and on one occasion on 14 July 2018.
Mr George Abousleiman gave evidence that he excavated the material that he dumped on the Land from a site in Punchbowl where a childcare centre was being developed. He gave evidence that he reviewed the development consent for the Punchbowl site before he commenced work there and satisfied himself that the soil that would be excavated from the site would not be contaminated. However, the development consent that Mr George Abousleiman exhibited to his affidavit provides contradictory information about the excavation component of the development and provides no information reasonably capable of supporting a belief, much less a finding by the Court, that soil excavated from the site was not contaminated. On the one hand, the development consent states: "Given that the site has been used for only residential purposes and that there is no proposed excavation, the site is considered to be consistent with State Environmental Planning Policy 55 - Remediation of Land". On the other hand, the development consent states: "The development will involve excavation of part of the site to accommodate the development. Any excavated material not utilised elsewhere on the property, will require proper disposal and transport in accordance with the Waste Avoidance and Recovery Act, and the Protection of the Environment Operations Act." The second statement, that the development will involve excavation, was plainly correct as Mr George Abousleiman carried out that excavation. The correctness of the whole of the first statement is doubtful. Even assuming the correctness of the statement that the site had only been used for residential purposes, this does not provide any rational basis for drawing inferences about whether or not the site contained fill or material generated from demolition of previous buildings on the site, and whether not such fill or building waste contained contaminants.
Mr George Abousleiman and his brother, Mr Elie Abousleiman, gave the following evidence explaining how Mr George Abousleiman came to dump on the Land four loads of the material excavated from the Punchbowl Site on 13 and 14 July 2018.
[14]
Alleged trespass by Mr Daniel Gawidziel
Rove's pleaded case against Mr Gawidziel relates to one alleged trespass on 13 July 2018.
Mr Gawidziel did not file any notice of appearance or defence in the proceedings, but he attended the final hearing and informed the Court that he wished to appear for himself and defend the case against him. Despite my explaining to him repeatedly during the hearing that he would need to file a defence as the first step in seeking to defend the proceedings and despite my Associate sending to him information published by the Court for the assistance of self-represented litigants, Mr Gawidziel failed to file any defence and persisted in sending email communications to my Associate making various assertions concerning the subject matter of the proceedings. In fairness to Mr Gawidziel, it must be said that, despite the explanations and information provided to him, he appeared to struggle to comprehend the process of the hearing and what was required in order to file a defence. Mr Gawidziel's email correspondence to my Associate culminated in an email dated 17 September 2021 attaching a statutory declaration dated 16 September 2021 in which he set out what appeared to be his response to the substance of Rove's allegations against him. Orders were made pursuant to s 14 of the Civil Procedure Act 2005 (NSW) and rule 2.1 of the Uniform Civil Procedure Rules 2005 (NSW) dispensing with the requirement for Mr Gawidziel to file a Commercial List Response and directing that his statutory declaration be treated as his defence to the claims made against him and as his evidence in chief. Senior counsel for Rove very fairly did not oppose this course.
The substance of Mr Gawidziel's defence, as articulated in his statutory declaration and as emerged from his evidence in cross-examination, is that he directed one of his subcontracted drivers to dump material on the Land on 13 July 2018. In cross-examination and in closing submissions he said that he thought the date might in fact be 12 July 2018. The position as to the date was left in a state of confusion. The material was excavated from a site at Baulkham Hills, and Mr Gawidziel tendered a waste classification certificate in respect of that site which assessed the material as VENM. Mr Gawidziel gave evidence to the effect that another driver working at the Baulkham Hills site told him that a site at Lane Cove was accepting material. Mr Gawidziel then had a telephone conversation with a man named "Mitch", whom he had never met, and was told that he could dump material there for $50 per bin. Mitch agreed that Mr Gawidziel could pay for all of his drivers' loads at the end of the day. Mr Gawidziel provided the registration plates of his trucks to Mitch and asked for a copy of the development consent for the Lane Cove site, which Mitch indicated would be sent to him by email. Mr Gawidziel met Mitch in person that evening and paid for his drivers' loads. Mr Gawidziel agreed in cross-examination that he did not know at the time whether Mitch was the owner or operator of the Lane Cove site, or if he was a fraudster. He became concerned that he had still not received a copy of the development consent. He drove to the Land himself that evening and decided not to send his driver there anymore when he saw the sign indicating that the Land was for sale.
[15]
Causation and loss
As referred to at [28] above, the Court of Appeal in SLHD v Macquarie described the categories of case in which substantial damages may be awarded for trespass to land as including cases where the trespass involves loss to the plaintiff. In relation to that category, the Court stated: [36]
"[75] There is no doubt that damages awarded for the tort of trespass may be awarded in a conventional manner consistent with the cardinal compensatory nature of damages in tort. Thus, it is open to a plaintiff upon whose land a defendant has trespassed to seek damages which would put that plaintiff in the same position it would have been had the tort not been committed or, to use the language of Hoffmann LJ (as his Lordship then was), to recover the 'loss which he has suffered in consequence of the defendant's trespass': see Ministry of Defence v Ashman (1993) 25 HLR 513 at 519.
[76] If, for example, the trespass had caused some economic loss by preventing the plaintiff's use of its land (including the exercise of any contractual or statutory rights associated with its occupation of the land), there is no reason in principle why such loss could not be recovered…
[77] Damages may also be awarded in relation to any physical damage to the land in question (or chattel in the case of trespass to goods) caused by the trespasser."
Rove submits that each defendant's trespass materially contributed to Rove incurring the whole of the costs of removing and disposing of the 209 piles of material dumped waste from the Land. The work has been described at [138]-[145] above. The total cost evidenced by the invoices tendered by Rove was $945,479.64, including GST. As explained at [151]-[155] above, that total cost includes the fees charged for the work done by Mr Millard and Mr Sullivan to quantify and classify the piles of dumped material that Rove discovered on the Land on 16 July 2018, the fees charged by contractors engaged to remove and dispose of the whole of all of those piles, and a fee of charged by Linx for its supervision and management of the work. Rove characterises that total cost as the loss that it suffered as a result of the trespasses. Rove contends that each of the defendants materially contributed to the whole of that loss, and each defendant is therefore liable for the whole of that loss.
The defendants do not dispute the total costs incurred by Rove, [37] but they do dispute the characterisation of the total costs as one loss to which they each materially contributed.
[16]
Rove's applications for default judgment
Rove's pleaded case against Carlo relates to one alleged trespass on 13 July 2018. Carlo has not filed a defence or played any active role in the proceedings, and did not appear at the final hearing.
Rove's pleaded case Mr Kataieh relates to one alleged trespass on 13 July 2018. Mr Kataieh has not filed a defence or played any active role in the proceedings, and did not appear at the final hearing.
Rove's pleaded case against Mr Richard Gawidziel relate to one alleged trespass on 13 July 2018. Mr Richard Gawidziel has not filed a defence or played any active role in the proceedings and did not appear at the final hearing. Mr Daniel Gawidziel sought to represent Mr Richard Gawidziel, but I declined to grant leave to Mr Daniel Gawidziel to do so.
Rove filed a notice of motion on 16 February 2021 seeking default judgment against Carlo, Mr Kataieh, and Mr Richard Gawidziel for damages in an amount to be assessed. On the last day of the final hearing, Rove moved on that motion and adduced evidence of service of the statement of claim in each of those defendants.
The evidence that Rove relied on for the purpose assessing the quantum of damages sought against each of those three defendants by way of default judgment was limited to Mr Demian's evidence of the remediation operation and the total costs thereof in his affidavit sworn on 12 February 2021. That evidence does not enable the Court to assess the quantum of damages that should be awarded by way of default judgment against each of Carlo, Mr Kataieh and Mr Richard Gawidziel in respect of the undefended claim that each of them trespassed the Land on 13 July 2018. There is no evidence that would provide a rational basis for the Court to estimate the amount of material that each of them dumped on the Land and to then quantify compensatory damages by reference to the total remediation costs in the manner set out at [275]-[280] above. Accordingly, there will be an award of nominal damages of $100 each against Carlo, Mr Kataieh and Mr Richard Gawidziel.
I note for completeness that Rove did not move on the notice of motion for default judgment against Empire Transport Solutions Pty Ltd, Mr Jones, or Mr Daniel Gawidziel. The claim against Mr Daniel Gawidziel has been determined on the basis of his defence filed and evidence given during the final hearing. As referred to at earlier in these reasons, Rove discontinued its claim against Mr Jones during the final hearing and informed the Court that it no longer wished to press its claim against Empire Transport Solutions Pty Limited. As no notice of discontinuance was filed in relation to that defendant, there will be an order dismissing the proceedings against it so as to formally dispose of that claim.
[17]
Conclusion and orders
For all of the reasons above, the orders of the Court are as follows:
1. Judgment in favour of the plaintiff against the first defendant, Chomp Excavation & Demolition Pty Ltd:
1. for compensatory damages in the sum of $20,270.16, plus interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14 July 2018 calculated in accordance with Practice Note SC Gen 16; and
2. for exemplary damages in the sum of $25,000.
1. Judgment in favour of the plaintiff against the second defendant, Carlo Excavations Pty Ltd, for nominal damages in the sum of $100.
2. Judgment in favour of the plaintiff against the third defendant, Haulbuild Pty Ltd, for compensatory damages in the sum of $23,648.52, plus interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14 July 2018 calculated in accordance with Practice Note SC Gen 16.
3. Dismiss the plaintiff's claim against the fourth defendant, Empire Transport Solutions Pty Ltd.
4. Judgment in favour of the plaintiff against the fifth defendant, Mr Ahmad El Kadomi, for compensatory damages in the sum of $13,513.44, plus interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14 July 2018 calculated in accordance with Practice Note SC Gen 16.
5. Judgment in favour of the plaintiff against the sixth defendant, Mr Ahmad Kataieh, for nominal damages in the sum of $100.
6. Judgment in favour of the plaintiff against the eighth defendant, Mr George Abousleiman:
1. for compensatory damages in the sum of $13,513.44, plus interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14 July 2018 calculated in accordance with Practice Note SC Gen 16; and
2. for exemplary damages in the sum of $20,000.
1. Judgment in favour of the plaintiff against the ninth defendant, Mr Daniel Gawidziel, for compensatory damages in the sum of $9,386.21, plus interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14 July 2018 calculated in accordance with Practice Note SC Gen 16.
2. Judgment in favour of the plaintiff against the tenth defendant, Mr Richard Gawidziel, for nominal damages in the sum of $100.
I will hear the parties in relation to costs.
[18]
Annexure A
Annexure B
I certify that the 295 preceding paragraphs
are a true copy of the reasons for judgment
herein of Justice Williams
Dated: 24/03/2023
Associate to Williams J
[19]
Endnotes
Plaintiff's written closing submissions dated 5 October 2021, paragraph 51.
Plaintiff's written closing submissions dated 5 October 2021, paragraphs 5 and 18-24.
See [10] above.
Plaintiff's written closing submissions dated 5 October 2021, paragraph 55.
First defendant's written closing submissions dated 5 October 2021, paragraphs 12.2 and 14.
Plaintiff's written closing submissions dated 5 October 2021, paragraph 22; first defendant's written opening submissions dated 25 August 2021, paragraph 27; first defendant's written closing submissions dated 5 October 2021, paragraph 12.2.
Williams v Milotin (1957) 97 CLR 465; (1957) 31 ALJ 820; [1957] ALR 1145; [1957] HCA 83 (at 97 CLR 474, per Dixon CJ, Williams, McTiernan, Williams, Webb, and Kitto JJ); McHale v Watson (1964) 111 CLR 384; (1964) 38 ALJR 267; [1965] ALR 788; [1964] HCA 64 (at 111 CLR 388, per Windeyer J, trying the case at first instance because the plaintiff and defendant were residents of different states). The subsequent appeal in McHale v Watson was concerned only with the cause of action in negligence and the standard of care to be applied to the defendant, who was a child: (1966) 115 CLR 199; (1966) 39 ALJR 459; [1966] ALR 513; [1966] HCA 13.
Irlam v Byrnes (2022) 108 NSWLR 285; [2022] NSWCA 81 at [58] (Adams J) and [131] (Cavanagh J), and the authorities there cited.
Section 144AAA was enacted by the Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018 (NSW), to which assent was given on 28 November 2018.
Clause 50 of Schedule 1 defined "regulated area" as the area comprising numerous local government areas, including the Lane Cove local government area.
Part 9.1 in Chapter 9 of the POEO Act makes provision for exemptions.
Mr Sullivan's groups J, K, L and M.
Mr Sullivan's groups A, C, F, H, I and J.
Mr Sullivan's groups A, B, C, D and F.
Mr Sullivan's groups A, B, and J.
See [75] above.
See [139] above.
Exhibit 2, p 453.
In describing Chomp's submissions hereunder, I include submissions made on behalf of Mr Abousleiman, which Chomp expressly adopted.
[20]
Amendments
25 March 2023 - Cover sheet amendment: Counsel
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: 25 March 2023
The question whether an occupier of land has expressly or impliedly granted permission to an alleged trespasser is essentially a question of fact: Halliday v Nevill (1984) 155 CLR 1; (1984) 59 ALJR 124; (1984) 57 ALR 331; 13 A Crim R 250; [1984] HCA 80, at 155 CLR 6 (Gibbs CJ, Mason, Wilson and Deane JJ). There are some circumstances in which the law will imply a licence to enter land for certain lawful purposes, unless there is something additional in the objective facts negating the implied licence or indicating that it was revoked: Halliday v Nevill, at 155 CLR 7 (Gibbs CJ, Mason, Wilson and Deane JJ); Roy v O'Neill, (2020) 272 CLR 291; (2020) 95 ALJR 64; (2020) 385 ALR 187; (2020) 285 A Crim R 120; [2020] HCA 45 (Roy v O'Neill) at [11]-[13] (Kiefel CJ) and [66]-[67] (Keane and Edelman JJ).
A defendant will only be liable in trespass if they are present at and have taken part in the trespass, or if they have authorised or instigated others to commit the trespass: Balkin & Davis Law of Torts at [5.10].
Rove's submissions proceeded on the basis that, in order to establish trespass, it was necessary to show that the defendants acted intentionally, recklessly, or negligently, not only in entering onto the Land and dumping the material carried in their trucks on the Land, but also in contravening or failing to take reasonable steps to comply with the provisions of the POEO Act concerning the transport, storage and disposal of waste. [2] Rove pleaded that the defendants knew, or ought to have known, that their conduct in entering onto the Land and dumping their material on the Land was in breach of s 143 of the POEO Act, which makes it an offence to transport waste to a facility that cannot lawfully be used as a waste facility for that waste.
I accept that the question whether the defendants' conduct contravened the POEO Act is relevant to Rove's claim for trespass in the present case because some of the defendants contend that they were authorised to enter and deposit their material on the Land by, inter alia, an implied licence. [3] If it be established that it was an offence under s 143 of the POEO Act for the defendants to transport their material to the Land and deposit it there, that is one reason why the law would not imply a licence for them to enter the Land for that purpose.
I also accept that, if the alleged trespasses are established, then the provisions of the POEO Act that applied to the transport, storage and disposal of waste at that time will be relevant to Rove's claim for exemplary damages. That legislative regime will have some bearing on the question whether the defendants should be found to have acted "in contumelious disregard" of Rove's rights: Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325; [2020] NSWCA 274 (SLHD v Macquarie) at [78] and the authorities there referred to. The matters on which Rove relies in support of its claim for exemplary damages include that each defendant's conduct allegedly involved "illegal dumping of contaminated material and unwanted waste material" on the Land. [4]
I do not consider that any contravention of the POEO Act (whether intentional, reckless, or negligent) is otherwise relevant to Rove's causes of action for trespass to land. Rove sues the defendants in trespass only. Rove does not rely on the alleged breaches of s 143 of the POEO Act as giving rise to any additional cause of action. These proceedings are not proceedings for an offence under s 143.
Chomp submitted that it was necessary for Rove to establish that the defendants intended to cause loss to Rove, or that Rove was reckless or negligent as to whether or not loss would be caused, by the defendants entering and depositing their material on the Land. [5]
I reject that submission as fundamentally inconsistent with the fact that loss is not an element of the tort of trespass to land. As the Court of Appeal explained in SLHD v Macquarie at [73]-[75]:
"[73] The tort of trespass is an unusual one which exists 'though the damage be nothing': see Entick v Carrington (1765) 19 St Tr 1029 at 1066 per Lord Camden LCJ, cited by Brennan J in Halliday v Nevill (1984) 155 CLR 1 at 10; [1984] HCA 80. Trespass to land is actionable per se (see Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 135 LGERA 98 at [190] (Tellamist)) and 'so nominal damages are awarded as a recognition of the infraction of the plaintiff's possessory right': see Mayfair Ltd v Pears [1987] 1 NZLR 459 at 465.
[74] That is not to say, however, that substantial damages may not be awarded for the tort. They may fall into different categories, as Santow JA explained in Tellamist at [193]-[200], being (a) cases where there is a benefit to the defendant without actual loss to the plaintiff; (b) where the benefit to the defendant correlates to the actual loss to the plaintiff; and (c) where the trespass involves loss to the plaintiff and no correlative gain by the defendant. To these three categories may arguably be added a fourth, namely where there is no benefit to the defendant and no actual loss to the plaintiff. In such a case, only nominal damages would lie. As will be seen, this may be the position where a trespasser has made no actual use of the land whilst in unauthorised possession of it.
[75] There is no doubt that damages awarded for the tort of trespass may be awarded in a conventional manner consistent with the cardinal compensatory nature of damages in tort. Thus, it is open to a plaintiff upon whose land a defendant has trespassed to seek damages which would put that plaintiff in the same position it would have been had the tort not been committed or, to use the language of Hoffmann LJ (as his Lordship then was), to recover the 'loss which he has suffered in consequence of the defendant's trespass': see Ministry of Defence v Ashman (1993) 25 HLR 513 at 519."
In cases such as the present where the plaintiff claims substantial damages of the kind described as category (c) in SLHD v Macquarie at [74], damages can be recovered for harm that was the natural and probable consequence of the trespass, or harm that was intended: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] Aust Torts Reports 81-649; [2002] NSWCA 82 (TCN v Anning) at [100] (Spigelman CJ, Mason P and Grove J agreeing).
The other authorities cited by the parties concerning intention or negligence as an element of the tort of trespass to land and other property were directed to the intentional or negligent character of the defendant's unauthorised entry onto or interference with the plaintiff's land or property, and not to intention or negligence in causing loss to the plaintiff. [6]
I note for completeness that the parties also cited two cases involving claims for damages for personal injury arising from alleged negligence or trespass to the person. Neither of those cases support the proposition that intentional or negligent infliction of injury (as opposed to an intentional or negligent act, which directly or indirectly causes injury) is an element of an action for trespass to the person. [7] On the contrary, it is well established that an intention to injure the plaintiff is not an element of the tort of assault or battery. What must be intended is the act itself. [8] Nor do the personal injury cases cited by the parties stand for any other proposition that is capable of being extrapolated to support Chomp's submission in the present case involving trespass to land.
However, I accept that, if the defendants are found to have committed the alleged trespasses in the present case, and if Rove's claim is a single "apportionable claim" within the meaning of s 34(1)(a) and the defendants are held to be concurrent wrongdoers within the meaning of s 34(2) of the Civil Liability Act, then the question whether the defendants intended to cause loss to Rove will become relevant by reason of s 34A of the Civil Liability Act.
The activities declared by Part 1 of Schedule 1 to be scheduled activities included "waste disposal by application to land" and "waste storage" as defined in clauses 39 and 42 (respectively).
Before turning to the provisions of clauses 39 and 42 of Part 1 of Schedule 1, it is convenient to note that the POEO Act defines "waste" as including:
"(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or
(b) any discarded, rejected, unwanted, surplus or abandoned substance, or
(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or
(d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or
(e) any substance prescribed by the regulations to be waste."
The term "substance" is broadly defined as including "matter or thing".
A "substance" is "waste" if it falls within any one or more of paragraphs (a) to (e) of the definition of "waste" set out above. Indeed, the definition is inclusive, such that a substance may be "waste" even if it does not fall within one of those paragraphs: Environment Protection Authority v Grafil Pty Ltd (2019) 101 NSWLR 245; (2019) 238 LGERA 147; [2019] NSWCCA 174 (EPA v Grafil) at [99], [115]-[132] (Preston CJ of LEC, Davies and Adamson JJ agreeing).
Part 3 of Schedule 1 of the POEO Act contained definitions of various types of waste, including:
(1) "general solid waste (non-putrescible)", which included:
(a) "virgin excavated natural material", which was in turn defined as:
"… natural material (such as clay, gravel, sand, soil or rock fines):
(a) that has been excavated or quarried from areas that are not contaminated with manufactured chemicals, or with process residues, as a result of industrial, commercial, mining or agricultural activities; and
(b) that does not contain any sulfidic ores or soils or any other waste,'
and includes excavated natural material that meets such criteria for virgin excavated natural material as may be approved for the time being pursuant to an EPA Gazettal notice."
(b) "building and demolition waste", which was relevantly defined as unsegregated material not containing asbestos waste or liquid waste that resulted from the demolition, erection, construction, refurbishment or alternation of buildings, but excluding excavated soil; and
(2) "special waste", including "asbestos waste" which was defined as "any waste that contains asbestos".
Waste falls within the definition of "asbestos waste" if it includes any asbestos, irrespective of the quantity of the asbestos or its relative proportion to the total volume of the waste: EPA v Grafil at [325]-[329].
Clause 39 of Part 1 of Schedule 1 to the POEO Act relevantly provided:
"(1) This clause applies to waste disposal by application to land, meaning the application to land of waste received from off site, including (but not limited to) application by any of the following methods:
(a) spraying, spreading or depositing on the land,
(b) ploughing, injecting or mixing into the land,
(c) filling, raising, reclaiming or contouring the land.
(2) However, this clause does not apply to an activity that involves any of the following:
(a) sites inside the regulated area that, over any period of time, receive from off site a total of no more than 200 tonnes of the following waste (and no other waste):
(i) building and demolition waste only,
(ii) building and demolition waste mixed with virgin excavated natural material,
(b) …
(c) …
(d) …
(e) sites where only virgin excavated natural material is received from off site and applied to the land,
(f) …
(3) The activity to which this clause applies is declared to by a scheduled activity.
(4) …"
Clause 42 of Part 1 of Schedule 1 to the POEO Act relevantly provided:
"(1) This clause applies to waste storage, meaning the receiving from off site and storing (including storage for transfer) of waste.
(2) …
(2A) …
(2B) This clause also does not apply to the receiving of virgin excavated natural material from off site and its storage if the only waste received is virgin excavated natural material.
(3) The activity to which this clause applies is declared to be a scheduled activity if:
(a) more than 5 tonnes of hazardous waste, restricted solid waste, liquid waste or special waste (other than waste tyres) is stored on the premises at any time;
(b) more than 5 tonnes of waste tyres or 500 waste tyres is stored on the premises at any time (other than in or on a vehicle used to transport the tyres to or from the premises), or
(c) more than the following amounts of waste (other than waste referred to in paragraph (a) or (b)) are stored on the premises at any time:
(i) in the case of premises in the regulated area - more than 1,000 tonnes or 1,000 cubic metres,
(ii) …or
(d) more than the following amounts of waste (other than waste referred to in paragraph (a) or (b)) is received per year from off site:
(i) in the case of premises in the regulated area - 6,000 tonnes,
(ii) …
(4) …"
The Land is in the "regulated area" referred to in clauses 39(2)(a) and 42(3)(c) and (d) of Part 1 of Schedule 1 to the POEO Act. [10]
Storage in clause 42 does not require any particular duration or degree of permanence and includes temporary storage: EPA v Grafil at [188]-[193].
An activity may fall within more than one of the activities declared by Part 1 of Schedule 1 to the POEO Act to be a scheduled activity. The stockpiling and spreading on land of waste received from off site may be a scheduled activity by reason of clause 39 and also by reason of clause 42 of Part 1 of Schedule 1: EPA v Grafil at [194]. It is the carrying on of any scheduled activity on land, in circumstances where the occupier does not hold a licence authorising the scheduled activity to be carried on at that land, that constitutes an offence by the occupier under s 48(2) of the POEO Act.
Parts 3.3 to 3.8 of the POEO Act provided for the issue of licences by the Environment Protection Authority (EPA), the conditions that may be attached to such licences and the duration, review, suspension, revocation and surrender of such licences.
Chapter 5 of the POEO Act created certain offences, including ss 143 and 144.
Section 143 relevantly provided:
"(1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.
Maximum penalty:
(a) in the case of a corporation - $1,000,000, or
(b) in the case of an individual - $250,000.
(2) Proof of lawfulness In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste.
(3) …
(3A) Defence - approved notice It is a defence in any proceedings for an offence under this section if the defendant establishes that:
(a) an approved notice was, at the time of the alleged offence, given to the defendant by the owner or occupier of the place to which the waste was transported or was displayed at the place, and
(b) the approved notice stated that the place could lawfully be used as a waste facility for the waste, and
(c) the defendant had no reason to believe that the place could not lawfully be used as a waste facility for the waste.
(3B) However, it is not a defence in such proceedings for the defendant to establish that the defendant relied on the advice (other than advice in the form of an approved notice) given by the owner or occupier concerned to the effect that the place could, at the time of the alleged offence, be lawfully used as such a waste facility.
(3C) Defence - waste not deposited It is a defence in any proceedings for an offence under this section if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported."
The POEO Act defined "waste facility" as meaning:
"Any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations)."
If the storage, treatment, processing, sorting or disposal of the transported waste at the premises is a scheduled activity, and the occupier of the premises does not hold a licence issued under Chapter 3 of the POEO Act authorising that activity to be carried on at the premises and no exemption issued under the POEO Act applies to that activity at those premises, [11] that is one reason why the premises cannot lawfully be used as a waste facility for the transported waste. If it is not a scheduled activity, or if the occupier of the premises does hold a licence authorising the scheduled activity or a relevant exemption, other factors may be relevant to the question whether the premises can lawfully be used as a waste facility for the transported waste. Those factors include whether any development consent required for that use of the premises has been issued by the appropriate authority: EPA v Grafil at [336].
Section 143(4) of the POEO Act defined "approved notice" as meaning a notice in a form approved by the EPA stating that the place specified in the notice can lawfully be used as a waste facility for the waste specified in the notice and containing a certification by the owner or occupier of the place that the statement is correct.
Section 144 of the POEO Act relevantly provided:
"(1) A person who is the owner or occupier of any place and who uses the place, or causes or permits the place to be used, as a waste facility without lawful authority is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation - $1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or
(b) in the case of an individual - $250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues."
It is not an element of an offence under s 144 that the use of the land, in accordance with planning law concepts, was for the purpose of a waste facility. It suffices that, in the circumstances giving rise to the alleged evidence, the land was in fact used as a waste facility: EPA v Grafil at [145].
The element of "without lawful authority" includes not only the absence of a licence issued under Chapter 3 of the POEO Act, but also not obtaining any development consent required for the operation of the waste facility under the Environmental Planning and Assessment Act 1979 (NSW): EPA v Grafil at [336].
In about late 2016, Mr Demian arranged for four concrete barriers, each about 3.5 metres wide and weighing two tonnes, to be placed inside the vehicular entrance gate to the Land. The barriers were placed in pairs 15 metres and 30 metres behind that gate and could only be moved using heavy machinery or a crane. The concrete barriers are clearly visible in aerial photographs of the entrance gates to the Land taken on 4 November 2016 and 15 April 2018 and are placed so that each set of two barriers covers the entire width of the access road from the entrance gates into the Land. A further aerial photograph was taken on and 5 May 2018 in which neither the entrance gate nor the first set of concrete barriers inside the gate are clearly visible. The location of the entrance gate and the location where the first set of barriers had been visible in the earlier photographs are heavily shadowed by the surrounding trees in that photograph. The second set of concrete barriers is clearly visible in the 5 May 2018 photograph. Contrary to the proposition put to Mr Demian in cross-examination, the photograph depicts the two barriers in that second set remaining in their previous position covering the width of the access road, albeit the boundary of the access road is less clearly delineated than in the previous photographs due to vegetation growth.
In cross-examination, Mr Demian denied that the concrete barriers had been installed in response to persons gaining unauthorised access to the Land. Mr Demian gave evidence to the effect that the barriers were installed as an additional precautionary security measure against illegal dumping, which he described as a problem "all over Sydney".
Mr Demian gave evidence that he is familiar with the Land, having walked around it many times, and that Rove did not use the Land as a dumping site or have the Land filled. Mr Demian also gave evidence that he did not see any piles of waste or other material on the Land at any time prior to 13 July 2018. According to Mr Demian, the only work undertaken on the Land after Rove acquired it in October 2012 was annual maintenance work that included stabilisation and sedimentation controls and removal of shrubs and weeds.
It was submitted on behalf of Chomp that Mr Demian's denial that Rove had used the Land as a dumping site and had not had the Land filled was not credible, because the July 2006 report referred to at [61] above had identified the presence of fibrous cement sheeting fragments, building waste, and scrap metal on the Land, and had identified asbestos as a contaminant of concern.
I reject that submission. The July 2006 report was not admitted as evidence of the truth of its contents. Even if the report had been tendered without any limitation, the evidence would not support Chomp's contention that the reported matters referred to immediately above were attributable to the use of the Land by Rove, West Apartments Pty Ltd, or Demian Developments Pty Ltd. The report described a history of contamination of the Land beginning before 1995, almost a decade before West Apartments Pty Ltd purchased the Land in 2004. It was not put to Mr Demian in cross-examination that West Apartments Pty Ltd or Demian Developments Pty Ltd were responsible for any of the matters described in the report. Rove did not acquire the Land until six years after the report was published.
Chomp also submitted that Mr Demian's denial of having seen any piles or waste on the Land prior to 13 July 2018 was not credible because he conceded in cross-examination that an aerial photograph of the Land taken on 15 June 2010, whilst difficult to interpret, appeared to show a pile of burnt trees in an area that appeared to have recently been cleared of vegetation.
I reject that submission. The aerial photograph had been taken from a considerable height above the Land and was indeed difficult to decipher. Mr Demian nevertheless cooperated with the cross-examiner's questions that required him to interpret the photograph. Contrary to Chomp's submission, Mr Demian's identification of what appeared to be a pile of burnt trees is not inconsistent with his evidence that he did not see piles of waste on the Land prior to 13 July 2018. It was not put to Mr Demian that he saw the pile that he identified in the 15 June 2010 photograph at any time when he inspected or attended the Land prior to the events giving rise to these proceedings.
Similar submissions made by Chomp by reference to other photographs and evidence concerning the clearance of vegetation during annual maintenance of the Land in the years prior to 2018 were misconceived for the same reason, and because there is no evidence to suggest that any piles of cleared vegetation generated by those processes remained on the Land for any period of time.
Annual maintenance work carried out during May and June 2018 included clearing vegetation from a large section of the Land in anticipation of the campaign that Rove was about to embark on to sell the Land. A Linx project manager used the key to the locked entrance gates to facilitate the maintenance contractor's access to the Land during this period.
Mr Demian gave evidence in cross-examination that he inspected the Land on several occasions leading up to 4 June 2018, which that was the last time that he personally inspected or attended the Land before being informed on 16 July 2018 that material appeared to have been dumped on the Land. Mr Demian gave evidence that he did not see piles of waste on the Land during his inspections in the period up to 4 June 2018.
Mr Demian was cross-examined at some length about the extent to which the 2018 maintenance work involved excavation of soil and other material from the Land. Mr Demian was shown several photographs of the Land taken on 31 May 2018 and asked questions about the extent to which the earth had been disturbed or excavated during the work and whether any excavated material had been stockpiled on site. Mr Demian accepted that the photographs showed some disturbance of the soil and, in two instances, some relatively small areas of excavation which he attributed to the removal of shrubs. Mr Demian did not accept that any material so excavated had been stockpiled on site. To my eye, the photographs did not depict any stockpiling of material. As I understood it, the object of those questions and the criticisms made in the defendants' submissions about Mr Demian's answers was to support a contention that some of the 209 piles discovered on the Land on 16 July 2018 might have been excavated from the Land by Rove or its maintenance contractor, rather than deposited on the Land by the defendants or other third parties on 13 and 14 July 2018. The evidence does not support that contention. As referred to in more detail at [131]-[136] below, the expert evidence establishes that the 209 piles discovered on 16 July 2018 included many piles with a dominant soil type that could not have been excavated from the Land. Those piles were interspersed throughout the 209 piles in a manner that renders it improbable that some of the piles were excavated from the Land.
On about 12 June 2018, Rove engaged CBRE Pty Ltd (CBRE) and Savills NSW Pty Ltd (Savills) as its agents for the marketing and sale of the Land. Mr Demian gave evidence that CBRE and Savills would have arranged for prospective purchasers to inspect the Land during the period leading up to 13 July 2018. Mr Amadeo Banzato, who was employed by Rove or by Mr Demian, was responsible for liaising with the sales agents to arrange inspections. Mr Banzato had access to the key to the gates to the Land for that purpose. A campaign update report issued by CBRE and Savills on 11 July 2018 recorded that two prospective purchasers had inspected the Land at that stage of the campaign.
Counsel for Chomp made a submission inviting the Court to draw "inferences that are appropriately adverse to the Plaintiff's case, on the basis of the principles laid down in Jones v Dunkel" from Rove's failure to call any director or officer of Linx (other than Mr Demian), any person involved in the construction of the fence securing the Land, and all persons to whom Rove provided the key to the padlocked Sirius Road entrance gates at any time, including the Linx project managers who conducted the inspections of the Land or supervised maintenance work on the Land, Mr Banzato, and the CBRE and Savills personnel who conducted the marketing campaign in 2018. Counsel for Haulbuild made a similar submission in relation to Rove's failure to call Mr Banzato and project managers to whom the key was provided.
Counsel for Chomp and Haulbuild did not articulate the inferences for which they contended, save to say that the inferences would be "adverse" to Rove. I decline their invitation to draw those unspecified adverse inferences. Mr Demian gave evidence about the construction of the fence and the padlock installed on the Sirius Road entrance gates. He explained the manner in which access to the only key was controlled and the limited purposes for which employees of Rove and Linx were permitted to use the key. Those aspects of Mr Demian's evidence were not challenged in cross-examination. The evidence is inherently plausible, being consistent with the cautionary approach evidenced by the installation of the concrete barriers in late 2016. The principles in Jones v Dunkel do not require a party to call cumulative evidence: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [81] (Gleeson JA, with whom the other members of the Court of Appeal agreed) and the authorities there referred to. I do not consider that the circumstances of the present case required Rove to call each and every person known to have had access to the key at any time since 2012. Even if the case had called for Rove to provide an explanation of its security processes beyond Mr Demian's (unchallenged) evidence, the principles in Jones v Dunkel would not permit the Court to infer that the evidence of any of those persons would have been adverse to Rove: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; (2011) 85 ALJR 533; (2011) 276 ALR 375; [2011] Aust Torts Reports 82-088; [2011] HCA 11 at [64] (Heydon, Crennan and Bell JJ); Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; (2012) 86 ALJR 522; (2012) 286 ALR 501; (2012) 88 ACSR 246; (2012) 7 BFRA 408; (2012) 30 ACLC 12-013; [2012] HCA 17 at [165]-[167] and [232] (per curiam).
The evidence tendered in these proceedings included many aerial photographs and other images of the Land taken at various different times. None of those photographs were proved to have been taken immediately prior to 13 July 2018.
Mr Elie Abousleiman went to the Land on 12 July 2018 and recorded an eight second video on his mobile phone at 9:17am. The video shows parts of the Land in the vicinity of part of the access road that runs through the Land from the Sirius Road entrance gates. No mounds or piles of soil or other material are visible on the part of the Land shown in the video, but the surface of the earth appears to have been disturbed relatively recently. Three dump trucks are visible in the video and one of them has a trailer. Mr Demian gave evidence that he was not aware of the presence of trucks on the Land on 12 July 2018. The video does not depict the whole of the area of the Land in the vicinity of those dump trucks and it is not possible to ascertain from the video whether there were mounds or piles of soil in that area. Mr Elie Abousleiman gave evidence that he saw a significant number of piles of soil on the Land while he was there, many of which were being moved and levelled out by heavy machinery that he saw there. Mr Elie Abousleiman added a caption to the video that read: "New tip boys - Lane Cove West". He gave evidence that he only sent the video to his brother, Mr George Abousleiman. He denied posting it on any website or chat group or otherwise publishing it more widely than to his brother.
The concrete barriers referred to at [65] above are not visible on the CCTV film of the unidentified person opening the gate on 13 July 2018. The film depicts a person walking along the access road from inside the Land towards the gates approximately seven minutes after the gates were opened. The person is dressed in the same way and appears to me to have the same gait as the person who opened the gates. The person returns to the location on the right-hand side of the access gates where the bag was left earlier, removes some clothing from their upper body and puts on a high visibility vest. The person then waits in that location, walking around occasionally in the vicinity of the gates and on the road immediately outside the gates, until 7:20am, when trucks begin to arrive at the gates.
The CCTV film shows a large sign located immediately to the right of the entrance gates that reads: "Expressions of Interest - Large Land Holding". The sign also states: "Suitable for Owner-Occupiers and Developers". There are no other signs visible in the CCTV film.
The CCTV film shows the first truck stopping just inside the entrance gates and the person in the high visibility vest walking towards the driver's window where they remain standing for a short time, gesturing with their hands, looking in the direction of the drivers' cab and apparently speaking to the driver. The person points with their right arm in the direction away from the gates (pointing further into the area of the Land) and the truck begins to drive along the access road almost immediately thereafter. The CCTV film shows the truck driving along the access road without stopping. That is to say, the truck's progress does not appear to have been impeded by any barrier.
The CCTV film shows a second truck arriving at 7:29am. A similar interaction appears to occur between the driver and the person in the high visibility vest, save that that driver's arm is shown reaching out of the window and handing something to the person, which the person then places in their back pocket, before the truck proceeds down the entrance road.
I have not viewed the remaining 10 hours and 30 minutes of the CCTV film for 13 July 2018, save for those parts that were referred to in the cross-examination of witnesses or in the parties' submissions.
Based on his review of the CCTV film, Mr Demian gave evidence that trucks entered the Land on 54 occasions between 7:20am and 4:21pm on 13 July 2018.
As discussed at [159]-[209] below, Chomp entered and dumped material on the Land on three occasions on 13 July 2018.
As discussed at [227]-[232] below, Mr El Kadomi's employed driver entered and dumped material on the Land on two occasions on 13 July 2018.
As discussed at [234]-[252] below, Mr George Abousleiman entered and dumped material on the Land on three occasions on 13 July 2018.
As discussed at [254]-[260] below, Mr Gawidziel's employed or contracted driver entered and dumped material on the Land on one occasion on 13 July 2018.
Mr Jones has worked in the earthmoving business for more than 50 years. He gave evidence that he received a telephone call from Mr Anthony Abi Marlu on 13 July 2018 asking him to be at 1 Sirius Road in Lane Cove the following morning for a job. Mr Jones knew Mr Abi Marlu, having met him a few weeks earlier in connection with another job that he had done for him. Mr Abi Marlu told that him the job at Lane Cove was for his brother.
The CCTV film for 14 July 2018 shows a truck carrying earthmoving equipment arriving at the Sirius Road entrance gates in darkness at 5:55am. In cross-examination, Mr Jones identified that as his truck and track loader, and identified himself as the driver.
The CCTV film shows Mr Jones opening the gates at 6:30am and driving his track loader inside the gates at 6:45am. Mr Jones gave evidence that he opened the entrance gates to the Land with a code that had been provided to him by text message from Mr Abi Marlu a short time earlier. During cross-examination, Mr Jones produced the text message that he received from Mr Abi Marlu containing the code to open the entrance gates. Mr Jones gave evidence identifying the mobile telephone number from which he received that message.
The CCTV film shows a person arriving at the Sirius Road entrance gates on foot at 6:44am. From their physical appearance and gait recorded on the film, that person appears to be the same person as the person shown arriving on foot in the CCTV film dated 13 July 2018. They are carrying the same bag, or a bag of very similar appearance. Mr Jones identified the person as Mr Abi Marlu. At the time of Mr Abi Marlu's arrival, Mr Jones' truck is visible parked just outside the gates and Mr Jones can be seen working to offload his track loader from the back of his truck.
The CCTV film shows Mr Jones driving his track loader through the gates at 6:45am and stopping just inside the gates. Mr Abi Marlu is seen walking over to the track loader and appears to be speaking with Mr Jones. Mr Abi Marlu points with his right hand in the direction further into the area of the Land, away from the gates. Mr Jones gave evidence that Mr Abi Marlu was pointing him to the areas of the Land where he was required to level the mounds and to build a road so that trucks could go down around the corner. After about 90 seconds, Mr Jones' track loader is seen moving away and proceeding down the access road into the Land.
Mr Jones gave evidence that he saw numerous mounds of soil throughout the site and that he worked on levelling the mounds until 11:00am, when he received a telephone call telling him to stop work. He could not estimate how many mounds he had levelled before finishing work.
Mr Demian was asked in cross-examination whether he knew Mr Jones or Mr Abi Marlu. Mr Demian answered that he did not, and the cross-examiner did not challenge that answer.
Mr Abi Marlu did not appear in response to a subpoena issued by Haulbuild. Although Chomp made an application for a bench warrant for his arrest at one stage during the final hearing, it did not pursue that application to completion and ultimately withdrew the application and abandoned any attempt to call Mr Abi Marlu to give evidence. No steps were taken by any other defendant to adduce evidence from Mr Abi Marlu.
The CCTV film for 14 July 2018 records the first truck (with the exception of Mr Jones' vehicle) arriving at the Sirius Road entrance gates at 7:09am. There was no one waiting on foot at the gates at the time. The truck is seen driving through the gates without stopping and proceeding part of the way down the entrance road. A person wearing a high visibility vest can be seen approaching the access road, whereupon the truck stops. After about two minutes during which the person remains beside the truck, the truck is seen to turn left and drive uphill within the Land until it is out view of the CCTV camera.
I have not viewed the remaining six hours and 20 minutes of the CCTV film for 14 July 2018, save for those parts that were referred to in the cross-examination of witnesses or in the parties' submissions.
Based on his review of the CCTV film, Mr Demian gave evidence that trucks entered the Land on 20 occasions between 7:09am and 1:17pm on 14 July 2018.
As discussed at [159]-[209] below, Chomp entered and dumped material on the Land on two occasions on 14 July 2018.
As discussed at [211]-[225] below, Haulbuild entered and dumped material on the Land on three occasions on 14 July 2018.
As discussed at [234]-[252] below, Mr George Abousleiman entered and dumped material on the Land on one occasion on 14 July 2018.
Mr Demian gave evidence that he did not authorise any vehicular access to the Land on 13 and 14 July 2018, and that he did not consent to any person entering the Land on those dates.
Annexure B to these reasons is a copy of Mr Sullivan's table listing his 13 groups A to M, identifying the piles included in each of those groups and listing the waste classification that he assigned to each of those groups.
Mr Millard's annotated aerial photographs at Annexure A to these reasons show that the 209 piles were located in clusters in four different areas of the Land, with the two largest areas being located on either side of the access road that runs through the Land from the Sirius Road entrance gates in an east westerly direction before curving to the north. A comparison of the numbered piles on Annexure A with the pile numbers identified in Mr Sullivan's waste classification Annexure B to these reasons reveals that:
1. the cluster of piles numbered 1 to 26 depicted on sheet 2 of Mr Millard's annotated aerial photographs comprised four different soil types, [12] with 18 of the piles located throughout the cluster of 26 being classified as asbestos waste;
2. the cluster of piles numbered 27, 28, and 72 to 183 depicted on sheet 3 of Mr Millard's annotated aerial photographs comprised six different soil types, [13] with 40 of the piles located throughout the cluster of 114 piles being classified as asbestos waste;
3. the cluster of piles numbered 29 to 71 depicted on sheet 4 of Mr Millard's annotated aerial photographs comprised five different soil types, [14] with three of the piles located throughout the cluster of 43 piles being classified as asbestos waste; and
4. the cluster of piles numbered 184 to 209 depicted on sheet 5 of Mr Millard's annotated aerial photographs comprised three different soil types, [15] with two of the piles located throughout the cluster of 26 piles being classified as asbestos waste.
The evidence of Mr Sullivan and Mr Millard does not purport to identify which specific piles were deposited on the Land by any of the defendants in these proceedings.
Mr Abousleiman tendered a report of Dr Cheryl Halim dated 14 May 2021. Dr Halim has a Bachelor Engineering (Chemical Engineering) and Doctor of Philosophy in Chemical Engineering. Dr Halim has approximately 15 years' experience in contaminated land consultancy, including the management of asbestos assessment and remediation projects.
The following three themes emerged from Dr Halim's report, which were then addressed in a report prepared by Mr Sullivan dated 8 July 2021 in reply to Dr Halim, in a report dated 20 August 2021 prepared by Mr Sullivan and Dr Halim jointly following their conclave, in a further report prepared by Mr Sullivan dated 23 August 2021 expressing further opinions in relation to the points of disagreement that remained between the experts following their joint conference, and in cross-examination of Mr Sullivan and Dr Halim:
1. criticisms of Mr Sullivan's methodology and approach to the waste classification;
2. whether the piles classified by Mr Sullivan comprised material excavated from the Land or comprised material brought onto the Land from elsewhere; and
3. alternative ways in which asbestos contamination might have been remediated without removing all of the piles from the Land.
Before addressing the substance of each of these themes, it is necessary to deal with a submission made by Chomp criticising Mr Sullivan's conduct in preparing his report dated 23 August 2021 after the experts had conferred and produced their joint report. Mr Sullivan's 23 August 2021 report was admitted into evidence without objection. In closing submissions, Chomp submitted that the report was an attempt by Mr Sullivan to narrow the scope of his agreement and to reinforce his disagreements with Dr Halim recorded in their joint report and that "the Court should deprecate this backsliding as a professional embarrassment to his expert credibility".
I reject Chomp's submission. Mr Sullivan's 23 August 2021 report does not narrow the scope of any agreement that he expressed with Dr Halim in their joint report. Rather, Mr Sullivan sets out verbatim what the experts wrote in their joint report about key points of disagreement and then expands on his reasons for disagreement. It would have been preferable for all of Mr Sullivan's reasons for disagreement to be included in the joint report. However, where further reasons for disagreement occur to an expert after the joint report has been completed, it is entirely consistent with the expert's duty to the Court and with the Expert Witness Code of Conduct for those supplementary reasons to reduced to writing in a further report. The submission that Mr Sullivan was "backsliding" or that his conduct in preparing his 23 August 2021 report was embarrassing to his professionalism or to his credibility as an expert witness was baseless, and should not have been made. The position might have been different if Mr Sullivan had not participated in the joint conference and joint report in good faith, or had deliberately withheld from the joint report the additional reasons that he expressed in his 23 August 2021 report. But there is no evidence to suggest that this occurred, and it was not put to Mr Sullivan in cross-examination. Indeed, neither Chomp nor any other defendant raised any issue with Mr Sullivan in cross-examination concerning his independence and compliance with his duties as an expert witness in the preparation of any of his reports or in his oral evidence.
In relation to the first theme referred to at [120] above, the following issues raised by Dr Halim concerning Mr Sullivan's approach to the sampling, grouping, and testing of the piles and classification of the waste remained live following the preparation of their joint report:
1. whether Mr Sullivan's approach to sampling the soil from each of the 209 piles was consistent with Schedule B2 ('Guideline on Site Characterisation') of the National Environmental Protection (Assessment of Site Contamination) Measure 1999 (as amended in 2013) (NEPM B2);
2. Mr Sullivan's 11 February 2021 report provided only three photographs of three stockpiles, which Dr Halim considered "does not allow verification of the accuracy of stockpile segregation" which was "crucial" information given that Mr Sullivan had segregated the materials into groups A to M "based on the appearance of each stockpile"; and
3. Dr Halim's opinion that it was inappropriate to test only 22 soil samples from the 209 piles and treat them as representative of all of the materials in Mr Sullivan's groups A to M, and to test only 17 samples of fibro cement fragments and treat them as representative of all such fragments that Mr Sullivan observed in 84 of the piles.
Mr Sullivan disputed the importance of photographs of the piles, noting that the waste transportation and disposal provisions of the POEO Act do not require photographic evidence supporting the classification of the waste. Dr Halim maintained that photographic evidence was important, having regard to Mr Sullivan's reliance on his visual observations in order to group the piles into his categories A to M. Ultimately, it seemed to me that Dr Halim's complaint about the absence of extensive photographs was driven by a desire to be able to see photographic evidence of the piles in circumstances where she had not had the opportunity to physically inspect the piles before they were removed from the Land. That desire is understandable, but it does not cause me to doubt the accuracy of Mr Sullivan's observations of the dominant soil type in each pile that he recorded in his field notes at the time of his inspection and in his waste classification table which is reproduced at Annexure B to these reasons. There was no challenge to Mr Sullivan's expertise or independence as an expert witness in these proceedings, save for the submission that I have rejected at [121]-[122] above, and it was not put to Mr Sullivan in cross-examination that he had erred in characterising the soil types in the piles. Nor does it cause me to doubt the accuracy of Mr Sullivan's record of the extent to which he observed fibro cement fragments in the piles during his visual inspection, which was conducted with the benefit of his 23 years' experience.
Mr Sullivan's 11 February 2021 report stated that he had inspected the inner surface of each pile at up to three locations. Dr Halim's report dated 14 May 2021 suggested that at least three samples were required by NEPM B2 for stockpiles of less than 75m3. Mr Sullivan emphasised that NEPM B2 sets out a recommended number and not a required number of samples for stockpiles less than 75m3. Mr Sullivan gave evidence that the piles on the Land varied size from 0.8m3 to 42.1m3. He accepted that he had not taken the recommended number of samples for each and every one of the 209 stockpiles, but gave evidence that he had applied his experience in designing a sampling program that he considered to be appropriate in the circumstances, having regard to the guidance in NEPM B2, his knowledge of the site, and commercial and financial constraints. Dr Halim opined that, in circumstances where the material was allegedly dumped on the Land by different persons from different locations, the similar appearance of that material did not warrant an assumption that the material would have the same chemical and contaminant composition. In the joint report prepared with Dr Halim, Mr Sullivan acknowledged that he had undertaken his waste classification process on the assumption that the material had not been sourced from multiple sites and that this assumption had informed his approach to sampling. Mr Sullivan agreed that, if he had known that the material in the piles had emanated from multiple sites, it would have been preferable to increase the sampling density. Contrary to the defendants' submissions, this concession does not undermine Mr Sullivan's unchallenged evidence of the dominant soil type that he observed in each of the 209 piles. Nor does it undermine his evidence referred to below concerning the extent to which he observed fibro cement fragments in the piles.
Mr Sullivan and Dr Halim disagreed about whether it was appropriate to conclude (as Mr Sullivan had) that approximately 90 per cent of the total number of piles observed to contain fibro cement fragments should be classified as asbestos waste on the basis that 15 of the 17 fibro cement fragments tested by Mr Sullivan (88 per cent of fragments tested) were found to contain asbestos. Dr Halim maintained that the testing data for 17 samples could not be extrapolated in that manner given that the material in the piles had originated from different sources, and fibro cement does not always contain asbestos.
Thus, Dr Halim's contention is that increased sampling density (which Mr Sullivan accepts would have been preferable based on what he now knows about the origin of the piles) and testing of a greater number of fibro cement fragments might have resulted in a lesser volume of soil in the piles being classified as asbestos waste.
As a matter of logic, increased sampling density might have detected additional fibro cement fragments, but would not have reduced the number of such fragments detected in the piles during Mr Sullivan's inspection.
It is obvious that, with or without taking a greater number of soil samples from each pile for testing, it would have been possible to test a greater number of the observed fibro cement fragments for asbestos. However, Mr Sullivan gave evidence that his approach was consistent with the guidance in NEPM B2 concerning representative sampling of materials suspected of containing asbestos, noting that NEPM B2 states that the number analysed should take into account the variation in appearance and form of such samples. Mr Sullivan also refers to the alternative approach to representative sampling referred to in NEPM B2, being to assume that all suspect material contains asbestos. Dr Halim did not give any evidence that responded directly to Mr Sullivan's characterisation of his approach as appropriately conservative and consistent with the guidance in NEPM B2, and it was not put to Mr Sullivan in cross-examination that his approach was not appropriately conservative. I accept Mr Sullivan's evidence.
In now turn to the second theme referred to at [120] above.
Dr Halim was asked to address in her 14 May 2021 report whether it was "reasonable to find that many of the contaminants found in the report could have come from materials located within the Site itself". Dr Halim did not answer that question, but presented information derived from her review of photographs of the Land taken at various times and her comparison of the asbestos and the types and concentrations of other contaminants recorded by Mr Sullivan in the piles with those identified on other areas of the Land in soil sampled and test pits constructed by environmental consultants Senversa in a report dated 18 October 2018. The manner in which Dr Halim presented that information in her report obfuscated the issue, although I do not suggest that this was her intention. It was not until the joint report was furnished that it became clear that Dr Halim's opinion was that she was "unable to preclude" that the source of the asbestos and other contaminants in the piles "could be from the site". Mr Sullivan reviewed the same data and highlighted what he regarded as significant differences between the concentrations of copper, mercury, total recoverable hydrocarbons, lead, benzo(a)pyrene and polycyclic aromatic hydrocarbons detected in the 209 piles compared with those identified by Senversa on other areas of the Land. Whilst Mr Sullivan did not consider that these differences necessarily precluded the possibility that the material in the piles had been excavated from the Land, he opined that the prevalence of fibro cement fragments that he observed in the piles (with fragments being observed in 84 of the 209 piles) did not correspond with the infrequent and random findings of asbestos or fibro cement fragments documented in previous environmental reports. In particular, Senversa had reported only one fibro cement fragment in 13 test pits that it had constructed on the Land. In Mr Sullivan's opinion, these contrasts in asbestos fibro cement fragment findings indicated that the material in the piles had not been excavated from the Land. Dr Halim considered that the asbestos testing recorded in the previous environmental reports was not sufficiently extensive to support Mr Sullivan's opinion, and maintained that she could not preclude the possibility that the material in the piles had been excavated from the Land.
In cross-examination, Dr Halim agreed that the bedrock formation of the Land is sandstone and that a very great number of the 209 piles had been assessed by Mr Sullivan as containing shale. Dr Halim emphasised that she had not seen photographic evidence of the piles to verify for herself that they contained shale, but agreed that any piles containing shale could not have been generated by excavating the Land. Dr Halim maintained that she "cannot preclude" that "some of the materials could have been generated from the site". Dr Halim agreed, however, that "[a]t least some of the materials would have been from offsite", including at least some of the asbestos in the piles. It was put to Dr Halim that the piles containing shale were interspersed throughout the 209 piles, and that it would be nonsense to suggest that some piles had been generated from the Land and others had been dumped from offsite. Dr Halim answered: "I have not reviewed where the locations of the shale is with respect of all the other stockpiles that are considered can be from the site, or cannot be precluded that they cannot be from the site".
A comparison of Mr Millard's annotated aerial photographs at Annexure A to these reasons with Mr Sullivan's waste classification table at Annexure B to these reasons reveals that the piles of natural shale are indeed interspersed throughout the groups of piles shown in sheets 3, 4, and 5 of Mr Millard's photographs.
Dr Halim's evidence that she "cannot preclude" that some of the piles had been excavated onsite was based on her comparison of the asbestos/fibro cement findings and chemical concentrations referred to above, underpinned by an assumption drawn from Mr Abousleiman's evidence that, when he attended the Land on 13 July 2018, he "noticed a very large hole to the right where other trucks were dumping". Dr Halim observed that "if there had been a large hole, then there would have been a need to excavate the material from the site in the first place". However, Dr Halim has never attended the Land and readily accepted that she was not in a position to express an opinion about what had happened on the Land.
For the reasons explained at [124] above, I accept Mr Sullivan's evidence of the dominant soil types that he observed in the piles through visual inspection of the outer surface of the piles and sampling of the inner surface of each pile.
I find on the balance of probabilities that the 209 piles identified by Mr Millard and Mr Sullivan originated from various locations offsite. The defendants have given evidence that they carted material from offsite onto the Land and dumped it there on 13 and 14 July 2018. As Dr Halim agreed, the large number of piles containing offsite natural shale material, which were interspersed throughout the 209 piles, could not have been excavated from the Land. The possibility that some of the 209 piles are attributable to stockpiling of material excavated onsite is not supported by any of the photographic evidence on which Mr Demian was cross-examined [16] and has a distinct air of unreality to it when one considers the locations of the piles containing the natural shale material throughout the groups of piles shown in Dr Millard's sheets 3, 4 and 5 of Annexure A to these reasons. Dr Halim appears to have focussed on a comparison of chemical concentrations, without considering the available evidence concerning the soil types and the location of piles containing different soil types. I reject the defendants' submissions, which adopted the same flawed approach of ignoring the evidence about existence of the natural shale material throughout the 209 piles and its significance to the question whether the 209 piles might have contained material that had been excavated onsite.
The evidence of Dr Halim and Mr Sullivan in relation to the third theme - possible alternative approaches to remediation - is addressed at [146]-[150] below.
Under cross-examination by counsel for the eighth defendant, Mr Grieve identified approximately 20 piles on different parts of the Land that had not been classified as asbestos waste and which could have been removed from the Land by skilled operators without becoming contaminated with asbestos from other piles. Mr Grieve maintained that it was otherwise impractical to try to separate the piles out because those containing asbestos were interspersed throughout the site together with the piles that had not been classified as asbestos waste.
Mr Grieve's estimate of $919,117 included the cost of equipment, earthworks, supervision of the removal by a licensed asbestos removalist, tip fees and environmental testing after removal. The estimated tip fees of $508,800 accounted for more than half of the total estimated removal costs. In cross-examination, Mr Grieve said that it was about twice as costly to dispose of asbestos waste than to dispose of waste that did not contain asbestos.
The only aspect of Mr Grieve's evidence that was challenged in cross-examination was his allowance for all of the material to be removed and disposed of as asbestos waste. As referred to at [156] below, the contractor that ultimately removed and disposed of the 209 piles charged a lesser fee for the removal and disposal of excavated natural material than for waste containing asbestos. I therefore infer that the contractor did in fact separate asbestos waste from other material when removing and disposing of the piles.
Mr Demian gave evidence that he made arrangements in about February 2019 on behalf of Rove for Linx to organise the removal and disposal of the piles from the Land. Mr Demian gave evidence that this work was undertaken between about late February 2019 and early July 2019 by subcontractors engaged and paid by Linx, and that Linx then charged those costs to Rove together with a fee for Linx's supervision of the removal.
On 19 July 2019, Integrated Environmental Pty Ltd issued a "Stockpile Removal and Asbestos Clearance Report" to Linx signed by a licensed asbestos assessor. The report stated that, based on a visual inspection of the Land, the piles had been removed and there were no visible signs of asbestos residue.
In her report dated 14 May 2021, Dr Halim identified other remedial options that "could have been considered in the remediation of the stockpiles", including placing contaminated fill beneath a capping layer and removing asbestos fragments through an "emu picking" process and reusing the remaining material onsite. Dr Halim estimated that the cost of the capping layer alternative would be in the range of $124,000 to $200,000 plus ongoing management to ensure that the integrity of the cap was maintained. Dr Halim did not estimate the costs of that ongoing management. Dr Halim estimated that the cost of the "emu picking" alternative would be in the range of $72,000 to $143,000.
The defendants did not plead that Rove failed to take reasonable steps to mitigate any loss that it had suffered as a result of the alleged trespasses, and I accept the submission made by senior counsel for Rove that these aspects of Dr Halim's evidence are not relevant to the issues to be determined in these proceeding. It is therefore not necessary to address the evidence or Mr Sullivan's response to it in any detail, but I make the following brief observations in case a different view about the relevance of the evidence is taken in any subsequent appeal.
First, Dr Halim agreed in cross-examination that the determination of a remediation strategy must take into account whether the appropriate regulatory authority would accept a particular strategy. The EPA's letter dated 17 September 2018 made it clear that any voluntary clean up would require removal of all of the waste. There is no evidence indicating that the EPA would have accepted, or would have been likely to have accepted, any of the alternative approaches to remediation referred to in Dr Halim's report. That is a further reason why I do not regard Dr Halim's evidence as relevant.
Second, Dr Halim and Mr Sullivan agreed in their joint report that the ongoing maintenance costs that would be associated with a cap are difficult quantify (and neither of them attempted to quantify it). Thus, the evidence does not support a finding on the balance of probabilities that capping would have been a less costly remediation strategy, even assuming that it would have been acceptable to the EPA. Moreover, in circumstances where Rove was in the process of selling the Land and the ongoing maintenance costs would therefore have fallen on the purchaser, I do not consider that Rove's conduct in removing and disposing of the waste could be characterised as an unreasonable approach to dealing with the piles of material dumped on its land. The terms on which Airtrunk Pty Ltd acquired an option to purchase the Land included an obligation for Rove to remove the material at its own cost. [17]
Third, Dr Halim agreed in cross-examination that the cost of an "emu picking" strategy would depend on how many rounds of treatment (or picking) the soil required before it was validated as being below the criteria for the relevant land use. The question whether "emu picking" would have ultimately been a less costly remediation strategy is therefore a matter of speculation. Moreover, there is no evidence that would support a finding that a successful "emu picking" exercise would have been a sufficient remediation strategy in the circumstances of this case. The question is whether the remaining material could have lawfully been left on the Land, or whether that would have constituted a scheduled activity by reason of clause 39 and/or clause 42 of Schedule 1 to the POEO Act requiring either a licence or an exemption. Dr Halim and Mr Sullivan did not purport to express any opinion about this issue, which was not addressed in the defendants' submissions.
Subject to one matter raised on behalf of Mr George Abousleiman concerning the supervision fee charged by Linx, the defendants did not dispute the amount of the costs actually incurred by Rove. The issue concerning the Linx supervision fee is addressed at [278] below.
In his affidavit, Mr Tsompanidis deposed that he had a conversation with the caller to the following effect:
"Builder: Do you have any clean loads?
Chris: Yep. Where's the site? and how much do you charge?
Builder: We're at Lane Cove. $50.00 per load.
Chris: OK, text me your address and let me organise the boys to come around."
Mr Tsompanidis received a text message from the caller at 7:41am on 12 July 2018, which read:
"Sirius road lane cove west channel 26 thanks"
Mr Tsompanidis gave evidence that channel 26 was the radio frequency that all the trucks and operators of the site were using to communicate with one another about where material should be dumped.
At the time that Mr Tsompanidis received this call, Chomp was undertaking excavation work as part of a job that it had been doing in stages since November 2017 at 25-27 Myrtle Street, North Sydney. The stage of work that Chomp was carrying out in July 2018 was the subject of a work approval form that had been signed by Chomp's client on 10 April 2018. That form described the work as "hand demolition and earthworks" for an agreed fixed price and "rubbish removal" to be paid for in accordance with a schedule of rates.
Mr Tsompanidis gave evidence that he obtained a copy of the geotechnical report for the North Sydney site before Chomp commenced work. Chomp tendered a geotechnical investigation report prepared by Argus Pty Ltd and dated 30 January 2017. That report described the outcome of an investigation, the purpose of which was described as being to assess the ground conditions and feasibility, from a geotechnical perspective, of the site for a proposed car stacker development. As I understand the evidence given by Mr Tsompanidis in cross-examination, the car stacker involved the construction of a basement in an existing building on the Myrtle Street site. In addition to the excavation work for the basement, Chomp was involved in stripping the interior of the existing building.
The geotechnical report included a geological profile of the subsurface conditions investigated using two boreholes. Whilst the report described the types of soil and clay in the fill and residual soil layers, it provided no information about whether those soils or clay contained, or were likely to contain, contaminants. The scope of work described in the report did not include any testing of the soil or clay for contaminants, and the report did not address the question whether the Myrtle Street site or the area in which it is located was, or was likely to be, contaminated by manufactured chemicals or process residues as a result of historical industrial, commercial, or other activities. Excavated natural material, including soil and clay, does not comply with the definition of VENM in the POEO Act unless it has been excavated from areas that are not contaminated with such chemicals or process residues, and does not contain sulfidic ores or soils. As Mr Tsompanidis agreed in cross-examination, the mere fact that material is excavated out of the ground does not mean that it will be VENM.
Mr Tsompanidis gave evidence that, at the time he received the telephone call on 11 or 12 July 2018, Chomp had been disposing of VENM excavated from the Myrtle Street site at a waste facility in Kurnell operated by Besmaw Pty Ltd (trading as Holt Estate). According to Mr Tsompanidis, Holt Estate representatives had inspected the Myrtle Street site on 11 or 12 June 2018, after which Holt Estate had an entered into a contract with Chomp on 13 June 2018 permitting Chomp to deliver uncontaminated VENM from that site to the Kurnell facility for payment of a fee of $19.80 per tonne to Holt Estate. The terms of the contract reserved to Holt Estate the right to inspect and test all VENM prior to its delivery to the Kurnell facility. The terms also included an indemnity by Chomp in favour of Holt Estate in respect of any loss, damages, cost or expense resulting from the delivery of non-VENM from the Myrtle Street site to the Kurnell facility.
Mr Tsompanidis gave evidence that, after receiving the telephone call on 11 or 12 July 2018, he decided to dispose of VENM from the Myrtle Street site at the Lane Cove site because this would be more convenient than making the longer trip from North Sydney to Kurnell. Mr Tsompanidis gave evidence that, shortly after receiving the text message with the Lane Cove address, he telephoned either Mr Ermalos Psomos or Mr Ioannis Tsirgiannis (both of whom were drivers employed by Chomp) and told him that they would take some VENM loads from the Myrtle Street site to the Lane Cove address for a fee of $50 per load. However, the driver told Mr Tsompanidis later that afternoon that he had been turned away from the Lane Cove site by "a guy who told me it was full and not to come back". Mr Tsompanidis then exchanged further text messages with the caller he had spoken to earlier that morning, who indicated that trucks could deliver to the Lane Cove site until 6:00pm that day, or on the following day.
Mr Tsompanidis gave evidence that he directed three of Chomp's trucks to deliver VENM from the Myrtle Street site to the Lane Cove site on 13 and 14 July 2018. He personally drove Chomp trucks to the site on two occasions and either Mr Psomos or Mr Tsirgiannis drove on a third occasion on 13 July 2018. Mr Tsompanidis personally drove to the site on one occasion and either Mr Psomos or Mr Tsirgiannis drove on a second occasion on 14 July 2018. Mr Tsirgiannis gave evidence that he drove a Chomp truck to the Lane Cove site on two occasions on either 13 or 14 July 2018. Reading Mr Tsirgiannis' evidence together with Mr Tsompanidis' evidence, it is likely that Mr Tsirgiannis dumped material on the Land once on 13 July and once on 14 July 2018.
Chomp trucks drove through the Sirius Road entrance gates to the Land at 7:36am, 7:45am, and 9:26am on 13 July 2018.
The CCTV film shows that the Chomp truck that arrived at 7:.36am was carrying a trailer. The gates were open, but the Chomp truck had to wait on Sirius Road, a short distance back from the gates and directly opposite the large "Expressions of Interest - Large Land Holding" sign, to allow another truck to exit. No other signs are visible on or near the gates. The gatekeeper stands next to the Chomp driver's cab and speaks with the driver while the Chomp truck is waiting. The gatekeeper directs the Chomp truck to drive down the access road into the Land immediately after the other truck has exited the gates.
The Chomp truck that arrived at 7:45am was not carrying a trailer and is seen on the CCTV film stopping between the open gates, where the gatekeeper can be seen walking around and speaking with the driver in the Chomp truck, and the truck stopped behind it outside the entrance gates, from time to time. At 7:51am, the gatekeeper gestures for the Chomp truck to proceed further down the access road and the Chomp truck and other trucks behind it then begin to drive onto the Land.
The Chomp truck that arrived at 9:26am was not carrying a trailer and is seen on the CCTV film stopping briefly immediately inside the gates, where the gatekeeper appears to speak to the driver before waving the truck down the access road into the Land.
Insofar as the affidavit sworn by Mr Tsompanidis on 19 April 2021 relates to 13 July 2018, it is broadly consistent with the CCTV film from 13 July 2018. Mr Tsompanidis gave evidence that the gatekeeper was standing at the gates on each occasion and directed him where to drive inside the Land. He did not see any evidence of the gates having been tampered with or damaged. Each time after he began driving into the Land, another person wearing a high visibility vest (not the gatekeeper) approached the truck and Mr Tsompanidis handed the person a $50 note and provided further directions about where to dump the material.
Mr Tsompanidis gave evidence that he saw that the Land was a large site and that there were many trucks dumping there. He observed various people directing the trucks around the site. The operation did not appear to him to be rushed and he gave evidence that he did not suspect that he was not permitted to dump on the site. Mr Tsirgiannis gave evidence to similar effect.
Insofar as the affidavit sworn by Mr Tsirgiannis on 7 May 2021 relates to 13 July 2018, it is not entirely consistent with the CCTV film. Mr Tsirgiannis gave evidence that he paid $50 to the person at the gates before driving onto the Land. The CCTV film does not show the driver of any of the Chomp trucks handing anything to the gatekeeper before proceeding through the gates and down the access road.
Mr Tsirgiannis also deposed in his affidavit, and maintained in cross-examination, that the gatekeeper asked him what he was carrying and he answered, "VENM". That evidence cannot be tested against the CCTV film for 13 July 2018, which does not include any audio recording. However, the demonstrated inaccuracy of Mr Tsirgiannis' evidence about having paid cash to the gatekeeper on 13 July 2018 casts doubt on the reliability of his evidence that he told the gatekeeper he was carrying VENM.
Chomp trucks drove through the Sirius Road entrance gates to the Land at 8:25am and 9:05am on 14 July 2018.
The Chomp trucks that arrived at 8:25am and 9:05 am were not carrying trailers and are seen on the CCTV film driving straight through the open gates on both occasions. The gatekeeper was not waiting at the gates.
The evidence given by Mr Tsompanidis and Mr Tsirgiannis in their affidavits included evidence to the effect that the gatekeeper was waiting at the gates when they arrived on 14 July 2018 and directed them to drive into the Land. Mr Tsirgiannis also gave evidence that he told the gatekeeper that he was carrying VENM and paid the gatekeeper $50 before driving through the gates. These aspects of the evidence of Mr Tsompanidis and Mr Tsirgiannis cannot be accepted in light of the CCTV evidence, which clearly shows that nobody was waiting at the open gates when the Chomp trucks arrived on both occasions on 14 July 2018.
Mr Tsompanidis gave evidence in cross-examination that the capacity of each truck and each trailer was about 6m3 and that this equated to between 10 and 11 tonnes of material depending on the nature of the material. I note that this is consistent with Mr Sullivan's evidence in his report dated 8 July 2021 that an 11 tonne truck would have the capacity to hold approximately 6m3 of soil, on the basis of a density of approximately 1.8 tonnes per m3 of soil. This aspect of Mr Sullivan's evidence was not the subject of any disagreement in the subsequent joint expert report of Dr Halim and Mr Sullivan and was not challenged when Mr Sullivan was cross-examined. Mr Tsirgiannis also gave evidence that the capacity of the truck that he was driving was about 6m3 or 7m3. Mr Tsompanidis was unable to recall in cross-examination precisely where he dumped the loads that he was carrying in the Chomp trucks that he drove onto the Land on the two occasions on 13 July 2018 and one occasion on 14 July 2018.
Mr Tsompanidis gave evidence in cross-examination that he was familiar with the environmental requirements relating to the transport and disposal of waste, that he was aware that illegal dumping is a plague on the construction industry, and that clandestine tipping operations burden owners with dumped waste and fill. He was also aware that waste facilities have stringent requirements for the acceptance and management of waste. He confirmed that the practice at the Holt Estate waste facility at Kurnell was for Holt Estate personnel working inside the facility to immediately notify the facility's weighbridge of any dumped material that appeared not to be VENM and to re-load that material into the truck that had dumped it. Mr Tsirgiannis also gave evidence describing those procedures at the Kurnell facility, but emphasised that he had never been required to re-load his truck.
Mr Tsompanidis knew that the Land was not a waste facility, but said in cross-examination that he understood it to be a construction site. Mr Tsompanidis acknowledged in cross-examination that, even though he did not know the person who called him on 11 or 12 July 2018 and had made no record of the person's name, he took no other steps to ascertain whether Chomp could legitimately dump its material on the Land before doing so. He sought to explain this by saying that many construction sites need fill. However, he agreed that a construction site invariably has signage and security around it to indicate that it is a construction site and is required to display the builder's name outside the site. He did not see any such signage when he went to the Land on 13 and 14 July 2018 and gave evidence that he did not recall seeing the large "Expressions of Interest" sign that had been erected outside the gates. Mr Tsompanidis repeated several times in cross-examination that the site looked to him like "a legitimate construction site" because there was heavy equipment and people with two-way radios who were wearing high visibility vests and who "weren't fidgety or seemed abnormal to any other job site that needed fill".
Mr Tsirgiannis denied seeing the "Expressions of Interest" sign outside the Sirius Road entrance gates but said that, even if he had seen it would not have caused him to question whether he could lawfully tip the material in his truck on the Land. Mr Tsirgiannis also said that he didn't know whether there was no signage indicating that a contractor was engaged onsite. He was simply taking the material to be dumped at the place where Mr Tsompanidis had told him to do so. Mr Tsirgiannis did not see any building works being carried out on the Land.
Mr Tsompanidis agreed in cross-examination that he did not provide any documentation to the gatekeeper or anyone else on the Land to show that what he was dumping was VENM. Mr Tsompanidis said that there was one man the gate and two men ith radios in the main area where people were tipping and "so there was people there seeing what trucks were dumping". The gatekeeper's actions recorded on the CCTV film on the three occasions when Chomp drove onto the Land on 13 July 2018 do not include any inspection of the material carried in Chomp's trucks. As I have already mentioned, the gatekeeper was not present at the gates at all when the Chomp trucks drove onto the Land on 14 July 2018. Mr Tsirgiannis' evidence that he told the gatekeeper that he was carrying VENM on 13 and 14 July 2018 is unreliable, for the reasons I have already explained. The actions of any other persons stationed where material was ultimately dumped on the Land are not visible on the CCTV film.
It was put to Mr Tsompanidis in cross-examination that there was no basis for him to believe that the material that he took and directed to the Land from the Myrtle Street site was VENM. Mr Tsompanidis answered that Holt Estate had "validated" that all of the material from the Myrtle Street site was VENM. Mr Tsirgiannis also claimed that Holt Estate had determined that all material excavated from the Myrtle Street site was VENM. At one point during his cross-examination, Mr Tsirgiannis said that he knew the material that he carried in the Chomp truck was VENM because he had excavated it from the Myrtle Street site himself. However, when pressed about how he could tell the difference between VENM and ENM, Mr Tsirgiannis reverted to relying on Holt Estate's approval for excavated material to be taken to the Kurnell facility. The claims made by Mr Tsompanidis and Mr Tsirgiannia that Holt Estate had positively determined that all material excavated from the Myrtle Street site would by VENM are not credible. They are inconsistent with the contract referred to at [170] above, which expressly contemplated that some excavated material may be found not to be VENM and gave Holt Estate the right to turn away such material.
Mr Tsompanidis also gave evidence in cross-examination that the cost incurred by Chomp in disposing of VENM at Holt Estate's Kurnell facility was claimed by Chomp as a tax deduction. Chomp maintained invoices and receipts relating to disposal costs for that purpose. However, Chomp drivers would sometimes pay cash to dump VENM at a "DA approved site" because "the people on-site want cash because they're afraid that people aren't going to pay once they tip a certain amount of loads". When Mr Tsompanidis directed his driver to take loads to the Land on 13 July 2018, he told him to pay $50 in cash for each load. Chomp kept no records of the payments it made to dump material on the Land. Mr Tsompanidis agreed that he had not instructed the driver to get a receipt for the $50 payments and sought to explain this by saying: "I wasn't expecting the person to vanish, and I couldn't follow up on billing that".
As I have already stated at [163] above, there is no evidence that the person "vanished". On the contrary, Mr Tsompanidis continued to pursue him by text messages sent between 15 and 23 July 2018 asking whether more loads would be accepted, without ever taking any steps to identify the person he was dealing with or to check his authority to permit Chomp to dump material on the Land. Contrary to Mr Tsompanidis' evidence in cross-examination, he could have followed up invoicing or receipts for the loads dumped by Chomp on 13 and 14 July 2018 in any of his messages sent between 15 and 23 July 2018, if he had ever intended to do so. Mr Tsompanidis' messages make no mention of invoicing or receipts. Mr Tsompanidis' evidence that he intended to follow up on tax invoices for the cash payouts is not credible.
On the basis of the evidence of Mr Tsompanidis and Mr Tsirgiannis summarised above, together with the CCTV film, I find that Chomp intentionally entered the Land and dumped on the Land material that had been excavated from the Myrtle Street site on three occasions on 13 July 2018 and on two occasions on 14 July 2018. I further find that, on the first of those occasions at 7:36am on 13 July 2018, the volume of material carried in Chomp's truck and trailer and dumped on the Land was approximately 12m3. On each of the four subsequent occasions, the volume of material carried by Chomp's truck was approximately 6m3. The total volume of material dumped on the Land by Chomp on 13 and 14 July 2018 was approximately 36m3, being approximately 2.5 per cent of the 1,427.3m3 of material that Rove discovered on the Land on 16 July 2018 and subsequently removed from the Land.
Chomp's conduct in entering and dumping material on the Land on those five occasions on 13 and 14 July 2018 constituted trespass, unless Chomp succeeds in establishing one of its pleaded defences of consent or implied licence referred to at [161] above: Plenty v Dillon (1991) 171 CLR 635 at 639 (Mason CJ, Brennan and Toohey JJ) and 647 (Gaudron and McHugh JJ); Kuru v state of New South Wales (2008) 236 CLR 1 at [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177 at [246] (Edelman J); Roy v O'Neill (2020) 171 CLR 291 at [11] (Kiefel CJ) and [66] (Keane and Edelman JJ).
Chomp's closing submissions made no mention of its pleaded defence that the unidentified person who telephoned Mr Tsompanidis on 11 or 12 July 2018 expressly consented, with the actual or ostensible authority of Rove, to Chomp entering the Land for the purpose of dumping VENM on the Land. To the extent that this pleaded defence was pressed, I reject it. The evidence does not establish that the unidentified caller was an officer of Rove, or that they had actual authority from Rove to consent to Chomp entering the Land for that purpose (or, indeed, for any purpose). On Mr Tsompanidis' evidence, the caller did not even claim to be calling from or on behalf of Rove. Mr Demian gave evidence that he had no knowledge of the mobile telephone number from which the unidentified caller contacted Mr Tsompanidis. That aspect of Mr Demian's evidence was not challenged in cross-examination. As Mr Tsompanidis acknowledged in cross-examination, the caller "could have been anyone". The evidence provides no support for the pleaded contention that the unidentified caller was communicating with Mr Tsompanidis with the apparent or ostensible authority of Rove. There is no evidence that Rove had done anything to hold out the unidentified caller as having general authority to grant access to the Land, or authority to grant access to persons intending to dump "clean loads" on the Land. There is no evidence that Rove had granted any kind of permission or authority to the unidentified caller and then failed to take proper safeguards against the caller inviting third persons to dump material on the Land. To put it another way, Rove made no representation of authority from which it is now estopped from departing. Even if the unidentified caller had falsely claimed to have such authority from Rove (which he did not claim), this would not be sufficient to constitute apparent or ostensible authority: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; (2004) 78 ALJR 1045; (2004) 208 ALR 213; [2004] HCA 35 (Pacific Carriers) at [36]-[38] (per curiam).
As referred to at [161] above, Chomp pleaded and submitted [19] that it entered and dumped the material on the Land on 13 and 14 July 2018 strictly in accordance with the consent of the gatekeeper, who was "apparently in lawful possession" of the Land at the time, and who was ostensibly authorised by Rove to grant Chomp a licence to dump VENM on the Land. Chomp submitted that Rove "must be found effectively (albeit indirectly) to have consented to" Chomp's entries onto the Land and its dumping of material on the Land on 13 and 14 July 2018.
I reject those submissions.
The gatekeeper had no right to possession of the Land and Chomp did not submit that the gatekeeper had Rove's actual authority to permit Chomp to enter and dump of material on the Land. Mr Demian's unchallenged evidence is that he did not know the gatekeeper. [20] As I mention below, Chomp accepted Mr Demian's evidence that he had kept control of the key to the Sirius Road entrance gates and had not consented to the key being used for facilitate any material being dumped on the Land. There is no basis for Chomp's submission that the gatekeeper "must have been known to the Plaintiff, as a person having custody, possession and control of its Property, including the front gates". It will be recalled that the Land was fenced and locked. Employees of Rove or Linx inspected the Land on a monthly to fortnightly basis. There is no evidence that Rove's employees or contractors were inspecting or monitoring the Land on a daily basis, which would have alerted Rove to both the gatekeeper's presence and the defendants' activities on 13 and 14 July 2018.
When the gatekeeper took physical possession and control of the Land by controlling access to the Sirius Road entrance gates with the pin-code padlock, allowing the defendants and other parties to enter and dump material on the Land and directing the movement of their trucks on the Land, he did so without Rove's authority. Rove retained its right to exclusive possession of the Land at all times. Its servants or agents physically re-entered the Land on 16 July 2018, where the dumped material was discovered. Rove is entitled to sue Chomp and the other defendants in trespass for their conduct that interfered with Rove's right of possession. It is no answer for the defendants to say that they entered and dumped their material on the Land with the permission of the gatekeeper, who had taken physical possession and control of the Land as a trespasser: Smethurst at [120] (Gageler J); [21] M A Jones et al. (eds), Clerk & Lindsell on Torts (23rd ed, 2020, Thomson Reuters, 23rd ed, 2020) paragraphs [18-28]-[18-29].
Chomp's submission [22] that the gatekeeper was ostensibly authorised by Rove to permit Chomp to dump VENM on the Land had several elements. Chomp accepted Mr Demian's evidence that he (as the sole director of Rove) had not consented to Chomp's actions, that he had kept control of the key to the Sirius Road entrance gates, and that he had not consented to the key being used for facilitate any material being dumped on the Land. [23] However, it was submitted that the CCTV film showed the gatekeeper opening the gates with a key and that it must follow that Rove had "somehow" caused, permitted or enabled the gatekeeper to have the key and thereby to control the grant of access to the Land. This was described as the "critical element" of the ostensible authority submission. I reject it. Mr Jones' evidence referred to at [98]-[99] above establishes that he unlocked the gates on 14 July 2018 using a code that the gatekeeper, Mr Abi Marlu, sent him by text message. No key was required to open the gates on that occasion. The CCTV film for 13 July 2018 shows the gatekeeper opening the gates using only one hand, which strongly suggests that he used a code rather than a key on that occasion as well as on the following morning. It would be very difficult to insert a key into a padlock with one hand without using the other hand to hold the padlock steady. There is no evidence about how Rove's padlock came to be removed from the entrance gates and replaced with the coded padlock used by Mr Abi Marlu to open the gates to the Land on 13 and 14 July 2018. I reject the submission made by Chomp and other defendants that the Court should infer that the gatekeeper had the key and that Rove had caused, permitted, or enabled that key to come into his possession. As Kitto J said in Jones v Dunkel (1959) 101 CLR 298; (1959) 32 ALJR 395; [1959] ALR 367; (1959) 76 WN (NSW) 278; [1959] HCA 8 (Jones v Dunkel), at 101 CLR 305, "[o]ne does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the case under consideration, for thinking it likely that in that actual case a specific event happened". [24] It is the defendants who bear the onus of establishing the elements of their defences that rely on ostensible authority. [25] Mr Abi Marlu could have given evidence about whether he had a key and, if so, how it had come into his possession. The defendants chose not to call him to give evidence by abandoning their application for a bench warrant for his arrest to enforce compliance with the subpoena issued to him. I infer that Mr Abi Marlu's evidence would not have assisted the defendants: Jones v Dunkel, supra. For those reasons, the evidence does not support a finding that Mr Abi Marlu was in possession of Rove's key to the locked entrance gates. Even if the evidence had supported a finding that Mr Abi Marlu had Rove's key, it would not have supported a finding that Rove had caused, permitted, or enabled the key to be provided to Mr Abi Marlu. Indeed, Mr Demian's evidence - which was embraced by Chomp - is to the contrary.
Chomp relied on the presence of the gatekeeper on the Land, his high visibility vest, the tipping fee that he was collecting, the fact that he was directing traffic and using a two-way radio to communicate, and the fact that the concrete barriers had been removed, as "observable facts" that Rove had caused, permitted, or enabled his activities. It was submitted that those "observable facts" presented to outsiders "a complex of appearances as to authority to grant access to property for the particular purpose of dumping waste material", citing Pacific Carriers at [36]. There is no evidence that any of these "observable facts" were caused or permitted by, or otherwise attributable to, any conduct of Rove. It was submitted that Rove failed to "take proper safeguards" to prevent the unauthorised dumping of material on the Land after "equipping the gatekeeper with a key". As I have already explained, the evidence does not support the contention that the gatekeeper had a key at all, much less that Rove provided him with, or caused or permitted him to be provided with, a key. I therefore reject the submission that, by reason of the "observable facts", Rove conferred ostensible authority on the gatekeeper to grant access to the Land for "the particular purpose of dumping waste material", including VENM. Where a representation of authority is relied upon as conferring ostensible authority on an officer or agent of a company, the company's conduct must be the source of the representation. It is not enough that the representation should come from the person who is said to have been acting with the company's ostensible authority: Pacific Carriers at [36].
At times, the submissions made on behalf of Chomp and some of the other defendants appeared to suggest that it would be sufficient for their defences if they reasonably believed that the gatekeeper had authority to permit them to enter the Land. I reject that suggestion. It is actual permission to enter the plaintiff's land, whether express or implied, that will save an intentional or negligent entry from constituting trespass. Reasonable but erroneous belief that the entry is authorised does not suffice. [26] In any event, the CCTV for 14 July 2018 shows that Chomp's trucks drove onto the Land on that day without any permission from the gatekeeper, as referred to at [183] above.
To the extent that Chomp's implied licence defence referred to at [161] above relied on the implication of a licence in fact from the "observable facts" referred to at [200] above, I reject that defence for the reasons there explained.
To the extent that Chomp's implied licence defence relies on an implication in law, the applicable principles were articulated by Keane and Edelman JJ in Roy v O'Neill at [67] (references omitted):
"An implication in law is based upon background facts and conventions rather than reasons of desired public policy. It is akin to a presumption and it is based upon 'an incident of living in society', 'the reasonable requirements of society', 'the habits of the country', or 'background social norms'. A licence will only be implied as a matter of law if there is nothing 'in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated'."
The most common incident of a licence implied in law is a licence to enter the unlocked path, driveway, or other means of access leading to the entry of a suburban dwelling house for the purpose of lawful communication with, or delivery to, any person in that house: Roy v O'Neill at [68]-[69] and the authorities there referred to.
I accept the submission made on behalf of Chomp and other defendants that the circumstances in which a licence will be implied in law (absent objective facts negating a licence) are not limited to established categories of circumstances. However, the defendants' submissions did not identify any conventions or requirements of society that would warrant the implication of a licence in law for them to enter and dump waste on the Land without the express consent of the owner of lawful occupier of the Land, particularly in circumstances where neither the person transporting the material nor the owner or occupier have made enquiries capable of establishing that the material can lawfully be received on the Land. The dumping of the material on the Land was not permitted by any development consent. It was submitted on behalf of Mr George Abousleiman that development consent was not required by reason of Division 15 of Part 2 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 if the fill imported to the Land contained only VENM. For the reasons explained at [208], [218], [229], and [248] below, the evidence does not establish that the material dumped on the Land by any of the defendants to these proceedings was VENM, with the exception of Mr Daniel Gawidziel. Irrespective of whether the material dumped by the defendants comprised VENM or other material, it was "waste" as defined in the POEO Act. [27] Whether the waste could lawfully be received by the Land would depend on the criteria in clauses 39 and 42 of Part 1 of Schedule 1 to the POEO Act referred to at [44]-[47] above. There is no evidence that any of the defendants made any enquiries about matters relevant to those criteria.
The submissions made on behalf of Chomp and other defendants appeared at times to suggest that it would be sufficient for the implication of a licence in law if they took reasonable steps to ascertain whether it was lawful for them to dump their material on the Land and believed, albeit erroneously, that it was lawful for them to do so. I reject that submission. Unlike the cases referred to by the defendants, this is not a case in which the existence of reasonable grounds for a particular belief would have enlivened a statutory authority to enter the Land or given rise to the implication of a licence in law to enter the Land to make further inquiries in the course of police business: compare, for example, Roy v O'Neill at [6]. Nor does this case involve any question about whether a reasonable person in the position of the alleged trespasser would have understood that a licence previously granted to them to be on the plaintiff's land had been revoked: compare, for example, Wilson v State of New South Wales (2010) 278 ALR 74; (2010) 207 A Crim R 499; [2010] NSWCA 333 at [51].
Had it been necessary to determine the question, I would have found that Chomp did not take reasonable steps to ascertain whether it was lawful to dump its material on the Land. Chomp was operating in an industry that Mr Tsompanidis acknowledged to be plagued by illegal dumping. [28] Chomp relied on its belief that the Land was a construction site as the basis for its claimed belief that the dumping of the material was lawful. Yet it took no steps to check whether there was any signage on the Land consistent with it being a construction site. Chomp's acceptance of the invitation from the unidentified caller on 11 or 12 July 2018, its observation of the "observable facts" referred to above on 13 and 14 July 2018, and its observation that the persons on site did not appear to be "fidgety", [29] did not amount to the taking of reasonable steps to ascertain whether it could lawfully dump its material on the Land.
A further reason why each of Chomp's pleaded defences of consent and implied licence referred to at [161] above must fail, in addition to all of the reasons explained at [193]-[207] above, is that the evidence does not establish on the balance of probabilities that the material that Chomp dumped on the Land was VENM. The geotechnical report tendered by Chomp does not establish that the excavated material was VENM for the reasons explained at [169] above. Holt Estate had inspected the Myrtle Street site before entering into a contract to accept VENM excavated from the Myrtle Street site at its Kurnell facility. However, there is no evidence of the steps involved in Holt Estate's inspection, and no basis upon which to infer that its inspection involved any soil sampling and testing. I also infer that the inspection did not satisfy Holt Estate that all material excavated from the Myrtle Street site would be VENM, because the contract was for the acceptance of VENM only and reserved to Holt Estate the right to inspect and test all material delivered by Chomp from the Myrtle Street site before accepting it into the Kurnell facility. The contract also contained an indemnity given by Chomp in favour of Holt Estate in respect of any loss, damages, cost, or expense resulting from the delivery of non-VENM to the Kurnell facility. That is to say, Chomp bore the risk that inspection and testing of the material after excavation might reveal that it was not VENM. Thus, the evidence does not establish on the balance of probabilities that Chomp's conduct in dumping the material on the Land was within the scope of the claimed express or implied licence.
For all of those reasons, Chomp trespassed on the Land when it intentionally entered onto and intentionally dumped material on the Land at about 7:36am, 7:45am, and 9:26am on 13 July 2018 and at about 8:25am and 9:05am on 14 July 2018. I have found at [192] above that the total volume of material dumped by Chomp on those five occasions was approximately 36m3, being approximately 2.5 per cent of the 1,427.3m3 of material that Rove discovered on the Land on 16 July 2018 and subsequently removed from the Land.
Chomp's remaining defences, referred to at [11]-[12] above, are addressed at [261]-[274] below.
Contrary to the submissions made on behalf of Haulbuild, the evidence does not support a finding that Mr Awick held an honest belief that the Land was "a legitimate tipping site". The evidence referred to above demonstrates that Mr Awick simply did not turn his mind to the question, although he now accepts that he should have done so.
When the EPA first contacted Mr Awick in November 2018 in relation to Haulbuild dumping material on the Land, Mr Awick obtained from Belzig Pty Ltd a copy of a geotechnical report in relation to the George Street site. The geotechnical report was dated January 2016, some two and half years before the events that are the subject of these proceedings. The report included a geological profile of the subsurface conditions investigated using four boreholes. Whilst the report described the types of soil, clay and sandstone in the topsoil, fill, residual soil and bedrock layers, it provided no information about whether those materials contained, or were likely to contain, contaminants. The scope of work described in the report did not include any testing of the soil, clay, or sandstone for contaminants, and the report did not address the question whether the George Street site or the area in which it is located was, or was likely to be, contaminated by manufactured chemicals or process residues as a result of historical industrial, commercial, or other activities. Dr Halim gave evidence in cross-examination that Marrickville is renowned for "historical fallout of lead on the atmosphere from all the heavy industry", so there would be at least "fallout from atmospheric lead onto the ground". ENM, including soil and clay, does not comply with the definition of VENM in the POEO Act unless it has been excavated from areas that are not contaminated with such chemicals or process residues and does not contain sulfidic ores or soils. Contrary to the submissions made on behalf of Haulbuild, the evidence does not support a finding on the balance of probabilities that the material excavated from the George Street site that it had transported to and dumped on the Land did not contain contaminants.
Mr De Bus gave evidence that there was no one at the Sirius Road entrance gates on each of his three trips to the Land on 14 July 2018, but he was met by a "spotter" after he drove through the gates, who asked him what he was carrying and directed him as to where to dump the material. The spotter asked him to lock the gates behind him when leaving after his third trip out, and he did so.
Mr Awick gave evidence that Haulbuild's truck and trailer, in which Mr De Bus carted excavated material from the George Street site to the Land on 14 July 2018, had a capacity of about 13 or 14m3, being 5m3 in the truck and about 8 or 9m3 in the trailer.
In cross-examination, Mr De Bus was able to describe by reference to photographs the general area of the Land in which he dumped the material but was unable to pinpoint more precisely where he had dumped each of the three loads.
On the basis of the evidence of Mr Awick and Mr De Bus summarised above, I find that Haulbuild intentionally entered the Land and dumped on the Land material that had been excavated from the George Street site on three occasions on 14 July 2018. I further find that the total volume of material that Haulbuild dumped on the Land during its three trips on 14 July 2018 was approximately 39 to 42m3. That equates to between approximately 2.7 and 2.9 per cent of the total 1,427.3m3 of material that Rove removed from the Land during its voluntary clean up in 2019.
Haulbuild's conduct constituted trespass, unless it succeeds in establishing its pleaded defence that it entered the Land and dumped the material there pursuant to the implied leave or licence of the person then in possession of the Land which permitted it to enter for purpose of depositing loads of VENM in return for a fee. [30]
Haulbuild adopted the submissions of Chomp and Mr Abousleiman in relation to that defence. I have recorded the substance of those submissions any my reasons for rejecting them at [195]-[206] above. Whilst Haulbuild relied on the unidentified "spotter" who met Mr De Bus when he arrived at the Land on each occasion, rather than the gatekeeper, as having the "apparent authority to authorise and control entry to the site", Haulbuild relied on similar matters in relation to the "spotter" as Chomp and Mr Abousleiman relied on in relation to the gatekeeper and/or implicitly treated the "spotter" as having gained access to the Land through the gatekeeper. I reject Hauldbuild's defence of implied leave or licence for the reasons explained at [195]-[206] above and for the further reason that, as explained at [218] above, the evidence does not establish on the balance of probabilities that the material that Haulbuild dumped on the Land was VENM.
For all of the reasons above, Haulbuild trespassed on the Land on each of the three occasions that it intentionally entered and dumped material on the Land on 14 July 2018.
Haulbuild also relies on the defences referred to at [11]-[12] above, which are addressed at [267]-[274] below.
Although it was not pleaded in Mr El Kadomi's defence, his solicitor submitted that he did not commit any trespass through the conduct of his employee, Mr Cimone, because Mr Cimone entered the Land "by leave and licence of the person in possession of the land". Rove did not take any pleading point about Mr El Kadomi raising this defence in closing submissions, and Mr El Kadomi's solicitor did not make any oral submissions expanding on that very brief written submission. I reject the submission for the same reasons given at [195]-[206] above for rejecting similar submissions made by Chomp, Haulbuild and Mr Abousleiman.
For those reasons, Mr El Kadomi trespassed on the Land on two occasions on 13 July 2018 when his employed driver intentionally entered the Land and dumped 12m3 of material excavated from the Marsden Park site on each occasion. The total volume of approximately 24m3 dumped by Mr El Kadomi's employed driver represents approximately 1.7 per cent of the total volume of the 1,427.3m3 that Rove removed from the Land in 2019.
Mr El Kadomi adopted Haulbuild's submissions in relation to the defences referred to at [11] and [12] above. Those issues are addressed at [261]-[274] below.
Mr Elie Abousleiman gave evidence that he had seen an advertisement on Gumtree on about 11 July 2018 for the dumping of soil at Lane Cove for $70 per load. He had telephoned the mobile number listed in the advertisement and spoken to a man named Mark, who told him: "Go to 1 Sirius Road, Lane Cove West NSW to dump the clean fill, there is a guy taking payment at the gate there are other trucks going there to dump".
Mr Elie Abousleiman gave evidence that he then spoke with his brother on 12 July 2018 and told him about the advertisement he had seen and the address of the site at Lane Cove West. Mr George Abousleiman gave evidence to the same effect and also said that his brother gave him Mark's name and the mobile telephone number from the Gumtree advertisement, which he then stored in his phone. Both gave evidence that they agreed that Mr George Abousleiman would take the material to be excavated from the Punchbowl site to the Lane Cove site the following day, 13 July 2018.
The mobile telephone number that Mr Elie Abousleiman says was listed in the Gumtree advertisement and that Mr George Abousleiman stored in his phone is the same number from which Mr Tsompanidis says the unidentified caller telephoned him on 11 or 12 July 2018. [32] As stated earlier in these reasons, Mr Demian gave evidence that he had no knowledge of that mobile telephone number. [33]
As referred to at [80] above, Mr Elie Abousleiman went to the Land on 12 July 2018. He gave evidence that he did so in order to "see if the tip was a true tip of it was a scam". He thought it was unusual for there to be a dumping site at Lane Cove West and he knew that people sometimes put "scam" advertisements for tipping sites that could not in fact receive material because they did not have the necessary development consent.
I reject Mr Elie Abousleiman's evidence that he went to the Land on 12 July 2018 in order to check whether it was "a true tip". That aspect of his evidence is irreconcilable with his evidence given earlier in cross-examination to the effect that he understood that material could only be dumped at sites that were not waste facilities if the site had a development consent permitting it to receive the material, and that he always made sure before dumping material on any land that the relevant development consent was in place. He gave evidence that he would ask the person whether they had a development consent and ask to see a letter or email confirming this. He did not claim to rely on his visual inspection of a site in order to determine whether material could lawfully be dumped there. However, he did not claim to have asked any questions or to have been shown any documents about a development consent when he went to the Land on 12 July 2018. Instead, Mr Elie Abousleiman claimed in cross-examination to have asked "Mark" when he spoke to him: "Is it a DA approved site, is it a legitimate tip?". This had not been mentioned in the account of his conversation with Mark set out in his affidavit, notwithstanding that he had understood the importance of setting out a full account of the conversation in his affidavit. I do not believe that Mr Elie Abousleiman asked Mark anything about development consent. His evidence to that effect was invented in cross-examination as he began to realise that his account of his conduct in relation to the Land departed from what he had described in cross-examination as his usual practice of checking about development consent before dumping material on land. I find that the true reason for Mr Elie Abousleiman's visit to the Land on 12 July 2018 was to dump a load of material there, which he said in cross-examination that he had done. Mr Elie Abousleiman is not a defendant to these proceedings.
As referred to at [80] above, Mr Elie Abousleiman recorded an eight second video of the Land on his mobile phone at 9:17am on 12 July 2018. As stated earlier in these reasons, the video shows parts of the Land in the vicinity of part of the access road that runs through the Land from the Sirius Road entrance gates. No mounds or piles of soil or other material are visible on the part of the Land shown in the video, but the surface of the earth appears to have been disturbed relatively recently. Three dump trucks are visible in the video and one of them has a trailer. Mr Demian gave evidence that he was not aware of the presence of trucks on the Land on 12 July 2018. The video does not depict the whole of the area of the Land in the vicinity of those dump trucks, and it is not possible to ascertain from the video whether there were mounds or piles of soil in that area. Mr Elie Abousleiman gave evidence that he saw a significant number of piles of soil on the Land while he was there, many of which were being moved and levelled out by heavy machinery that he saw there.
It was put to Mr Elie Abousleiman in cross-examination that he did not in fact see any mounds of material on the Land on 12 July 2018. He maintained that there were mounds on the Land, notwithstanding that they were not shown in the video. I accept that evidence, which is consistent with the presence of dump trucks on the Land as seen in the video. Moreover, the notion that the whole of the 1,427.3m3 of waste that Rove discovered on the Land on 16 July 2018 had been dumped there over the course of two days only on 13 and 14 July 2018 is highly improbable. The evidence adduced in these proceedings is to the effect that the defendants' trucks had a capacity of approximately 6m3 and, where they had trailer, this bolstered that capacity by an additional approximate capacity of 6m3. Assuming that each of the 74 trucks that Mr Demian observed entering the Land on 13 and 14 July 2018 during his review of the CCTV film had a total capacity of 12m3, that would account for only 888m3 of material. It is therefore probable, and I find, that the total volume of waste discovered on 16 July 2018 had been dumped on the Land over a number of days that extended beyond the two days that are the subject of Rove's claims, being 13 and 14 July 2018. Mr Elie Abousleiman's video indicates that it is likely that waste was dumped on the Land on 12 July 2018. There is no other explanation for the presence of the trucks seen in the video. At least Mr Elie Abousleiman dumped waste there on that date. As explained at [83] above, 13 and 14 July 2018 are the only days in respect of which Rove obtained and reviewed CCTV film for the purpose of these proceedings.
Mr Elie Abousleiman added a caption to the video that read: "New tip boys - Lane Cove West". He gave evidence that he only sent the video to his brother, Mr George Abousleiman. He denied posting it on any website or chat group or otherwise publishing it more widely than to his brother. I accept Mr Elie Abousleiman's denial. It is inherently unlikely that he would have chosen to exhibit the video to his affidavit if he had published it on websites and chat groups, as alleged. I reject the submissions made on behalf of Rove which urged the Court to find that Mr Elie Abousleiman had posted the video to a broader audience. Those submissions were based on principally on an interpretation of the demeanour of Mr George Abousleiman when giving evidence about the video taken by his brother. I did not interpret his demeanour in the manner for which Rove contends and, in any event, I would not consider his demeanour to be a sound basis for any finding about what Mr Elie Abousleiman did or did not do with the video.
Mr George Abousleiman gave evidence that he drove a load of material excavated from the Punchbowl site to the Land on three occasions on 13 July 2018 and on one further occasion on 14 July 2018. He described speaking to and taking directions from a man at the gates, who was wearing a high visibility vest and had a two-way radio, on the three occasions on 13 July 2018. He paid the gatekeeper $210 in cash for the three loads in one transaction when he arrived to dump the third load on 13 July 2018.
There was no one standing at the gate when he arrived on 14 July 2018, so he drove straight through the gates was stopped after about 70 metres by the man who had been standing on the gate yesterday, who directed him where to dump the load. He paid the man $70 in cash for this fourth load.
In cross-examination, Mr George Abousleiman was able to identify the general area of the Land in which he dumped the four loads of material on 13 and 14 July 2018, but was unable to identify the precise mounds that he had dumped.
For the reasons explained at [235] above, the evidence does not establish on the balance of probabilities that the material that Mr George Abousleiman dumped on the Land was VENM. In cross-examination, he accepted that even VENM is waste and that it cannot be dumped on a site which is not approved to accept it. He agreed that the necessary approval is granted either by the EPA or by the relevant local council. Mr George Abousleiman denied that he knew that the Land did not have approval to receive the material that he dumped there. However, he accepted that his only knowledge about the Land was what his brother had told him, that he did not know who his brother had spoken to and neither he nor his brother had dealt with that person previously, that there was no signage indicating that the Land was a tip or development site, and that he paid the dumping fee in cash to the gatekeeper. For the reasons explained above, I have found that Mr Elie Abousleiman did not seek any information about any development approval before Mr George Abousleiman took the Punchbowl site material to the Land for dumping. Mr George Abousleiman gave evidence in cross-examination that he knew in 2018 that illegal dumping did occur. He gave evidence that he used to deal with builders who were known to him and required material to be dumped on their construction sites. He said that, if a builder he did not know requested material, he would do some checks to make sure that what they were telling him was true. On his own account, he made no such checks before dumping waste from the Punchbowl site on the Land.
Mr George Abousleiman gave evidence that the truck in which he transported the four loads of material from the Punchbowl site to the Land on 13 and 14 July 2018 had a capacity of 11 tonnes. On the basis of the evidence of Mr Tsompanidis and Mr Sullivan referred to at [184] above, this would equate to a volume of approximately 6m3. Accordingly, I find that Mr George Abousleiman dumped 24m3 of material from the Punchbowl site on the Land on 13 and 14 July 2018. This equates to approximately 1.7 per cent of the total volume of waste of 1,427.3m3 that Rove discovered on the Land on 16 July 2018 and removed from the Land during 2019. On the basis of Mr George Abousleiman's evidence about the four occasions on which he dumped the material over that two-day period, I find that he entered the Land and dumped the material intentionally on each occasion.
Mr George Abousleiman's intentional entry and dumping of material on the Land on the four occasions on 13 and 14 July 2018 constituted trespass unless he succeeds in establishing his pleaded defence that he entered and deposited material on the Land on 13 and 14 July 2018 pursuant to a licence granted by the person in possession and control of the Land or, alternatively, by the gatekeeper who was the ostensible or apparent agent of Rove. [34]
Mr George Abousleiman's submissions in support of his defence were adopted by Chomp in support of its similar pleaded defences. I have already summarised the substance of those submissions, and explained my reasons for rejecting them, at [194]-[206] above. Mr George Abousleiman's defence fails for those reasons.
Had it been necessary to determine whether Mr George Abousleiman took reasonable steps to ascertain whether it was lawful to dump the material from the Punchbowl site on the Land, I would have found that it he did not. He relied on information conveyed to him by his brother, the source of which was an unidentified person with whom neither he nor his brother had had any previous dealings. They had not made any inquiries with that person about whether the Land was an authorised waste facility or a development site, and Mr George Abousleiman saw no signage indicating that the Land was either of those things when he delivered the material to the Land on 12 and 14 July 2018.
Mr George Abousleiman also relies on the defences referred to at [11]-[12] above, which are addressed at [261]-[274] below.
Mr Gawidziel's evidence in cross-examination was riddled with inconsistencies about the precise course of his dealings with Mitch, but nothing material turns on the inconsistencies. He was not challenged about his evidence that the material that his driver dumped on the Land on 13 July 2018 was from the Baulkham Hills site for which the VENM waste classification certificate was tendered.
Mr Gawidziel gave evidence in cross-examination that his truck and trailer had a 30-tonne capacity in total. Applying Mr Sullivan's evidence referred to at [184] above that each cubic metre of soil accounts for approximately 1.8 tonnes, I find that Mr Gawidziel's driver dumped approximately 16.67m3 of VENM on the Land on 13 July 2018. There is no suggestion that this was done other than intentionally. VENM is waste within the meaning of the POEO Act. [35] There is no evidence that Rove consented to that material being dumped on the Land. The circumstances described in Mr Gawidziel's evidence would not give rise to any defence to the effect that his driver was authorised to enter the Land by a person acting with Rove's actual or ostensible authority. The reasons for this are essentially the same as my reasons set out at [195]-[206] above for rejecting those defences pleaded by Chomp. Had it been necessary to determine whether Mr Gawidziel took reasonable steps to ascertain whether the owner or person lawfully in possession of the Land consented to the dumping of his material, I would have held that he did not take such reasonable steps. On Mr Gawidziel's own evidence, he knew nothing about the person allegedly named Mitch, and he understood that it was important in the circumstances to check that the site was in fact a development site in need of VENM. To that end, he asked to be provided with the development consent, but directed his driver to dump the material on the Land before he received that development consent, which was ultimately never provided to him.
I note that Mr Gawidziel's evidence did refer to paying Mitch for "loads" (plural). As best I was able to understand the evidence, Mr Gawidziel was referring to the one load delivered by his driver and those loads delivered by the drivers of trucks operated by Mr Richard Gawidziel and Carlo that Mr Gawidziel said were subcontracted to him on 13 July 2018. As noted at [254] above, Rove sues Mr Gawdziel in respect of one incident of trespass only. Rove sued Carlo and Mr Richard Gawidziel separately and applied for default judgment against them. The applications for default judgment are addressed at [288]-[293] below.
For the reasons above, I find that Mr Gawidziel trespassed on the Land on one occasion on 12 or 13 July 2018 when his driver intentionally drove onto the Land and dumped approximately 16.67m3 of VENM on the Land. The volume of that dumped VENM represents approximately 1.2 per cent of the total volume of 1,427.3m3 that Rove removed from the Land in 2019.
Rove referred to Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; (2013) 87 ALJR 505; (2013) 296 ALR 3; [2013] Aust Torts Reports 82-127; [2013] NSW ConvR 56-314; [2013] ANZ ConvR 13-012; [2013] HCA 10 (Hunt & Hunt), in which French CJ, Hayne, and Kiefel JJ emphasised the importance of the proper identification of the harm prior to determining what acts or omissions caused that harm: at [19], [24], [43]-[45]. Their Honours emphasised that the harm is not to be equated with the damages that might ultimately be awarded, and observed that identification of the harm will be informed by the nature of the interest infringed and, in some cases, the nature of the interference to which that interest is subjected: at [25]-[26]. One wrongdoer's acts may be independent of another wrongdoer's acts yet cause the same harm: at [41]. Their Honours were speaking of a cause of action in negligence, but their observations apply equally a cause of action in trespass where the plaintiff claims compensatory damages.
In the present case, the harm suffered by Rove was the interference with its right to exclusive possession of its Land when each defendant entered and dumped on the Land material that Rove did not want there, and which Rove did not consent to being dumped there, and the interference with its economic interests that flowed from the need to remove and dispose of that material. Rove does not contend that it suffered a diminution in the value of the Land or economic loss by reason of an inability to use the Land for a period of time while the dumped material remained on the Land. Each defendant's trespass was committed - and the resulting harm was inflicted on Rove - independently of each other defendant. The evidence that I have summarised in detail above shows that each defendant received information suggesting that material could be dumped at the Land from an advertisement, a telephone call or other conversation that did not involve any other defendant. There is no evidence that any defendant was known to any other defendant. Each of them had separate dealings with "Mark", "Mitch", or an unidentified caller, and with the gatekeeper. Each defendant transported their material to the Land from separate building sites in disparate locations throughout Sydney. The defendants dumped that material on the Land on separate occasions over the course of 13 and 14 July 2018. Rove suffered a separate harm on each occasion of unauthorised entry and dumping on the Land. Each separate harm was of the same nature, and was ameliorated in the single remediation operation that Rove undertook during the period between February and July 2019. However, the single remediation operation does not alter the fact that each defendant caused a separate harm on each occasion when that defendant entered and dumped material on the Land. Each defendant is thus liable to pay compensatory damages that would put Rove in the same position it would have been in if that defendant had not committed the trespass that resulted in the separate harm that I have identified. The total costs of the remediation operation represents the starting point for assessing the quantum of compensatory damages payable by each defendant, as discussed further below.
The submissions made on behalf of Rove erroneously equated the whole of the cost of its remediation operation with the harm occasioned by each defendant's trespass, contrary to Hunt & Hunt. The present case is very different from the case of Hunt & Hunt, where the respondent lender had suffered one harm, being its inability to recover the moneys advanced, and there were two conditions that had caused that harm: (a) the loan agreement was void because the borrower's signature had been forged; and (b) the mortgage document did not contain a debt covenant. A fraudster was responsible for (a), and the lender's solicitors (the appellants) were responsible for (b). [38]
Chomp's submissions to the effect that there was one harm because the evidence did not establish the weight and volume of the material dumped by each defendant, the number of stockpiles each defendant dumped, and the precise location of those stockpiles on the Land, were infected by the same error. [39] Irrespective of whether the material dumped by each defendant contained asbestos, the material was waste within the meaning of the POEO Act. Rove did not want any of the waste on the Land, which it was in the process of selling, and so removed all of it. Haulbuild's submission that Rove was only required to remove asbestos waste from the Land in order to comply with its obligations to the purchaser of the Land, and could have left non-asbestos waste dumped by the defendants in situ, is contrary to the evidence referred to at [139] above. The removal of all of the waste dumped by each defendant was the natural and probable consequence of that defendant's trespass: TCN v Anning at [100], [103]-[104] (Spigelman CJ, Mason P and Grove J agreeing). Difficulties in precisely identifying and quantifying the waste dumped by each defendant, and whether that waste contained asbestos waste, are relevant to the quantification of the compensatory damages payable by each defendant for the separate harm caused by its trespass. Those difficulties do not warrant the harm being characterised as one harm, in my opinion.
It is not strictly necessary to address the defendants' alternative submissions that, if they are each liable for the whole of the costs of Rove's remediation exercise, that liability is a single "apportionable loss" within the meaning of s 34 of the Civil Liability Act that should be apportioned between them and other third parties as concurrent wrongdoers pursuant to s 35 of that Act. I make the following brief observations in case they become relevant in the context of any appeal.
The alternative submissions of the defendants, and the submissions made on behalf of Rove, assumed that Rove's claim was a claim for economic loss "arising from a failure to take reasonable care" and therefore an "apportionable claim" within the meaning of s 34(1)(a) of the Civil Liability Act. In my opinion, that assumption was incorrect. In order for s 34(1)(a) to apply, it is necessary for the absence of reasonable care to have been an element of the cause of action on which the plaintiff succeeded: Rahme v Benjamin & Khoury Pty Ltd (2019) 100 NSWLR 550; [2019] NSWCA 211 at [135]-[137] (Macfarlan JA, Bathurst CJ and McCallum JA agreeing). In the present case, negligence was neither pleaded as an element of the causes of action in trespass, [40] nor found as a matter of fact giving rise to the defendants' liability for trespass. It follows that Rove's claim, if properly characterised as a single claim contrary to my conclusion above, is not an "apportionable claim" within the meaning of s 34(1)(a), that s 35 of the Civil Liability Act therefore does not apply. That conclusion does not depend on s 34A of the Civil Liability Act and whether or not the defendants intended to cause the economic loss that is the subject of Rove's claim.
If it had been necessary to determine whether the defendants intended to cause the economic loss, I would have held that Chomp's conduct described at [159]-[209] above exhibited contumelious disregard for Rove's rights. In particular, Mr Tsompanidis pursued the opportunity to dump material on the Land without making any proper inquiries to ascertain whether waste could lawfully be dumped there, and whether the owner or lawful occupier of the Land wanted or agreed to receive the waste. Notwithstanding his knowledge of the environmental laws relating to the transport and disposal of waste, and his knowledge that illegal dumping was a plague on the construction industry, and that clandestine tipping operations burden land owners with unwanted waste and fill, Mr Tsompanidis was content to dump material on the Land for payment of a cash fee on the word of an unidentified caller and the unnamed gatekeeper, in circumstances where he knew that the Land was not a waste facility and he did not see any signage indicating that the Land was a construction site. I would have held that this conduct displayed an utter lack of concern for whether Rove would suffer loss as a result of Chomp dumping waste on the Land, but that it fell short of amounting to an intention to cause loss to Rove. The case is distinguishable from IBEB Pty Ltd v Duncan [2011] NSWCA 368, in which the defendant had deliberately provided false information to the purchaser about the business being sold, with the intention that the purchaser would act on that false information.
I would have held that Haulbuild's conduct referred to at [211]-[225] above did not involve contumelious disregard for Rove's rights and did not exhibit an intention to cause loss to Rove. In instructing Mr De Bus to cart the material from the George Street site to the Land and dump it there, Mr Awick was relying on instructions that he had received from Mr Moussa of Belzig Pty Ltd, which had engaged Haulbuild for the job. Mr De Bus in turn relied on instructions from Mr Awick. Mr Awick readily accepted in cross-examination that he should have made further inquiries. That concession, made with the benefit of hindsight, constitutes carelessness rather than contumelious disregard for Rove's rights, and falls a long way short of an intention at the time to cause loss to Rove. Section 34A of the Civil Liability Act does not exclude a defendant who is otherwise a "concurrent wrongdoer" in respect of an "apportionable claim" by reason of carelessness, or even gross negligence: Kayteal Pty Ltd v Dignan [2011] NSW ConvR 56-280; [2011] NSW Titles Cases 80-138; [2011] NSWSC 197 at [64]-[74] (Brereton J, as his Honour then was).
I would have held that Mr El Kadomi's conduct referred to at [227]-[232] above did not support a finding the he intended to cause loss to Rove. Although he is responsible for his employee's conduct, Mr El Kadomi had no involvement in Mr Cimone's decision to dump material on the Land. Mr El Kadomi made the decision not to dump the only load of material that he personally transported to the Land. For the same reasons, Mr El Kadomi cannot fairly be said to have acted with contumelious disregard for Rove's rights, in my opinion.
As referred to at [234]-[252] above, Mr George Abousleiman dumped waste on the Land on the basis of his brother's telephone conversation with an unidentified person, without making any proper inquiries about whether the Land could lawfully receive the waste and without identifying any sign indicating that the Land was either a waste facility or a development site. I characterise this conduct in the same way as Chomp's conduct referred to above. It displayed contumelious disregard for Rove's rights, but fell short of exhibiting a positive intention to cause loss to Rove.
Mr Daniel Gawidziel's conduct referred to at [256]-[260] above exhibits carelessness in failing to ensure that he received a copy of the development consent promised by Mitch before allowing his subcontracted driver to dump material at the Land. In my opinion, his conduct falls short of contumelious disregard for Rove's rights and does not support a finding that he intended to cause loss to Rove.
I now turn to the assessment of the compensatory damages to which Rove is entitled against each defendant for the separate harm that it caused. The measure of damages is that which accords with the compensatory principle of putting Rove in the same position it would have been if that defendant had trespassed and dumped waste on the Land.
Because neither Rove nor the defendants are able to identify the precise material that each of the defendants dumped, the assessment of those compensatory damages as against each defendant cannot be undertaken by quantifying the costs incurred by Rove in removing that precise material. Contrary to the defendants' submissions, this does not relieve the Court of the obligation to assess damages as best it can on the basis of the available evidence, provided that it has a rational foundation to make an estimate. It is for the plaintiff to adduce such evidence as is reasonably available that will provide that rational foundation: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; (1991) 66 ALJR 123; (1991) 104 ALR 1; [1991] HCA 54 (at 174 CLR 83, per Mason CJ and Dawson J). Rove has provided that rational foundation in this case by adducing evidence from Mr Millard of the total cubic metre volume of waste that was discovered dumped on the Land on 16 July 2018, adducing documentary evidence of work done to remove that material and the costs of that work (including the difference between the cost per cubic metre of removing and disposing of asbestos waste compared to other waste), and by adducing evidence from each of the defendants in cross-examination about the cubic metre capacity of their trucks and the number of occasions on which each of those trucks dumped material on the Land.
The starting point for the quantification of the compensatory damages payable by each defendant is that the total cost incurred by Rove in removing 1,427.3m3 of waste from the Land and disposing of that waste was $945,479.64, which would equate to $662.43 per cubic metre. However, applying that rate to the volume of material dumped by each defendant would incorporate part of the cost of removing and disposing of asbestos waste into the damages payable by each defendant in circumstances where Rove has not established that any defendant's material in fact contained asbestos waste. Whilst the defendants bore the onus of proving their contention advanced for the purpose of their leave or licence defences that their material was free of asbestos waste, Rove bears the onus of proving that the defendants' waste did contain asbestos if compensatory damages are to be awarded against them by reference to the cost of removal and disposal of asbestos waste. In my opinion, the approach that best gives effect to the compensatory principle in all the circumstances is to divide the remediation costs into two components for the purpose of quantifying the damages payable by each defendant:
1. the total costs of $603,920 incurred for the removal and disposal of the waste, [41] which were charged at the rate of $521.38 per cubic metre for asbestos waste and $323.76 per cubic metre for waste that did not contain asbestos; [42]
2. all other remediation costs paid by Rove, which amount to $341,559.64, [43] or $239.30 per cubic metre. [44]
I reject the submissions made on behalf of Haulbuild and Mr George Abousleiman that the $84,589.07 supervision fee paid to Linx should be excluded from the second component of remediation costs above for the purpose of assessing compensatory damages. There is no principled basis to exclude those costs. As Mr Demian explained in cross-examination, Rove was a land-holding company and it subcontracted the management and supervision of the work to Linx, which had the staff to provide those services. There is no evidence that the amount of the fee for managing and supervising the work, which involved several contractors working on site at various times over the period of approximately six months between February 2019 and July 2019, was excessive.
Applying the rates set out above, the compensatory damages to be awarded in favour of Rove to are to be quantified by applying a cubic metre rate of $563.06 to the cubic metre volume of material that each defendant dumped on the Land. [45] Given the wide variation in the volume of the 209 piles identified in Mr Millard's report, I consider that this is a more accurate approach to quantification than the approach suggested by Chomp based on attributing a number of piles to each defendant out of the 209 piles.
On the basis of the cubic metre rate of $563.06 referred to above, together with my earlier findings about the volume of material dumped on the Land by each defendant, I quantify the compensatory damages to be awarded against each defendant as follows:
1. $20,270.16 against Chomp, which dumped a total volume of approximately 36m3 on the Land;
2. $23,648.52 against Haulbuild, which dumped a total volume of approximately 42m3 on the Land;
3. $13,513.44 against Mr El Kadomi, whose employed driver Mr Cimone dumped approximately 24m3 on the Land;
4. $13,513.44 against Mr George Abousleiman, who dumped approximately 24m3 on the Land; and
5. $9,386.21 against Mr Daniel Gawidziel, whose subcontracted driver dumped approximately 16.67m3 on the Land.
Rove's closing submissions made no mention of its pleaded claim for aggravated damages. That claim is therefore taken to be abandoned.
It remains to consider Rove's claim for exemplary damages.
Exemplary damages are punitive rather than compensatory in nature. They are awarded to express the court's disapproval of, and to punish, conduct of a defendant who has been guilty of conscious wrongdoing in contumelious disregard of the plaintiff's rights, and to deter conduct of that nature by the defendant and by other like-minded persons. There is no necessary proportionality between compensatory and exemplary damages: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; (1985) 59 ALJR 352; (1985) 57 ALR 639; [1985] Aust Torts Reports 80-317; [1985] HCA 12 (at 155 CLR at 461, per Gibbs CJ, Mason and Wilson JJ agreeing, and 471, per Brennan J, as his Honour then was), cited with approval in Lamb v Cotogno (1987) 164 CLR 1; (1987) 61 ALJR 549; (1987) 74 ALR 188; [1987] Aust Torts Reports 80-124; (1987) 5 MVR 449; [1987] HCA 47 (at 164 CLR 9-10); TCN v Anning, at [157] and [166] (Spigelman CJ, Mason P and Grove J agreeing).
Consistently with those principles, exemplary damages should be awarded against Chomp and Mr George Abousleiman, but not against Haulbuild, Mr El Kadomi, or Mr Daniel Gawidziel, for the reasons explained at [270]-[274] above.
Rove submitted that exemplary damages should be awarded in such amount as the Court thinks fit. In order to achieve the deterrence objective referred to above, it is my opinion that exemplary damages should be awarded in an amount which makes it prohibitively costly for Chomp, Mr George Abousleiman, and other persons involved in the transport and disposal of waste to dump material on land without first taking proper steps to ascertain whether the owner or lawful occupier consents to receive the material. In my opinion, the determination of such an amount in the case of Chomp and Mr George Abousleiman would be informed by evidence of the revenue they earned from carting each load of material to the Land. There was no evidence before the Court would facilitate an approximately calculation of that revenue. Doing the best I can in the circumstances, I consider that $5,000 per load is an amount of exemplary damages that appropriately marks the Court's disapproval of the conduct of Chomp and Mr George Abousleiman's conduct, and that will also have the intended deterrent effect. It follows that exemplary damages will be awarded against Chomp in the amount of $25,000 and against Mr George Abousleiman in the amount of $20,000, in addition to the compensatory damages referred to above.
I acknowledge that the amount of $5,000 per load is significantly less than the penalties payable in respect of an offence under s 143 of the POEO Act. However, I do not consider that the criminal penalty imposed in aid of the protection of the environment should be regarded as a guide to the amount of exemplary damages that appropriately marks disapproval of conduct interfering with Rove's right of exclusive possession of its land and achieves the desired deterrent effect. The POEO Act and the tort of trespass to land have different objects.
Rove also sought interest under s 100 of the Civil Procedure Act 2005 (NSW). Such interest will be awarded in respect of the awards of compensatory damages for the period from 14 July 2018 until the date of judgment. Such interest is to be calculated in accordance with Practice Note SC Gen 16 - Pre-judgment interest rates. Exemplary damages do not bear interest until the date of judgment: TCN v Anning at [166] (Spigelman CJ, Mason P and Grove J agreeing).
See [102] above.
Referred to at [18] above.
Including the closing submissions made on behalf of Mr Abousleiman on this topic, which Chomp adopted.
These submissions were made on behalf of Mr Abousleiman and adopted by Chomp: T500.
See the observations of Dixon CJ to the same effect at 101 CLR 304, with which Taylor J agreed.
See the authorities referred to at [193] above.
See [17] and [193] above.
See [39]-[43] above.
See [163] above.
See [186] above.
See the authorities referred to at [193] above.
See [39]-[43] above.
See [163] above.
See [194] above.
See the authorities referred to at [193] above.
See [39]-[43] above.
SLHD v Macquarie at [75]-[77].
Save for Chomp's submission contending for an unspecified adverse inference, which I have rejected at [77]-[78] above.
Hunt & Hunt at [9] and [49] (French CJ, Hayne and Kiefel JJ).
This submission was made in support of Chomp's contention that Rove's claim was a single apportionable claim to which Pt 4 of the Civil Liability Act applies.
Although it was referred to in submissions, as referred to at [20] above.