The Hills Shire Council v Mouawad

The 2011 Local Court Proceedings 5As was disclosed in my earlier decision in Mouawad v The Hills Shire Council; Mouawad v The Hills Shire Council [2013] NSWLEC 165, Mr Mouawad together with his wife, Ms Ninoska Mouawad, Frontier Civil (Australia) Pty Ltd ("FCA") and Frontier Civil Engineering Pty Ltd ("FCE"), were charged with offences contrary to s 143 of the Protection of the Environment Operations Act 1997 ("the POEOA"), for unlawfully transporting waste to a place that could not lawfully be used a waste facility. 6The basis of Mr and Mrs Mouawad's liability was by reason of their status as the sole directors of FCE and FCA respectively, pursuant to s 169 of the POEOA (the accessorial liability provisions). 7In the Local Court the learned Magistrate found each of the offences proved on 9 March 2011 and, as a consequence, FCA, FCE, Mrs Mouawad and Mr Mouawad were convicted and fined on 6 April 2011, and ordered to pay the council's costs.

The 2013 Land and Environment Court Appeal 8On 5 April 2011, Mr and Mrs Mouawad appealed to this Court against their conviction and sentence under s 31 of the Crimes (Appeal and Review) Act 2001 ("the 2013 LEC appeal"). In an appeal against conviction and sentence, the Court considers the matter afresh and resolves for itself the ultimate issues for determination. The appeal is not for error of law. 9The hearing took place before me over three days (5 September, 30 November and 1 December 2011). The appeal was determined based on a consideration of the evidence adduced before the Local Court only. Having said this, the volume of this evidence was not inconsiderable. It included evidence given by Mr Mouawad with respect to the transportation of the impugned fill material to its ultimate destination (in Annangrove). In particular, the evidence constituted a denial by Mr Mouawad of any involvement in the unlawful transportation. 10As was stated in Mouawad (at [56]-[57]): 56. The principal plank of Mr Mouawad's appeal against conviction was that the council could not prove to the criminal standard that Mr Mouawad's company, FCE, was criminally liable for the conduct of FCA in transporting the waste to the Annangrove site. Although Mr Mouawad readily conceded that the material was transported from the Lindfield site to the Annangrove site in trucks owned by FCE, he nevertheless contended that the trucks had been driven by drivers employed by FCA (Mr Pardo and Mr Thurston) at the direction of Mr Anjoul, an employee of FCA, who in turn had acted upon instructions he had received from Mrs Mouawad, the director of FCA. Accordingly, Mr Mouawad submitted that neither he nor FCE in fact transported the material to the Annangrove site. 57. In addition, Mr Mouawad submitted that the evidence did not establish that he, or any other officer or employee of FCE, instructed or authorised the individuals who physically transported the waste to the Annangrove site to do so. Nor did he, he submitted, instruct Mr Anjoul or Mrs Mouawad to transport the waste to that site. 11In Mouawad the Court continued its reasoning as follows (at [98], [105] and [106]): 98. It was uncontroversial that the conduct of Mr and Mrs Mouawad was the conduct of FCE and FCA respectively. And nor could it be. Mr Mouawad was the sole director and shareholder of FCE and FCE had no employees. Mrs Mouawad was the sole director of FCA and although the shares in FCA were held by F C Group Pty Ltd ("FCG"), Mrs Mouawad was also the sole director of FCG and held all of the shares in that corporate entity. ... 105. The council drew support from the fact that the fill material transported to the Annangrove site on 11 and 12 May 2009 was transported in FCE trucks, badged as such, using FCA drivers. There was no written contract in place governing the oral arrangement between FCA and FCE, there was no evidence of any fee negotiated for the transportation and no formal invoices appeared to have been issued from FCE to FCA, for the use of FCE's trucks, or by FCA to FCE for the haulage, for that particular transaction. 106. In my opinion, when regard is had to the totality of the evidence, it demonstrates to the criminal standard that FCA was acting as FCE's agent in transporting the waste. My reasons are essentially twofold. 12The Court held that the proximity of the relationship between FCE and FCA was highly probative of a relationship of agency from which it could be inferred that FCA had been incorporated to carry out demolition, excavation and waste transportation work on behalf of FCE (at [107]). Thus FCA was, to all intents and purposes, publicly presented as an emanation of FCE and fully clothed with the authority to act on its behalf (at [108]). 13Further, it was inferred that "despite protestations to the contrary from Mr Mouawad", FCA was acting within the scope of its authority from FCE when it transported the waste to Annangrove, having regard to the evidence before the Court (at [109]). 14The Court therefore arrived at the following conclusion (at [110], emphasis added): 110. In my opinion, Mr Mouawad's denials that he had anything to do with the transportation of the fill material to Annangrove are implausible when assessed against the totality of the evidence above. Put another way, the evidence is insufficient to support a reasonable possibility that Mr Mouawad was not involved in the transportation of the waste from Lindfield to the Annangrove site or that FCA was acting outside the authority that FCE had conferred upon it. 15Mr Mouawad's appeal was dismissed with costs.

The 2014 Land and Environment Court Proceedings 16In the present proceedings, Mr Mouawad is charged, by way of summons, that from 30 June 2013 and continuing, he has, and continues to, commit an offence contrary to s 91(5) of the POEOA ("the 2014 LEC proceedings"). 17Section 91(5) of the POEOA relevantly states as follows: 91 Clean-up by occupiers or polluters (5) A person who, without reasonable excuse, does not comply with a clean-up notice given to the person is guilty of an offence. 18The charge against Mr Mouawad is particularised by the council in the summons the following way: Premises: Lot Z DP 388983 known as 704 Old Northern Road, Dural NSW 2158 Clean-Up Notice: Pursuant to section 91(1) of the Act, the Prosecutor, being the appropriate regulatory authority for the purposes of the Act, directed the Defendant being a person reasonably suspected by the Prosecutor of having caused a pollution incident, by way of a Clean-Up Notice dated 22 January 2013, to take clean-up action as specified in the notice within the period stipulated. Non-Compliance: The Defendant, without reasonable excuse, did not comply with the directions given in the Clean-Up Notice to: (a) Carry out all remediation works as specified in the Remediation Action Plan prepared by Noel Arnold & Associates and attached to the Clean-up Notice, by 4.00pm on 31 May 2013; and (b) Provide to Council a copy of the post-remediation Site Validation Report by 4.00pm on 30 June 2013. At the date of filing of this summons, the Defendant has still not complied with the directions.

19At this juncture it is convenient to note that the 2014 LEC proceedings are wholly unrelated to the 2013 LEC appeal and concern a different offence under the POEOA. As may be seen from the authorities discussed below, it is therefore at least arguable that, notwithstanding the earlier finding made against Mr Mouawad's credit in the 2013 LEC appeal, disqualification on the grounds of apprehended bias is not axiomatic. 20The issue was rendered more complex by Mr Mouawad's disclosure that, when his application first came on for hearing, he would be filing an Amended Defence Response. This meant that the Court did not know with certainty how Mr Mouawad intended to defend the charge brought against him. 21Mindful of the inability of the Court to compel Mr Mouawad to disclose his defence having regard to his right to silence, the Court nevertheless opted to adjourn the hearing of the application for disqualification until such time as the Amended Defence Response had been filed by him. The Court was concerned that the disqualification application may have been brought prematurely insofar as it was possible that only technical defences to the charge might be relied upon by Mr Mouawad. If this were the case, then the stated ground for the apprehended bias disqualification could be rendered otiose. For example, a challenge to the clean-up notice on the grounds that its terms were fatally defective for uncertainty would be unlikely to give rise to a legitimate ground for disqualification on the basis of apprehended bias. 22The Amended Defence Response stated the following "additional preliminary disclosure" (emphasis added): Without limiting the defences which may be available to the defendant, the defendant may raise the following matters in his defence at the trial: (a) Whether the Clean-Up Notice was validly served; (b) Whether the Clean-Up Notice was received by the defendant; (c) Whether the Clean-Up Notice was brought to the attention of the defendant; (d) Whether the defendant was aware of the Clean-Up Notice; (e) Whether the Clean-Up Notice is a valid notice; (f) Whether the defendant had a reasonable excuse not to comply with the Clean-Up Notice; (g) Whether the defendant arranged for the landfill material alleged to have caused the pollution incident to be transported to and deposited at the property in the relevant period. 23It was therefore clear that at the trial Mr Mouawad would make a collateral challenge to the clean-up notice, and, more importantly, would not confine his defence to this matter alone and could be relying on defences where his credit was squarely in issue.

Legal Principles Applicable to an Application to Disqualify a Judge on the Grounds of Apprehended Bias for Pre-judgment 24As alluded to above, the test to be applied when determining whether a judge should disqualify himself or herself by reason of apprehended bias is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide (Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 300; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]; British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [104]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31]). 25The rationale for the apprehension of bias rule was described in British American Tobacco Australia Services Limited as follows (at [139]): 139. It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature. 26The manner in which the test is to be applied was set out in Ebner (at [8], restated in Michael Wilson & Partners at [63]): 8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed. 27Whether the test comprises two steps or three (as to the latter, see R v El-Zeyat and Aouad [2012] NSWSC 340 at [20] per Johnson J) does not ultimately matter. Translated to the present application, it involves, first, a consideration of whether the matters raised by Mr Mouawad have a logical connection with the feared deviation by me from the course of determining the issues raised by the 2014 LEC proceedings on the merits by reason of pre-judgment. Pre-judgment means having a closed mind as to the creditworthiness of Mr Mouawad, in the sense of not being open to persuasion by any evidence or submissions from him that he is a witness of truth. 28The application of the second limb of the Ebner test does not require an inevitable conclusion to be drawn from the facts that a reasonable fair-minded observer would consider that there was a possibility that I had pre-judged the issue. Rather, "the test to be applied is framed at all stages at the level of possibility. What is required is that a fair-minded observer might perceive a logical connection between the matters raised and the possibility of the decision-maker not bringing an impartial mind to the issue" (Duncan v Ipp [2013] NSWCA 189; (2013) 304 ALR 359 at [147] per Bathurst CJ). 29As the plurality in Johnson explained, "the hypothetical reasonable observer of the judge's conduct is postulated to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues" (at [12], quoted in Michael Wilson & Partners Ltd at [32]). 30The application of the apprehension of bias rule plainly depends on the particular circumstances of each case (Livesey at 299-300 and British American Tobacco Australia Services Limited at [133]). It must be emphasised that, it is not an application that is made lightly, or agreed to without anxious consideration by the judge to whom it is directed. It must be "firmly established" that a reasonable fair-minded observer might perceive a logical connection between the matters raised and the possibility of the decision-maker not bringing an impartial mind to the issue; the connection must be one capable of being drawn as a real and not remote possibility (Duncan v Ipp at [148] per Bathurst CJ citing R v Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50 per Gibbs ACJ). 31As is evident from the discussion above, the apprehension Mr Mouawad has raised is that having made an adverse finding in respect of Mr Mouawad's credit in the 2013 LEC appeal, I might not accept as truthful any evidence given by him in the 2014 LEC proceedings. As the Amended Defence Response reveals, such evidence might include that Mr Mouawad did not receive notice of the clean-up notice, or more pointedly, that he did not arrange for the landfill material alleged to have caused the pollution incident giving rise to the clean-up notice, to be transported and deposited as particularised in the charge. 32Of course judges are equipped by training, experience and their oath (or affirmation) to decide factually contested matters solely on the material that is in evidence (British American Tobacco Australia Services Limited at [140]). Moreover, the reasonable hypothetical observer understands that whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial, which can lead to a different determination. 33Thus in this instance, the hypothetical reasonable observer would have some understanding that the finding of implausibility made in the 2013 LEC appeal was made on different evidence, in the context of a different factual matrix, including a different offence. 34Nevertheless, it must be acknowledged that the clear expression stated by me in the 2013 LEC appeal of my assessment of Mr Mouawad's credit might be perceived as influencing my determination of Mr Mouawad's credit in the 2014 proceedings. As stated above, this is especially the case with respect to the foreshadowed challenge by Mr Mouawad to the allegation that he arranged for the landfill material to be transported to and deposited at the property thereby giving rise to the clean-up notice and his subsequent asserted failure to comply with that notice. 35The similarity between this allegation and its likely denial, and the denial by Mr Mouawad and rejection by me in the 2013 LEC appeal of a similar allegation, cannot be readily ignored or easily discounted by even the most reasonable of hypothetical observers. Accordingly, and if for no other reason, when regard is had to the earlier adverse finding of credit in the 2013 LEC appeal, it is a similarity that is sufficient, in my view, to found a reasonable apprehension of bias for which I must disqualify myself. 36Although not every negative comment made about a witness can properly be considered to be a comment on their credibility leading inexorably to an apprehension of pre-judgment (for example, a comment by a judge that a solicitor's conduct in charging a contingency fee was improper and unethical was held not to be a relevant finding of credit giving rise to an apprehension of bias: see Rogerson v Tchia (1993) 113 FLR 436), in my opinion, the finding that Mr Mouawad's denial was "implausible", as opposed to a more robust adverse assessment of his credit, does not give rise to a credible submission that this was not an adverse finding of credit in the appropriate sense. 37According to the Macquarie Dictionary (online ed), the term means "not plausible: not having the appearance of truth or credibility". The word "plausible" means "having an appearance of truth or reason; seeming worthy of approval or acceptance; a plausible story". The Oxford English Dictionary (online ed) similarly defines "implausible" as "not having the appearance of truth, probability, or acceptability; not plausible". In short, according to its ordinary usage, the word means, in the context of the finding made by me at [110] of Mouawad, 'untruthful'. This is a meaning that would be attributed to it by the reasonable hypothetical observer described above. 38Relying on the decision in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; (1992) 9 ACSR 309, the submissions of Mr Mouawad rose as high as suggesting that whenever a judge is faced with an adverse finding of credit against a witness in a previous case whose credibility is in issue in subsequent proceedings before the same judge, disqualification must result. Having regard to the facts of that decision, I do not accept that the authority stands for this bald proposition. 39In Spedley Securities, the Court of Appeal, by majority, held that the trial judge, having heard the first of a number of complex related company proceedings, ought to have disqualified himself from hearing any further proceedings. The series of cases had been assigned to the same judge. Similar or identical issues were dealt with in each case. The trial judge made findings in some proceedings that were critical of the credit of some of the parties. The further proceedings raised the same issues that depended or might depend upon the evidence of the same witnesses in respect of which the judge had made the adverse credit findings. 40Therefore, if, as in Spedley Securities, there had been a series of related cases in which identical issues arose and where adverse findings of credit were central to the outcome of the first case, and where all other proceedings depended on the same evidence called from Mr Mouawad in that first case, Mr Mouawad's summary of the law would be unimpeachable. 41But those facts are not this case. The facts of Spedley Securities are distinguishable insofar as there is no relationship between the 2013 LEC appeal and the 2014 LEC proceedings and the offence in each matter is different. The fact that the defendant and the prosecutor are the same in each set of proceedings does not matter. 42In R v Masters (1992) 26 NSWLR 450; (1992) 59 A Crim R 445, decided three weeks after Spedley Securities, the issue arose again. On this occasion the Court of Criminal Appeal (differently comprised: Hunt CJ at CL, Allen and Badgery-Parker JJ) unanimously declined to follow Spedley Securities (Gleeson CJ, Kirby P, Samuels, Mahoney and Meagher JJA). 43In Masters, the District Court trial judge in a conspiracy trial had, in an earlier revocation of a bail application involving one of the accused, stated that he found the accused to be "a most unsatisfactory witness, and that a lot of his answers were unconvincing and inconsistent". Bail was revoked on the likelihood that the accused would commit further serious offences while on bail and the need to ensure the welfare of the community (at 469 D-E). The accused then sought bail in the Supreme Court where it was granted. On appeal the accused argued that the trial judge ought to have disqualified himself because of the "strongly adverse" views expressed by the judge and the finding that he was likely to commit further serious offences while on bail. 44The Court of Criminal Appeal applied the reasoning of Mason J in Re JRL; Ex parte CLJ (1986) 161 CLR 342, where his Honour opined that an apprehension of bias arose not from a reasonable apprehension that the judge would decide the case adversely to one of the parties, but from an apprehension that the judicial officer would not decide the case impartially or without prejudice (at 352). He noted that there were many situations where previous decisions of a judicial officer on issues of fact or law generated an expectation that he or she would decide the case adversely to a party, but that these would not necessarily sound in disqualifying pre-judgment (at 352). The Court of Criminal Appeal concluded that "the fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to pre-judgement which may require him to disqualify himself in order to avoid an apprehension of bias" (at 471). 45Masters was followed in R v Lars ((1994) 73 A Crim R 91 per Wood, Mathews and Badgery-Paker JJ). In that case, disqualification of a judge was sought because of an adverse finding of credit in respect of the accused made by the judge during a ruling on a voir dire. The judge refused recusal and the accused was convicted. The appeal on the ground of apprehended bias was dismissed. The Court of Criminal Appeal held that there was no reason for the judge to "disqualify himself from further presiding in the trial or from dealing further with any other matter involving the same accused, where circumstances might arise in which he had to make a decision involving again an assessment of the credibility of the accused" (at 108). 46With great respect, it is not easy to reconcile the statements in Masters or Lars with either the decision in Livesey, or the more modern articulations of the apprehended bias rule in Johnson, British American Tobacco Australia Services Limited and Michael Wilson & Partners. As the learned author John Tarrant has observed in his useful and compact text Disqualification for Bias (The Federation Press, 2012), the approach taken in Masters "leaves very little room for the Livesey doctrine in relation to the credibility of witnesses to operate" (p 110). 47Both parties urged upon me to follow the approach in Spedley Securities rather than Masters. I agree with their exhortation. Exceptions to the Apprehended Bias Rule 48In his written submissions Mr Mouawad opined that it was "rare" for the same judicial officer to have the potential to hear a subsequent criminal trial, having heard one earlier involving the same parties. While this may be true in other larger superior courts, it is not the case in small and specialised courts such as the Land and Environment Court, which hears and determines most of the serious environmental crime in this State. 49The result is that it is not unusual for the same parties and witnesses to appear regrettably regularly before the same judge in both civil and criminal matters. The further result is that if a judge disqualifies himself or herself at short notice, it is not always possible to find a replacement judge to hear the matter in order to preserve the allocated hearing date, thereby causing the parties to waste legal costs and the Court to waste resources. 50Exceptions to the apprehension of bias rule have been identified to include necessity, waiver and, "possibly", special circumstances (British American Tobacco Australia Services Limited at [146] and the cases cited thereat). In British American Tobacco Australia Services Limited the High Court rejected an argument that the trial judge's refusal to recuse himself could be justified on the ground of necessity. In doing so, the Court observed that "while the [Dust Diseases] Tribunal is a small one and is currently constituted by three judges, the persons qualified to be members of the Tribunal included judges or Acting Judges of the Supreme and District Court of New South Wales" (at [147]). 51This Court is only constituted by six judges, but, acting judges from the Supreme Court and other qualified persons (for example, retired judges from the Federal Court of Australia) may be appointed to hear and dispose of matters where no other permanent judge is available to do so (see s 11 of the Land and Environment Court Act 1979). Any exception to the apprehended bias rule based on the doctrine of necessity may therefore be difficult to apply. The small number of permanent judges appointed to this Court, however, reinforces the need for recusal applications to be made in a timely manner. 52As neither party sought to raise any of the exceptions to the apprehended bias rule, I do not consider them further.

Conclusion and Orders 53For the reasons given above, the application is upheld. I therefore disqualify myself from participating any further in these proceedings. 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: 16 May 2014