Brown Brothers Waste Contractors Pty Ltd v Pittwater Council

[2015] NSWCA 215

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brown Brothers v Pittwater Council [2015] NSWCA 215

Hearing dates:

28 and 29 August 2014

Date of orders:

24 July 2015

Decision date:

24 July 2015

Before:

McColl JA at [1]; Macfarlan JA at [217]; Tobias AJA at [218]

Decision:

(1) Appeal allowed.

(2) Set aside the orders of Pepper J made on 20 December 2013.

(3) Grant leave to Mr Wayne Brown, Mr Gary Brown and Brown Brothers Waste Contractors Pty Limited to withdraw their pleas  of guilty to the 2011 contempt charges entered on 21 October 2011.

(4) Remit the matter to a judge in the Land and Environment Court other than Pepper J for further determination according to law  in accordance with the decision of this Court.

(5) Reserve the costs of the withdrawal application for determination by the judge who hears the remitted hearing.

(6) Respondent to pay the appellants’ costs of the appeal.

Catchwords:

COURTS – Judges – bias – whether reasonable apprehension of bias or prejudgment – where judge made findings on relevant matters in previous proceedings involving one party – whether fair-minded lay observer might reasonably apprehend judge might not bring impartial and unprejudiced mind to resolution of the question judge s required to decide

COURTS – Judges – where litigant aware of ground for objection on basis of reasonable apprehension of bias or prejudgment during trial but did not object – whether failure to object constitutes waiver

PROCEDURAL FAIRNESS – contempt of court – application to withdraw guilty plea – where basis of application contention that guilty plea  based on incorrect legal advice concerning proper construction of consent orders – where applicants contended it was arguable on proper construction of consent orders they were permitted to engage in conduct on which contempt charges based – whether primary judge denied appellants procedural fairness in finally determining construction of consent orders rather than determining whether case advanced as defence was arguable
CONTEMPT – disobedience of court orders – construction of – whether order ambiguous – whether surrounding circumstances to be taken into account
PROCEDURE – contempt of court – guilty plea – whether withdrawal of guilty pleas should be permitted – reliance on alleged incorrect legal advice – whether guilty pleas made with genuine consciousness of guilt

PROCEDURE – contempt of court – guilty plea – whether withdrawal of guilty pleas should be permitted – whether principles of finality of litigation or avoidance of conflicting decisions should be invoked where their application would have the effect of perpetuating a miscarriage of justice

Legislation Cited:

Environmental Offences and Penalties Act 1989 (NSW)
Environmental Planning And Assessment Act 1979 (NSW)
Environmental Planning and Assessment Amendment Act 1997
Land and Environment Court Act 1979 (NSW).
Environmental Planning Regulation 1994
Pittwater Local Environmental Plan 1993

Cases Cited:

Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Bardsley-Smith v Penrith City Council [2013] NSWCA 200
Boag v R (1994) 73 A Crim R 35
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Brown Bros Waste Contractors Pty Limited v Pittwater Council [2009] NSWLEC 1295
Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 320 ALR 448
Drew v State of New South Wales [2015] NSWCA 159
Environment Protection Authority v Forestry Commission of New South Wales [1997] NSWLEC 204
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Harris v Harris [2000] EWHC 231 (Fam); [2001] 3 FCR 193
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472
Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
House v The King [1936] HCA 40; (1936) 55 CLR 499
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248
Kao, Lee & Yip v Donald Koo Hoi Yan [2009] HKCFA 59; [2009] 5 HKC 36; (2009) 12 HKCFAR 830
Kim v R [2015] NSWCCA 115
Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Lee v New South Wales Crime Commission [2012] NSWCA 262; (2012) 224 Crim R 94
Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268; (2010) 15 BPR 28,563
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234
Meissner v R [1995] HCA 41; (1995) 184 CLR 132
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729
National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Piras v R [2006] NSWCCA 396; (2006) 167 A Crim R 260
Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50
Pittwater Council v Brown Brothers Waste Contractors Pty Limited (No 2) [2009] NSWLEC 210
R v Chiron [1980] 1 NSWLR 218
R v Davies (Court of Criminal Appeal (NSW), 16 December 1993, unrep)
R v Favero [1999] NSWCCA 320
R v Foley [1963] NSWR 1270
R v Forde [1923] 2 KB 400
R v Ganderton (Court of Criminal Appeal (NSW), 17 September 1998, unrep)
R v Liberti (1991) 55 A Crim R 120
R v Middap (1989) 43 A Crim R 362
R v Sagiv (1986) 22 A Crim R 73
R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533
R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310
Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Rogers v Wentworth (Court of Appeal (NSW), 18 April 1988, unrep)
Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34
Rothner v The Queen [2011] NSWCCA 207
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; (2006) 150 FCR 110
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Walker Corporation Limited v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1
Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170; (2014) 86 NSWLR 674
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
Zhu v Treasurer of the State of New South Wales [2004] HCA 56; (2004) 218 CLR 530

Category:

Principal judgment

Parties:

Brown Brothers Waste Contractors Pty Ltd, Wayne Gordon Brown, Gary Neil Brown (Appellants)
Pittwater Council (Respondent)

Representation:

Counsel: Mr P Tomasetti SC with Ms V McWilliam (Appellants)
Mr T Howard SC with Ms N Zerial (Respondent)

Solicitors: DG Briggs & Associates (Appellants)
King & Wood Mallesons (Respondent)

File Number(s):

2014/18722

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2013] NSWLEC 219

Date of Decision:

20 December 2013

Before:

Pepper J

File Number(s):

40612 of 2007, 40763 of 2011 and 40764 of 2011

Brown Bros v Pittwater Council

HEADNOTE

[This

Brown Brothers Waste Contractors Pty Limited (“BBWC”) operates a waste skip business on land at all material times zoned Light Industrial 4(b1) under the Pittwater Local Environmental Plan 1993. Wayne Gordon Brown and Gary Neil Brown (“Messrs Brown”), are directors of BBWC. In 2011 the respondent, Pittwater Council (the “Council”), charged each with contempt of court in respect of their alleged activities in undertaking the business.

In 1995 the Council granted consent allowing use of the land as a “depot for the storage of trucks and waste containers” provided putrescible waste was not collected, stored, transported or brought to the site (the “1995 Consent”). In 2007 the Council commenced civil enforcement proceedings seeking a declaration that BBWC was using the property contrary to the 1995 Consent and for the purpose of a waste management facility without first having obtained development consent. The 2007 proceedings were resolved by consent orders (the “2007 Consent Orders”).

The 2007 Consent Orders restrained BBWC from using the rear part of the land “for the purposes of a waste management facility or for the storage, stockpiling of any waste or things other than the storage of trucks and waste containers” (Order 1) and required them to remove all waste from unsealed areas of the land (Order 10(a)) and refrain from leaving any waste or other materials or things other than empty skip bins and vehicles on unsealed areas of the land (Order 11(a)).

In 2009 the Council filed a notice of motion and statement of charge of contempt alleging that from 28 February 2009 BBWC had committed contempt of court by acting in contravention of Order 1 of the 2007 Consent Orders. BBWC pleaded guilty to the 2009 contempt charge and was convicted, fined and ordered to pay the Council’s costs by Pepper J.

During the period 2010 – 2011, BBWC, on occasions, allowed skip bins and waste bins containing non-putrescible building waste to be stored overnight on the land. Both Messrs Brown were seen on the land on some of the days those bins were also seen there. The Council again charged BBWC and also the Messrs Brown with contempt of court. BBWC was charged with contravening Order 1 of the 2007 Consent Orders. Messrs Brown were each charged with contempt of court as a director of BBWC in that “with knowledge of [the 2007 Consent Orders]” each “engaged in conduct which tended to undermine, frustrate and interfere with Order No 1 of the Orders”. On 21 October 2011 each appellant pleaded guilty to the charges. On 1 February 2012 each sought to withdraw their guilty pleas, contending they were made on the basis of incorrect legal advice, and that they were now aware that they had a viable defence to the contempt charges.

The appellants’ essential contention was that they pleaded guilty on the basis of incorrect legal advice to the effect that on the proper construction of the 2007 Consent Orders they were not permitted to store non-putrescible matter in skip bins on the land. They contended it was arguable that on the proper construction of those orders, alone and/or taken in conjunction with the 1995 Consent they were permitted to engage in such conduct, rather than, as the Council contended, only to store empty skip bins on the land.

Pepper J refused to grant the appellants leave to withdraw the guilty pleas, concluding that they were attributable to a genuine consciousness of guilt and that there would be no miscarriage of justice if leave was refused; further, that it would undermine the public interest in the finality of litigation if the Court were to go behind the making of the 2007 Consent Orders and also jeopardise public confidence in the administration of justice because of the potential for “the scandal of conflicting decisions”. That scandal was based on the premise that if the appellants were permitted to withdraw their guilty pleas on the basis the 2007 Consent Orders permitted the acts giving rise to the 2011 contempt proceedings, that would conflict with BBWC’s conviction in 2009 for breach of the same consent order in respect of the same acts.

The appellants appealed from Pepper J’s decision by leave granted pursuant to s 58(3)(a) of the Land and Environment Court Act 1979 (NSW).

The following issues arose on appeal:

(i)   whether, by reason of the primary judge having made adverse findings as to Mr Wayne Brown’s credit in the 2009 proceedings, a fair-minded lay observer might reasonably apprehend bias on the part of the primary judge but, even if that were so, whether the appellants had waived any right to object;

(ii)   whether the primary judge denied the appellants procedural fairness in finally determining the construction of the 2007 Consent Orders rather than determining whether the construction of those orders for which the appellants contended was arguable;

(iii)   whether the primary judge erred in determining that the 2007 Consent Orders did not arguably permit, upon their proper construction, the storage of non-putrescible waste on the property;

(iv)   whether the primary judge erred in determining that the appellants’ guilty pleas may be characterised as genuine admissions of guilt by persons in possession of all the relevant facts and were not the result of reliance on imprudent or inappropriate legal advice; and

(v)   whether the primary judge erred in determining that no miscarriage of justice would occur if she refused leave to withdraw the guilty pleas.

Held by McColl JA, (Macfarlan JA and Tobias AJA agreeing) allowing the appeal:

First issue

1.   Prima facie, the primary judge ought to have recused herself from hearing the withdrawal application as the logical connection between the views expressed by her Honour in the 2009 contempt judgment and the matters raised for decision in the withdrawal application was manifest. However, those facts should have been apparent to those appearing for the appellants once they were aware the withdrawal application was listed before her Honour or, at least, during the hearing, such that they waived their right to complain about that matter on appeal by failing to object to her Honour continuing to hear the withdrawal application. (at [141], [143])

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Re Henry; JL v Secretary Department of Family and Community Services [2015] NSWCA 89 applied.

Second issue

2.   The primary judge did not deny the appellants procedural fairness as it was necessary in order to construe the 2007 Consent Orders to determine whether the appellants had an arguable defence to the 2011 contempt charges. (at [154] – [155])

Third issue

3.   It was arguable that Order 1 of the 2007 Consent Orders was qualified by the express provisions of Orders 10(a) and 11(a) such that the proscription in Order 1 applied to the unsealed areas of the land rather than to its entirety, and that skip bins containing waste materials might therefore be placed on sealed areas of the land, a conclusion reinforced if one had regard to the terms of the 1995 Consent. (at [174] – [175])

Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58; Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337; Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 applied.

Fourth issue

4.   The appellants established that that their guilty pleas were not attributable to a consciousness of guilt. (at [205])

5.   The primary judge erred in failing to take into account the appellants’ solicitor’s unchallenged evidence that he had not considered there was an issue about their guilt until after he had advised them to enter their guilty plea. Further, it was not open to her Honour to conclude that the appellants pleaded guilty knowing the 2007 Consent Orders contained a potential ambiguity as to the scope of Order 1, rather than in reliance upon their solicitor’s incorrect legal advice. (at [201] – [202])

Fifth issue

6.   The principles of finality of litigation and avoidance of conflicting decisions should not be invoked in circumstances where their application could perpetuate a miscarriage of justice. The public interest in securing convictions is outweighed by other relevant considerations. (at [208] – [209])

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 referred to.

Judgment

Introduction

Legislative framework

Statement of the case

The 1995 consent

The 2007 civil enforcement proceedings

The 2008 development application

The 2009 contempt proceedings

The 2011 contempt proceedings

Application to withdraw guilty pleas

Primary Judgment

Issues on Appeal

Appellants’ Submissions

Ground 1 – denial of procedural fairness

Ground 2 – apprehended bias

Ground 3 – miscarriage of discretion.

Ground 4 – factual findings after significant delay.

Ground 5 – miscarriage of justice.

The Council’s submissions

Ground 1: denial of procedural fairness.

Ground 2: apprehended bias.

Ground 3: miscarriage of discretion.

Ground 4 – factual findings after significant delay

Ground 5: miscarriage of justice

Consideration

Apprehended bias

Denial of procedural fairness

Withdrawal of a guilty plea

Construction of consent orders

Construction of the 2007 Consent Orders

Consciousness of guilt

Finality of litigation

Conclusion

Orders

Introduction

1. McCOLL JA: The appellants, Brown Brothers Waste Contractors Pty Limited (“BBWC”), Wayne Gordon Brown and Gary Neil Brown (hereafter “Messrs Brown” unless context dictates otherwise) operate a waste skip business (the “business”) on the land comprising Lot 23 in DP5497, also known as 6 Polo Avenue, Mona Vale (the “land”). The land was at all material times zoned Light Industrial 4(b1) under the Pittwater Local Environmental Plan 1993 (the “LEP”). In 2011 the respondent, Pittwater Council (the “Council”), charged each with contempt of court in respect of their alleged activities in undertaking the business. [1] On 21 October 2011 each appellant pleaded guilty to the 2011 contempt charges. On 1 February 2012 each sought to withdraw that guilty plea, contending it was made on the basis of incorrect legal advice, and that they were now aware that they had a viable defence to the charges. [2] Pepper J refused to grant them leave to withdraw the pleas of guilty concluding that their guilty pleas were attributable to a genuine consciousness of guilt and that there would be no miscarriage of justice if leave was refused. [3]

   1. The “2011 contempt charges”.

   2. Henceforth the “withdrawal application”.

   3. Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 4); Pittwater Council v Wayne Gordon Brown (No 2); Pittwater Council v Gary Neil Brown (No 2) [2013] NSWLEC 219 (at [153] – [154]).

2. The appellants appeal from that decision by leave granted pursuant to s 58(3)(a) of the Land and Environment Court Act 1979 (NSW) (the “LEC Act”) on 28 March 2014.

3. The appellants’ essential contention below was that they pleaded guilty on the basis of incorrect legal advice to the effect that on the proper construction of consent orders made on 9 August 2007, [4] they were not permitted to store non-putrescible matter in skip bins on the land. They contended it was arguable that on the proper construction of those orders, alone and/or taken in conjunction with the development consent pursuant to which they conducted the business, [5] they were, in fact, permitted to engage in such conduct, rather than, as the Council contended, only to store empty skip bins on the land.

   4. The “2007 Consent Orders”.

   5. The “1995 Consent”.

4. For the reasons that follow I am of the view that the appellants’ contentions should be accepted, that each should be granted leave to withdraw its or his plea of guilty and the matter should be remitted to the Land and Environment Court for further determination according to law.

Legislative framework

5. At the time development consent 95/120 (“the 1995 Consent”) pursuant to which the appellants used the land in question was granted, the following legislation and LEP relevantly provided as set out below.

6. Part 4 (Environmental Planning Control) of the Environmental Planning And Assessment Act 1979 (NSW) (the “EPAA”) provided:

“76(2)   Subject to this Act, where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless:

(a)   that consent has been obtained and is in force under this Act; and

(b)   the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.”

7. Section 123(1) of the EPAA provided that “[a]ny person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.” Where the Court was satisfied that a breach of the EPAA had been committed, it could “make such order as it [thought] fit to remedy or restrain the breach”, including, where the breach comprised a use of any land, restraining that use. [6]

   6. EPAA, s 124(1), (2).

8. Clause 49(1) of the Environmental Planning and Assessment Regulation 1994 (NSW) (the “EPA Regulation”) declared development described in Schedule 3 to be “designated development” for the purposes of the EPAA.

9. Clause 49(2) provided:

“Schedule 3, as in force when a development application is made, continues to apply to and in respect of the development application regardless of any subsequent substitution or amendment of that Schedule, and the application is unaffected by any such substitution or amendment.”

10. Schedule 3 described “development for the undermentioned purposes or development of the undermentioned types” to be “designated development”. Such development relevantly included the following:

“Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle. recover, use or reuse material from waste and that:

(1) dispose (by landfilling, incinerating, storing, placing or other means) of solid or liquid waste:

(a) that includes any substance classified in the Australian Dangerous Goods Code or medical. cytotoxic or quarantine waste; or

(b) that comprises more than 100,000 tonnes of ‘clean fill’ (such as soil. sand, gravel, bricks or other excavated or hard material) in a manner that, in the opinion of the consent authority, is likely to cause significant impacts on drainage or flooding; or

(c) that comprises more than 1,000 tonnes per annum of sludge or effluent; or

(d) that comprises more than 200 tonnes per annum of other waste material; or

(2) sort, consolidate or temporarily store waste at transfer stations or materials recycling facilities for transfer to another site for final disposal, permanent storage, reprocessing, recycling, use or reuse and:

(a) handle substances classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste; or

(b) have an intended handling capacity of more than 10,000 tonnes per annum of waste containing food or livestock. Agricultural or food processing industries waste or similar substances; or

(c) have an intended handling capacity of more than 30,000 tonnes per annum of waste such as glass, plastic, paper, wood, metal, rubber or building demolition material; or

(3) purify, recover, reprocess or process (including by mulching or composting) more than 5,000 tonnes per annum of organic solid or liquid waste organic materials, including food waste, oil. sludge, pulp. garden refuse, sawdust or wood chips; or

(4) are located:

(a) in or within 100 metres of a natural waterbody, wetlands. coastal dune fields or an environmentally sensitive area …”. [7]

7. The full stops which appear where one might expect commas, are as per the original; at the time the 2007 Consent Orders were agreed, the description of “Waste management facilities” was found in cl 32, Sch 3 of the Environmental Planning and Assessment Regulation 2000 (NSW). It was relevantly identical to the 1994 version, save for the numbering style, the position of the pronoun “that” and the underlined passages.

11. The land was within 100 metres of a natural waterbody being a creek running through its rear portion.

Statement of the case

12. The history of the matter was largely uncontroversial. Prior to the withdrawal application, it appears the parties had been working on a proposed Statement of Agreed Facts (“SAF”), presumably for use in the sentencing hearing consequent upon the guilty pleas. A copy of such a document appears in the Blue Appeal Book bearing what appears to be a court stamp indicating it was filed on 2 February 2012. Its status in the proceedings was not entirely clear as it was not apparent it had been signed by the appellants’ solicitors. However Mr Tomasetti of Senior Counsel who appeared with Ms V McWilliam on appeal and in the proceedings below, did not seek to argue that the facts as recorded were relevantly incorrect. The primary judge clearly regarded it as a document from which she could draw the background facts referred to below. [8]

    8. Primary judgment (at [4]).

13. Messrs Wayne and Gary Brown have been carrying on the business since approximately 1989. The business generally involves the delivery of empty skip bins to commercial or domestic properties, the collection of the skip bins when they have been filled with waste by the occupiers of the properties, the transportation of the waste to waste facilities and the disposal of the waste for commercial reward. They have used the land pursuant to the 1995 Consent as part of the business since at least June 1995. [9]

    9. Primary judgment (at [5] – [7]).

14. The Messrs Brown first traded under the registered business names of “Brown Brothers Rubbish Removals” and “Brown Brothers Waste Contractors” between 20 February 1991 and 26 February 1999. The business has been carried on under BBWC’s name since its incorporation on 26 February 1999. [10]

    10. Primary judgment (at [8] – [9].

15. BBWC operates 11 trucks with nine full-time drivers. All trucks in the BBWC fleet are configured to carry skip bins. The bins vary in size from 2m3 to 20m3. It owns approximately 350 bins. [11]

    11. Primary judgment (at [13]).

16. BBWC operates the business on the northern side of the creek referred to above. The property is open and contains a demountable shed which operates as the office for the business. It is hard paved in concrete and is graded and drained to an approved stormwater drainage system. [12]

    12. Primary judgment (at [14]).

17. The land is adjoined by various industrial and commercial buildings, some of which are in close proximity to its boundary. [13]

    13. Primary judgment (at [15]).

18. The 2011 contempt charges, in substance, alleged that BBWC had breached the terms of the 2007 Court Order and in particular Order 1, [14] by using the land “for the purpose of a waste management facility and/or for the storage, sorting, and/or stockpiling of materials or things other than the storage of trucks and waste containers”. Each of the Messrs Brown was charged with contempt of court as directors of BBWC in that each, with knowledge of the 2007 Consent Orders, engaged “in conduct which tended to undermine, frustrate and interfere with Order No 1 of the [2007] Orders.” In each charge, BBWC and the Messrs Browns’ contempt was alleged to be “contumacious, or alternatively wilful.”

    14. See further at [23] below.

19. The Council had also taken contempt proceedings against BBWC in 2009. [15] BBWC had pleaded guilty to the 2009 contempt charges and was convicted and sentenced by Pepper J. [16]

    15. The “2009 contempt charges”.

    16. Pittwater Council v Brown Brothers Waste Contractors Pty Limited (No 2) [2009] NSWLEC 210.

The 1995 Consent

20. The 1995 Consent was granted for the use of the land as “a depot for the storage of trucks and waste containers” subject to conditions, relevantly as follows:

“1. Development being generally in accordance with plans numbered 01, dated 10/5/95, submitted 17/5/95, as modified by any conditions of this Consent.

2. The use not commencing until such time as the requirements of the conditions of this consent have been carried out to Council’s reasonable satisfaction as signified in writing.

3. All parking areas on plans granted consent herein being used solely for this purpose.

...

8. The proposed carparking, turning area, truck carparking area, skip storage area and wheeled container storage area shall be hard surfaced in accordance with the minimum standards of construction contained within Appendix 1 of Development Control Plan No. 2. Details of the final design of the hard surfacing are to be provided to Council and be to Council’s reasonable satisfaction prior to the commencement of use of the site. Implementation of the hard surfacing of the site shall be required to be undertaken within 60 days of the date of this development consent.

9. No more than six trucks shall be stored on site at any one time.

10. Putrescible waste matter is not to be collected, stored, transported or bought [sic, brought] to the site within any of the vehicles or skips or containers stored on the site at any time.

...

12. There shall be no washing down of vehicles, waste containers, skips or trucks on the subject site at any time. Details are to be provided to Council indicating where any washing down of vehicles will take place.

13. No signs, advertising structures or lighting structures are to be erected or installed without the prior consent of Council.

14. Any compactor trucks stored at the depot shall not at any stage be stored whilst containing any waste materials ...”(Emphasis added.)

The 2007 civil enforcement proceedings

21. On 29 June 2007 the Council commenced civil enforcement proceedings in the Land and Environment Court seeking a declaration that BBWC was carrying out, causing, permitting, authorising or suffering the carrying out of a use of the property contrary to the 1995 Consent and seeking consequential orders that BBWC comply with particular conditions of the 1995 Consent. [17] There was no copy of the original application in the papers. However it is apparent from the amendment to which I refer below that, as commenced, the declaratory relief related to particular complaints concerning BBWC’s failure to carry out works specified in conditions of the 1995 Consent. The application sought an order that BBWC comply with those conditions.

    17. The “2007 proceedings”; see primary judgment (at [19]).

22. On 3 August 2007 the Council amended its application (the “Amended Application”) to seek an additional declaration that BBWC was “using the Property for the purpose of a waste management facility for the storage, sorting and stockpiling of materials or things other than empty skip bins and vehicles without first having obtained development consent” and asserting that it was, accordingly, in breach of s 76A(1) of the EPAA. [18] It sought an order that BBWC be restrained from so using the land. [19]

    18. Section 76A(1) was inserted into the EPAA in 1997 when a new Part 4 (Development Assessment) was inserted by the Environmental Planning and Assessment Amendment Act 1997, Sch 1, cl 32. It was in substance in the terms of s 76(2) as in force when the 1995 Consent was granted.

    19. Primary judgment (at [20]).

23. The 2007 proceedings were resolved consensually. As the primary judge explained:

“[22] On 9 August 2007, by way of resolution of the Council’s claim against BBWC in this Court, the Court made the 2007 Consent Orders.

[23] The terms of consent orders 1 and 2 were as follows:

1. The respondent [BBWC] be restrained from using the rear of 6 Polo Avenue Mona Vale (the area the subject of consent 95/120 dated 30/06/95 ‘the Development Consent’) (‘the premises’) for the purpose of a waste management facility or for the storage*, stockpiling of any waste** or things other than the storage of trucks and waste containers.

2. Order 1 be suspended until 28 February 2008.

[24] Orders 10 and 11 of the consent orders stated:

10. By 31 August 2007, the Respondent to:-

(a) remove all waste materials and stockpiles of material from unsealed areas of the premises, and

(b) erect silt and sediment fences described in the Environmental Management Plan prepared by Paul Clark and dated 26 June 2007.

11. On and from 1 September 2007, the Respondent to conduct its activities on the premises in a manner which ensures:

(a) that any waste materials or other materials or things other than empty skip bins and vehicles are not placed on unsealed areas on the premises;

(b) that it implements and maintains the measures referred to in paragraph 9; and

(c) the maintenance of the silt and sediment fences referred to in paragraph 10(b).” (Emphasis added.)

* The word “sorting” should have appeared here.

** “Waste” should have read “materials”.

According to the Council, the 2007 Consent Orders were made by Talbot J.

24. The primary judge also set out the terms of a Statement signed by both parties and filed in accordance with paragraph 29(b) of the Practice Note for Class 4 proceedings in force at the time the 2007 Consent Orders were made. [20] It listed the matters “said to justify the making of the proposed final [consent] orders” as follows:

    20. The “2007 Statement”.

“1 The Respondent was granted Development Consent No 95/120 by the Applicant on 30 June 1995. The Development Consent relates to premises at 6 Polo Avenue, Mona Vale and described the approved development as ‘use of the site as a depot for the storage of trucks and waste containers’.

2 The Respondent is using the Premises for the purpose permitted by the Consent and for purposes not permitted by the Consent and for purposes not permitted by the Development Consent, namely as a waste management facility.

3 The Respondent has also failed to comply with specific conditions of the Development Consent.

4 Carrying out development otherwise than in accordance with a Development Consent is a breach of the Environmental Planning and Assessment Act 1979.

5 Since the Class 4 proceedings were commenced in this matter, the Respondent has agreed to take a number of steps to comply with the Development Consent and to ensure that pollution from the Premises ceases. The Respondent also proposes to lodge applications with the Applicant to regularise building works undertaken on the site without a construction certificate, obtain a construction certificate for works required to be carried out to conform to the consent, to modify the consent, and to seek an additional consent for use of the Premises as a waste management facility.

6 The Respondent and Applicant have agreed on a number of further steps that must be taken and a timetable for these steps to occur in order to ensure that the activities at the Premises are conducted lawfully and to eliminate pollution from the property.

7 The making of the Consent Orders will resolve the proceedings and thus remove the need to proceed to a final hearing of the matter.

8 The Respondent’s solicitor has advised the Respondent of the consequences of the Consent Orders being made, and the consequences of not complying with the Development Consent.

9 The making of the Consent Orders will thus facilitate the just, quick and cheap resolution of these proceedings.” (Emphasis added.) [21]

21. Primary judgment (at [25]).

25. BBWC was represented by solicitors during the 2007 proceedings, including when it agreed to the making of the 2007 Consent Orders. [22]

    22. Primary judgment (at [26]).

26. As the primary judge recorded, before the 2007 Consent Orders were signed there was a meeting at the land on 8 August 2007 between the Messrs Brown, BBWC’s solicitor, Mr Anthony Hudson, and a consultant town planner, Mr Laurie Winnacott. A file note prepared by Mr Hudson about the conference noted:

“4. We discussed different experts and then we went through all the particular draft orders and made some amendments and agreed on certain times. The times are flexible because it was indicated that we wanted to make sure that we got a set of consent orders to get the Council off their back, get out of court and then get on with the real business of getting a development consent.

5. I indicated to Wayne that it was important that he understood the commitment that he was doing and the consent orders. They're orders of the court and he can be heavily fined, ultimately there could be imprisonment and the removal of assets from his company if he and his brother did not comply with the orders.

6. Laurie agreed that the business had changed and that there was clearly a breach of the consent and they needed consent for the activities that were occurring on the site now.” [23]

23. Primary judgment (at [27]).

The 2008 development application

27. On 3 June 2008 BBWC lodged a development application with the Council, describing the intended use of the land as a “waste handling and recycling depot including construction of recycling shed and office and amenities building, driveway and parking area, associated property works, piping of open drainage channel”. [24]

    24. The “2008 DA”; primary judgment (at [29]).

28. On 26 March 2009 a report to the Council’s Development Unit recommended refusal of the 2008 DA on the basis, inter alia, that the supporting documentation did not clearly describe the way the proposal would operate in practice, and that it would present a significant environmental impact to the locality. [25]

    25. Primary judgment (at [30]).

29. On 31 March 2009 BBWC filed an application in Class 1 of the Land and Environment Court’s jurisdiction appealing the deemed refusal of the 2008 DA. On 20 April 2009 the Council refused the 2008 DA. [26]

    26. Primary judgment (at [32]).

30. On 2 July 2009 Commissioner Bly upheld BBWC’s appeal subject to agreed conditions. [27] The proposal was described iin the 2008 DA as involving:

“[A] fleet of trucks that deliver and collect different sized skips/bins to and from various sites to facilitate the recycling and disposal of waste including demolition, excavation and general waste materials. Between 20 and 40 loads of waste will be processed each day. Hours of operation are to be Monday to Friday 6am to 6pm and Saturday 6am to 2pm.” [28]

27. Brown Bros Waste Contractors Pty Limited v Pittwater Council [2009] NSWLEC 1295 (the “Waste Handling Judgment”).

28. The Waste Handling Judgment (at [1]).

31. Commissioner Bly ordered, inter alia, that:

“2. The development application for the construction of an industrial type building at the rear of 6 Polo Ave, Mona Vale and for the use of this building and the adjacent part of the site for a waste handling and recycling facility is determined by the granting of development consent subject to the conditions in Annex A hereto (Exhibit 10) including the Operational and Environmental Management Plan and Procedures (Exhibit C).”

32. The building referred to in Bly C’s order had not been constructed at the time of the withdrawal application.

The 2009 contempt proceedings

33. In the period between 28 February 2008 and 1 April 2009, BBWC continued to use the property for purposes of a waste management facility and for the storage, sorting and stockpiling of waste materials. [29]

    29. Primary judgment (at [28]); this statement appears to be based both on facts agreed between BBWC and the Council in the 2009 contempt proceedings (see 2009 contempt judgment (at [5] – [6]) and the SAF (at [23]).

34. On 24 February 2009 BBWC filed a notice of motion seeking to vary Order 2 of the 2007 Consent Orders by suspending it until 28 February 2010. [30]

    30. Primary judgment (at [34]).

35. On 26 March 2009 the Council filed a notice of motion and statement of charge of contempt, [31] alleging that from 28 February 2009 BBWC had committed contempt of court by acting in contravention of Order 1 of the 2007 Consent Orders.

    31. The “2009 contempt proceedings”.

36. Lloyd J dismissed BBWC’s motion to vary the 2007 Consent Orders on 17 April 2009 on the basis that Orders 1 and 2 had to be read together and, as such, amounted to a final determination of the relief claimed, such that the court had no jurisdiction to vary them. [32] On the same day BBWC pleaded guilty to the 2009 contempt charge. [33]

    32. Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50 (at [30] – [31]).

    33. Primary judgment (at [39]).

33. As I have said, Pepper J presided over the sentencing hearing in respect of the guilty plea on 22 June 2009.

34. It is apparent that an issue arose in the course of those proceedings as to the construction of the 2007 Consent Orders. The primary judge set out the competing contentions of counsel for the Council and BBWC. Relevantly the latter (who was not the Counsel who appeared in the appeal) conceded that:

“[I]t is accepted that it is a breach of the [2007 contempt] order to bring onto the site bins with waste within them and leave them at the site overnight as the case may be … So that in terms of the order itself it distinguishes between containers and waste and whilst there is potentially some ambiguity in the terms of the development consent, but in terms of the order itself the advice I’ve given to the respondent and the respondent accepts is that waste is material, material in a container and that it is a breach of the order to bring on to the site waste in a waste container giving rise to its storage.” [34]

34. Primary judgment (at [42]).

39. As a result, the primary judge said, the construction issue fell away. [35]

    35. Primary judgment (at [43]).

40. In the course of the 2009 contempt judgment Pepper J noted that, although BBWC had pleaded guilty, Mr Wayne Brown had given evidence at the sentencing hearing that until the day of the sentencing hearing “he believed that he could lawfully bring full bins of waste onto the Premises … that this belief came from ambiguity with the terms of the original DA and the Court order”. [36] Her Honour added that Mr Wayne Brown also stated that his solicitor told him that, pursuant to the 1995 Consent, BBWC could store containers on site with waste in them, given the ambiguity of Order 1 of the 2007 Consent Orders. He was not able to identify the solicitor who had given him this advice. [37]

    36. Primary judgment (at [47]), referring to the 2009 contempt judgment (at [57]); see the extract of Mr Wayne Brown’s evidence: primary judgment (at [44]).

    37. 2009 contempt judgment (at [60]).

41. Pepper J did not accept this evidence, on the basis that the details provided were too vague to be credible, concluding that any ambiguity in the order was the “exclusive product of Mr Brown’s state of mind, which he then sought to take advantage of.” [38] Her Honour also found beyond reasonable doubt that Mr Brown “chose to continue to receive full skip bins and to store them on the Premises with the knowledge that he was possibly breaching the Court order and with the knowledge that the Council was of the view that he was breaching the Court order.” [39]

    38. 2009 contempt judgment (at [67]).

    39. 2009 contempt judgment (at [69]).

42. On 9 December 2009, her Honour convicted BBWC of the charge of contempt of court as particularised in the statement of charge, imposed a fine of $45,000 and ordered BBWC to pay the Council’s costs up to the date of hearing. [40]

    40. Pittwater Council v Brown Brothers Waste Contractors Pty Limited (No 2) [2009] NSWLEC 210 (the “2009 contempt judgment”) (at [143]).

The 2011 contempt proceedings

43. During the period from 12 March 2010 to 24 June 2011 BBWC, on occasions, allowed skip bins and waste bins containing non-putrescible building waste to be stored overnight on the land. Both Messrs Brown were seen on the land on some of the days those bins were seen there. [41]

    41. Primary judgment (at [50] – [54]); SAF (at [38], [42] – [43]).

44. On 20 July 2011 the Council’s solicitors wrote to BBWC and Messrs Brown, alleging the land was being used in a way which constituted breach of the 2007 Consent Orders and, hence, contempt of court. It asked that BBWC give a written undertaking immediately to cease such use of the land. [42]

    42. Primary judgment (at [55]).

45. On 26 July 2011 BBWC gave the Council a written undertaking signed by each of its directors that the activity would cease. [43]

    43. Primary judgment (at [56]).

46. On 2 September 2011 a skip bin containing non-putrescible waste was observed on a truck on the property. [44]

    44. Primary judgment (at [57]); SAF (at [46]).

47. On the same day the Council filed a notice of motion and statement of charge for contempt against BBWC and a summons and a statement of charge commencing proceedings for contempt against each of Mr Wayne Brown and Mr Gary Brown. [45] As I have said, on 21 October 2011 each of the appellants entered guilty pleas to the contempt charges, which pleas they subsequently sought to withdraw.

    45. The “2011 contempt proceedings”.

48. The statement of charge against BBWC recited Order 1 of the 2007 Consent Orders, then alleged that between about 12 March 2010 and about 24 June 2011, [46] BBWC had “contravened Order No 1 on numerous occasions in that it used … the land … for the purpose of a waste management facility and/or for the storage, sorting, and/or stockpiling of materials or things other than the storage of trucks and waste containers”. Many such occasions were particularised.

    46. The “relevant period”.

49. The statement of charge against Messrs Brown charged each with contempt of court as a director of BBWC in that “with knowledge of [the 2007 Consent Orders]” each “engaged in conduct which tended to undermine, frustrate and interfere with Order No 1 of the Orders”. Order No 1 was reproduced and followed by particulars which, after reciting each respondent’s role as director of BBWC, set out the occasions on which BBWC was alleged to have contravened Order No 1. Each of the Messrs Brown was alleged to have been the directing mind and will of BBWC and to have actively managed BBWC’s business throughout the relevant period with knowledge of the existence and effect of Order No 1. Each was also alleged to have “used the premises, or caused or permitted the use of the premises by BBWC, for the purpose of a waste management facility and/or for the storage, sorting, and/or stockpiling of materials or things other than the storage of trucks and waste containers, in contravention of Order No 1”, alternatively to have “failed to prevent the said use of the premises by BBWC in contravention of Order No 1”. Finally, the contempt was alleged to be “contumacious, or, alternatively, wilful”. The Council sought an order that each appellant be punished for contempt by sequestration of the land or fine or both.

50. It was not in dispute that throughout the relevant period, Messrs Brown constituted the directing mind and will of BBWC, were actively involved in managing the business BBWC carried out at the property, and had knowledge of the 2007 Consent Orders. [47]

    47. Primary judgment (at [58] – [59]); SAF (at [47] – [48]).

51. It is unclear how the SAF would have been used in the sentencing proceedings had the guilty pleas proceeded. What is clear is that despite the ambit of the contempt charges which referred to “the storage, sorting, and/or stockpiling of materials or things other than the storage of trucks and waste containers”, the SAF only referred to twenty occasions in 2010 and 2011 on which “skip bins containing non-putrescible waste had been observed at the site”. The waste bins containing such waste were alleged to have been on the site overnight on only four of these occasions. There was no admission as to “sorting, and/or stockpiling of materials”.

Application to withdraw guilty pleas

52. By amended notice of motion filed on 3 February 2012, the appellants sought the following orders:

“2.   Leave be granted to the Respondents to withdraw the pleas of guilt entered on 22 October 2011.

3.   That the orders of 19 August 2007 be varied so as to provide:

‘The respondents be restrained from using the rear of 6 Polo Avenue Mona Vale … for any purpose other than that permitted by the [1995 Consent] or any other lawful purpose under the Environment Planning and Assessment Act 1979 as amended.’

4.   Leave be granted to the parties to approach the Registrar for a hearing date for the question of law, namely:

‘Whether [the 1995 Consent] permits the use of the site at the rear of 6 Polo Avenue Mona Vale (‘site’) as a depot for the storage of trucks and waste containers subject to conditions (including conditions 10 and 14) that non putrescible waste matter may be collected, stored, transported and brought to the site within any vehicles skips or containers stored on the site at any time.’”

53. The primary judge said that the basis of the application to withdraw the guilty pleas was:

“... that the development consent 95/120 on its true construction permits the use of the site as depot [sic, a depot] for the storage of trucks and waste containers subject to conditions including conditions 10 and 14 which make clear that non putrescible waste matter may be collected, stored, transported and brought to the site within any vehicles, skips or containers stored on the site at any time.

Furthermore the only other relevant restriction in the development consent on the storage of waste materials is that the compactor trucks stored at the depot shall not at any stage be stored whilst containing waste materials.” (Emphasis in original.) [48]

48. Primary judgment (at [70]); see also (at [103]) referred to at [70] below.

54. Each individual appellant gave evidence in support of the application to withdraw the guilty pleas, as, too, did their solicitor, Mr Damien Briggs. He had not represented BBWC in the 2009 contempt proceedings.

55. Mr Briggs gave evidence that on 22 October 2011 he had been instructed to enter an early plea in response to the statement of charge against BBWC and the summons against Messrs Brown. He said his instructions were based to a large extent upon the 2009 contempt judgment and affidavits filed by the Council, from its compliance officer, and two adjoining land holders. In his first affidavit, he said that the appellants were also conscious of the potential cost consequences of a contested hearing in circumstances where the 2009 contempt proceedings had led to a penalty of $45,000 against BBWC and legal costs to the Council in the sum of $105,000.

56. Mr Briggs said that he had thereafter undertaken extensive investigations in respect to the activities upon the land as a result of which he concluded that there was no evidence, and it was not alleged, that putrescible waste had been collected, stored, transported or brought to the site. He annexed a copy of his letter to the Council’s solicitors of 1 February 2012 advising that his firm was instructed to withdraw the pleas of guilty on the basis that the 1995 Consent, on its true construction, permitted the use of the site as a depot for storage of trucks and waste containers subject to conditions which made it appear that non-putrescible waste matter may be collected, stored, transported and brought to the site within any vehicles, skips or containers stored upon it at any time.

57. In his second affidavit Mr Briggs referred to his statement in his first affidavit concerning his instructions as based on the 2009 contempt judgment. He said that he had not represented BBWC in those proceedings, nor formally commenced to act in the 2011 contempt proceedings until September 2011 although he had provided some preliminary advice to the appellants in July and August of that year. He also gave evidence about steps he had taken after he was formally retained which included reading the 2009 contempt judgment. On the basis of his reading of that document and the Council’s affidavit evidence supporting the 2011 contempt charges, he formed the view that the appellants had carried out the same activity the subject of consideration in the 2009 contempt proceedings. Accordingly, he gave his clients advice “that there was really no alternative but a plea of guilty”. He said it was not until he conferred with senior counsel on 1 February 2012 that he looked at the 1995 Consent on which occasion the question first arose as to whether it authorised the keeping of waste bins containing building (i.e. non-putrescible) waste overnight on the land.

58. Mr Briggs agreed in cross-examination that he was aware when he read the 2009 contempt judgment that “there was an issue insofar as Mr Wayne Brown was concerned as to the ambiguity concerning the terms of the 1995 development consent”. He said he understood that interpretation was wrong (presumably by reference to the 2009 contempt judgment) but did nothing to examine it prior to 1 February 2012.

59. Mr Briggs was recalled for further cross-examination after he had produced documents pursuant to a subpoena from the Council. He accepted that there was no written or electronic record of the advice he had given the appellants in October 2011 to plead guilty. In the course of that cross-examination, Mr Briggs agreed with a question from Mr Howard that the appellants had “entered pleas of guilty in respect of the contempt charges, based upon advice [he] told them … that there was really no alternative but a plea of guilty in circumstances where he had senior counsel retained who actually entered the pleas, but where he didn’t give any advice in relation to the pleas”.

60. Mr Wayne Brown gave evidence in support of the withdrawal application that BBWC had relied on legal advice both in agreeing to the 2007 Consent Orders and, too, in pleading guilty to the 2009 contempt charge. He said that when the 2011 contempt charges were brought, he understood they “concerned much the same conduct that we had been charged with and punished for in 2009, in particular, bringing waste” onto the land. He said Mr Briggs had advised him to the latter effect and that:

“Based on the material that I looked at from [the Council] and my advice from Mr Briggs I believed that I had no defence in these latest proceedings and should plead guilty. I had been bringing builder’s waste in skip bins to the premises since 2010”.

61. Mr Wayne Brown said Mr Briggs also advised him that the Court would look at the matter more leniently if there was an early guilty plea. He was also concerned to keep the costs of the proceedings “to an absolute minimum if at all possible”, having regard to the costs associated with the 2009 contempt proceedings. Accordingly, relying on Mr Briggs’ advice that “we had no defence to the charge of contempt I decided to instruct him to plead guilty”.

62. It was not until early February 2012 following a telephone call with Mr Briggs and Mr Tomasetti that Mr Wayne Brown said he understood it was “arguable that the [2007 Consent Orders] did not prevent us keeping … non-putrescible waste on the premises in skip bins or otherwise” and that the 1995 Consent “probably permitted the keeping of non-putrescible waste on the premises, whether in skip bins or not.” Having received that advice and, accordingly, been advised to change his plea, he gave Mr Briggs instructions to “plead not guilty”.

63. In cross-examination, Mr Wayne Brown accepted that he had given evidence in the 2009 contempt proceedings that Order 1 of the 2007 Consent Orders was ambiguous, but said his view had changed on the day of the hearing when he had been advised that those orders were “not ambiguous and that they did prohibit the storage of waste in bins on the site.”

64. Mr Wayne Brown accepted that it was for he and his brother to make the decisions but said that:

“Q.   Well, it wasn’t the case that you simply deferred everything to your lawyers and just said, ‘Do whatever you like’, was it?

A.   Well, we put it in their hands because we – we didn’t, you know, Gary and myself don’t know that much about it.

Q.   But the position is that you actively participated in the sense that you discussed matters with your legal representatives and took action on their advice. Is that correct?

A.   They told us what we had to do and what we couldn’t do and – and everything, yes.

Q.   Well, you understood that their role was to give you advice and that decisions were up to, you understood that, didn’t you?

A.   Decisions are up to us, but I mean their advice is, you know it’s a 100% basically, 99.9%. I mean, what they say you do. I mean, that’s what you’re paying for. … [W]e are not lawyers. We don’t understand everything that’s written down.”

65. Mr Wayne Brown accepted that the issue of ambiguity in the 1995 Consent had been a matter with which he had been concerned in 2009, but said that, having spoken to his lawyers on the day he gave evidence in those proceedings, he “no longer had that belief that the company could store full bins at the premises”. He said that in 2011 there was no question of pleading “not guilty”, “we were told we were [guilty]”.

66. Mr Gary Brown said that Wayne was the main person who dealt with legal matters and gave instructions to the lawyers. He gave affidavit evidence that after the 2011 contempt papers were served he assumed “because the Council had served me with formal papers that I was guilty of sorting, stockpiling and storing full waste bins on the premises when we weren’t allowed to do that”. He knew Mr Briggs was going to enter a plea of guilty on his behalf and on behalf of BBWC.

67. In cross-examination Mr Gary Brown said that he gave instructions to his solicitor to plead guilty on his behalf in relation to the 2011 contempt charges because he found out in relation to the 2009 contempt charge that “we weren’t allowed to store full bins”. He said:

“I know nothing about legal matters like this and I am guided by the legal advice I get from my solicitor. The only reason I pleaded guilty to the charge before the Court was because I believed I had no defence and I believed that the Council would not take proceedings against us unless it was right.”

68. In February 2012 when he and his brother were told that they had a “case for pleading not guilty based on the issues of the original DA and that they should withdraw their pleas of guilty” he thought he and his brother should do that “because we had to get a determination by the Court of what the development consent meant”. Accordingly he agreed with his brother that they should plead not guilty.

Primary Judgment

69. The withdrawal application was heard on 8 February, 22, 26 and 27 March 2012. Her Honour delivered judgment on 20 December 2013.

70. The primary judge described the gravamen of the withdrawal application as being based upon “incorrect or inadequate legal advice given to [the appellants] by their legal advisers to the effect that the 1995 Consent did not permit the storage of non-putrescible waste on the property [and that they] were not in possession of all the facts, namely, that they could store bins full of building material on the property overnight, and therefore they did not, in truth, entertain a genuine consciousness of guilt.” [49]

    49. Primary judgment (at [103]); the Council submits that the reference to the “1995 Consent” in [103] was intended to be to the “2007 Consent Orders”. Contextually that must be correct. It is clear that the primary judge considered the withdrawal application on that basis.

71. The primary judge noted that “[p]lainly enough the onus of satisfying the Court that leave ought to be granted to withdraw their guilty pleas rests on the [appellants].” [50] Her Honour described the legal principles applicable to the withdrawal of a plea of guilty in some detail. These included (citations omitted):

    50. Primary judgment (at [66]).

“[95] … First, a court has a discretion to permit a change of plea at any time prior to sentence. Second, whether a plea is allowed to be withdrawn is entirely a matter for the discretion of the Court. Third, courts have emphasized that such applications must be approached with caution given the public interest in the finality of litigation. Fourth, there is no exhaustive statement of the circumstances in which pleas of guilty may be set aside. Each application will turn on its own facts. Fifth, although many cases concern an appeal from conviction based upon a guilty plea where the statutory test is whether a miscarriage of justice has arisen from the fact that the court acted upon the plea, in principle no stricter test should be applied to an application (such as the present) made before conviction.

[96]   Although discretionary, leave should be granted where the plea has been entered pursuant to some material mistake or where the integrity of the plea is otherwise questionable or would lead to a miscarriage of justice …

‘What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question ...’

…

[100]   In Rotner, the Court of Criminal Appeal (Simpson J, with whom McClellan CJ at CL and Fullerton J agreed) reiterated the legal principles expressed above and stated that (at [48] and [49]):

…

There are, in fact, two components to the test so stated – first, some circumstance that permits a conclusion that the plea of guilty was not really attributable to a genuine consciousness of guilt, and, second, an ‘issuable’ question about the guilt of the applicant. Neither, alone, is sufficient. As I understand the test, it is necessary for the applicant to point to circumstances that created a doubt about his guilt, as well as circumstances that raise a doubt about his own perception, at the time he entered the plea, of his guilt.

[101] Thus it is necessary for an applicant seeking to withdraw a plea of guilty to advert to circumstances that created a doubt about his or her guilt, as well as circumstances that raise a doubt about his or her own perception, at the time the plea was entered, of his or her guilt. Put another way, what is important is an elaboration of the circumstances that might justify a conclusion that a plea of guilty was not attributable to a genuine consciousness of guilt.” (Emphasis added.)

72. The primary judge summarised her reasons for finding that leave to withdraw the guilty pleas ought not be granted as follows:

“(a) first, the terms of the 2007 Consent Orders do not permit, upon their proper construction, the storage of non-putrescible waste on the property. It is a breach of the 2007 Consent Orders that has given rise to the contempt charge and it is the interpretation of the terms of the 2007 Consent Orders, not the 1995 Consent, that is determinative;

(b) second, to grant the leave sought would in all the circumstances impermissibly impinge upon the principle of the finality of litigation; and

(c) third, as the evidence discloses, the respondents were aware of the possibility that the 1995 Consent and thus the 2007 Consent Orders contained a potential ambiguity and with this knowledge they nevertheless pleaded guilty to the charges both in 2009 and, relevantly, in 2011.” [51]

51. Primary judgment (at [125]).

73. The primary judge then elaborated on those conclusions.

74. Her Honour first turned to the appellants’ submission that on their proper construction the 2007 Consent Orders permitted the storage of non-putrescible building waste on the property. They argued that “when regard was had to the clear and unambiguous terms of the 1995 Consent, it was plain that the storage of such waste overnight was permissible pursuant to that development consent, prohibiting only in condition 10 the collection and storage of ‘putrescible waste matter’ [and that] it could readily be inferred that BBWC would not have agreed in 2007 not to use the property in a manner that was permissible under the terms of the 1995 consent”. [52]

    52. Primary judgment (at [126]).

75. Her Honour then said (citations omitted):

“[127]   Although strictly not necessary to determine for the purpose of this application, were I required to do so, I would accept that, applying the relevant principles of construction of a development consent … upon the proper interpretation of condition 10 of the 1995 consent, non-putrescible waste was permitted to be stored in skip bins overnight on the property, provided it was not stored in compactor trucks (condition 14, unlike condition 10, prohibits compactor trucks stored on the depot while containing ‘any waste materials’, emphasis added). The plain and unambiguous language of condition 10 of the 1995 consent, especially when compared with condition 14, all but compels this conclusion.” (Emphasis added.)

76. However, her Honour continued:

“[128]   But it is not breach of the 1995 consent that founds the contempt charge, it is the alleged breach of the 2007 Consent Orders, order 1 of which injuncts BBWC from using the property - the area the subject of the 1995 consent – ‘for the storage...of any waste or things’ other than trucks and waste containers.

[129]   Properly construed, the 2007 Consent Orders mean what they say, namely, that all waste is prohibited from being stored on the property, both putrescible and non-putrescible. There are several textual and contextual indicators reinforcing this conclusion.

[130]   First, the 2007 Consent Orders did not pick up the language of ‘putrescible waste matter’ expressly contained in the 1995 consent. While one reason for this may be infelicitous drafting, given that both parties were legally represented in the 2007 proceedings, and given that there is no cogent evidence from the respondents that at the time they were signed, BBWC intended the 2007 Consent Orders to be limited in the manner they now contend for, I am disinclined to accept this explanation.

[131]   This is particularly so given the evidence of Mr Hudson, referred to above, that the terms of the draft orders and implications of their breach were discussed with the respondents, and their consultant town planning expert, Mr Winnacott, and amendments were made to those orders before they were agreed to. BBWC's acts after the 2007 proceedings, by lodging the 2008 DA and appealing the refusal of that DA to the Court, are consistent, in my view, with the understanding by it that no waste whatsoever was to be stored on the property.

[132]   Second, both the 1995 consent and the statement accompanying the 2007 Consent Orders filed by the council with the Court listing the matters said to justify the making of the consent orders, make it tolerably clear that by agreeing to the 2007 Consent Orders the council wanted to ensure that the property was not to be used as a waste management facility absent approval to do so (see order 8 in this regard). It may be presumed that the storage of waste material overnight on the property, whether in skip bins or otherwise, and whether putrescible or non-putrescible, would facilitate this use contrary to the council's intention. Hence it may be rationally inferred that the council sought, by the inclusion of order no 1 in the 2007 Consent Orders, to prohibit all waste from being stored on the property.

[133]   Third, orders 10(a) and 11(a) of the 2007 Consent Orders pick up and repeat, consistently, in my view, with order 1, the notion and language of ‘any [or all] waste materials’ (emphasis added). This strongly suggests that the width of order no 1 was deliberate.

[134]   And although orders 10(a) and 11(a) limit the proscription contained therein to the unsealed areas of the property, I do not consider that anything turns on this distinction that would warrant the construction of order no 1 being limited to putrescible waste stored on the property as the respondents submitted. The proscription against ‘placing’ any waste material on unsealed areas of the property in condition 11(a), or the requirement to ‘remove’ … all waste material from the unsealed areas of the property in condition 10(a), does not logically mean that waste material can be ‘stored’ in trucks or waste containers on the sealed areas of the property in contravention of order 1.

[135]   In my view, orders 10(a) and 11(a) serve to compliment the wide interpretation afforded to order no 1 that the property is not to be used as a waste management facility, which includes the storage of all waste material on site. Order 1 prevents the continuing and future prohibited use of the property until such time as development consent is granted to operate a waste management facility (order 8), and orders 10(a) and 11(a) necessitate, by the times stipulated in those orders, the removal and cessation of placing existing waste on certain sections of the property, viz, unsealed, no doubt to ensure that pollution does not occur by, for example, the spillage of waste materials onto land that cannot as easily or quickly be remediated.

[136]   Finally, the respondents submitted that order 1 should be construed as permitting the use of the property for the purpose of ‘the storage of...waste containers’ whether full or empty, because order 1 makes no reference to ‘empty’ waste containers, whereas elsewhere in the 2007 Consent Orders there was express reference to ‘empty skip bins’ (order 11(a)).

[137]   In my opinion, construing the term ‘waste containers’ both within the context of order 1 and against the manifest purpose of that order and the 2007 Consent Orders as a whole, the preferable meaning to be ascribed to that term is that of empty waste containers. I do not, in any event, understand how this assists the respondents given the prohibition against ‘the storage...of any materials’. A ‘truck’ or ‘waste container’ is not a material.

[138]   Although the construction of the 2007 Consent Orders is an exercise undertaken having regard to the text, scope, context and purpose of those orders, I am nevertheless comforted as to the correctness of the interpretation arrived at above by the evidence of Mr Wayne Brown in his 14 December 2011 affidavit. In that affidavit, Mr Brown acknowledges that the consent orders BBWC entered into in 2007 prohibited the storage of bins containing waste on the property (especially at paragraph 78, quoted above).”

77. In response to the appellants’ submission that, as a matter of logic, BBWC would not have consented in 2007 to curtail a lawful use of the property as approved in the 1995 Consent, her Honour noted that “respondents in civil proceedings, including civil enforcement proceedings, agree to settle on terms that may not directly relate to the narrow issues joined between them.” [53]

    53. Primary judgment (at [139]).

78. The primary judge was also of the view that it would undermine the public interest in the finality of litigation if the Court were to go behind the making of orders “consented to by the parties … and long since entered” and “second guess the parties’ motives for agreeing to particular terms of settlement”. Her Honour also observed that “[t]ellingly, in this regard, the respondents have not sought to set aside order 1 of the 2007 Consent Orders (although if leave to withdraw the pleas of guilty is granted, they have foreshadowed seeking an order to vary its terms to effectively allow the storage of non-putrescible waste on the property).” [54]

    54. See primary judgment (at [140]).

79. Accordingly, “[h]aving regard to the ‘caution bordering on circumspection’ the Court is required to consider in the exercise of its discretion in any application to withdraw a guilty plea, the finality of the 2007 Consent Orders ought to, in all the circumstances of this application, be respected and maintained.” [55]

    55. Primary judgment (at [141]).

80. The primary judge identified a further difficulty with the appellants’ approach as being “the potential for ‘the scandal of conflicting decisions’ of the Court or at the very least, conflicting factual findings, in respect of these proceedings and the 2009 contempt proceedings. [56] She said:

“In the 2009 contempt proceedings, the Court, albeit not having been asked to construe the 2007 Consent Orders, nevertheless accepted, by convicting BBWC of the charge in Brown Brothers Waste Contractors (No 2) (at [143(1)]), that BBWC had breached order 1 of the 2007 Consent Orders by bringing skip bins full of waste onto the property. To grant leave to withdraw the guilty pleas of the respondents on the basis that the 2007 Consent Orders actually permit the very acts giving rise to the 2011 contempt proceedings, in circumstances where the same acts resulted in convictions for breach of the same consent order in 2009, would undermine the correctness of the 2009 contempt decision and jeopardise public confidence in the administration of justice. This is particularly so where during the 2009 contempt proceedings, as noted above, the construction of order 1 was initially raised by BBWC as an issue but was later abandoned by it at the hearing (see the transcript of Mr Wayne Brown's evidence quoted above).” [57]

56. Primary judgment (at [142]), referring to Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 (at 280) per Deane and Gaudron JJ.

57. Primary judgment (at [143]); Brown Brothers Waste Contractors (No 2) was a reference to the judgment in the 2009 contempt proceedings.

81. Her Honour also held that the guilty pleas were attributable to a genuine consciousness of guilt and there were no circumstances affecting their integrity. [58] She said:

“[145] This is because, first, as discussed above, I do not consider that the legal advice was in fact incorrect. Properly construed, the 2007 Consent Orders prohibit the storage of all waste filled skip bins, irrespective of whether or not the waste is putrescible or non-putrescible. The advice given by Mr Clay in 2009 and Mr Briggs, initially at least, in 2011, was correct in this regard.

[146] Second, having regard to the totality of the evidence before the Court, I find that at the time the pleas were entered each of the respondents made a deliberate and informed choice to plead guilty. Put another way, I find that the pleas were entered in possession of all the facts, including the fact that the respondents were aware that the 2007 Consent Orders contained a potential ambiguity as to the scope of order 1 in the manner described above; the fact that the respondents were aware that on one possible construction of the 2007 Consent Orders they had contravened order 1 by storing skip bins containing waste on the property overnight; and the fact that the respondents harboured a very understandable desire to keep legal costs to a minimum and to gain the benefit of potential leniency from the Court by pleading guilty.

[147] I do not accept, as was suggested, that at no point during the 2011 contempt proceedings did the respondents turn their minds to the question of whether the storage of bins full of building waste on the property was permitted under the terms of the 1995 consent, and that therefore, the 2007 Consent Orders were uncertain. Moreover, the respondents were familiar with, and understood, the nature of the 2011 contempt charge by reason of the 2007 and 2009 proceedings; were aware of the factual similarity between the 2007, 2009 and 2011 proceedings; understood, by reason of the 2009 contempt proceedings, the factual basis of the 2011 charge, namely, breach of order 1 of the 2007 Consent Orders; and Mr Wayne Brown believed as at 22 June 2009, that the 1995 consent and hence the 2007 Consent Orders were equivocal.

[148] Although Mr Wayne Brown and Mr Gary Brown gave evidence in this application that they had pleaded guilty only because ‘we had no defence’ based on the legal advice given to them by Mr Briggs, I do not accept this explanation. Rather, I find that, notwithstanding knowledge by them of the ambiguity in the 1995 consent which flowed into the 2007 orders, the respondents nevertheless believed that they had breached the terms of those consent orders by storing skip bins containing non-putrescible waste overnight on the property and, due predominantly to cost considerations, they freely and voluntarily elected to plead guilty with full knowledge of the facts.

[149] Having found this, I accept that, regrettably, at no point was the issue of the proper construction of the 2007 Consent Orders canvassed with either Mr Tomasetti SC or the respondents until the conference in early February 2012. That is to say, until after the pleas of guilty had been entered. I leave it to others to decide the appropriateness of Mr Briggs providing ‘certain legal advice’ to clients as to whether or not to plead guilty to a charge of contempt, with its serious consequences, including the recording of a criminal conviction, in the absence of having regard to all of the underlying documentation giving rise to the charge, in particular, the terms of the 1995 consent.”

58. Primary judgment (at [144]).

82. Accordingly, her Honour concluded that no miscarriage of justice would occur if leave to withdraw the pleas of guilty was refused. [59] She dismissed the notice of motion with costs.

    59. Primary judgment (at [154]).

Issues on Appeal

83. The Notice of Appeal raises 5 grounds of appeal, which are described by the appellants as follows:

1. Ground 1 asserts a denial of procedural fairness in purporting to determine the construction of the 2007 Consent Orders in circumstances where the primary judge was aware from the terms of the motion and the argument before her that the determination of the proper construction of the 2007 Consent Orders was not an issue before the Court on the motion for final determination.

2. Ground 2 asserts a reasonable apprehension of bias arising from the primary judge proceeding to determine the construction question referred to in Ground 1 in circumstances where she had previously made adverse findings as to the second appellant’s credit in the 2009 proceedings on the very same question – namely, the alleged ambiguity arising from the 2007 Consent Orders.

3. Ground 3 alleges a miscarriage of the exercise of the Court’s discretion [60] having regard to her Honour’s finding [61] that the 1995 Consent permitted non-putrescible waste to be stored in skip bins over-night on the land.

4. Ground 4 asserts error arising from a delay of almost 2 years between the hearing of the evidence and arguments on the motion and the delivery of the interlocutory judgment. In particular, the appellants contend that the factual findings of the primary judge as to the state of mind of Messrs Wayne and Gary Brown ought be set aside because they were contrary to the evidence. [62]

5. Ground 5 asserts that the primary judge erred in law in determining that no miscarriage of justice would occur if she refused leave to withdraw the guilty pleas. [63]

Appellants’ Submissions

60. See primary judgment (at [125]).

61. See primary judgment (at [127]).

62. See primary judgment at [147], [148] and [151].

63. See primary judgment (at [154]).

Ground 1 – Denial of procedural fairness

84. The appellants submitted that they had emphasised before the primary judge that the construction of the 2007 Consent Orders (and the 1995 Consent) were not issues before her Honour on the appellants’ amended motion but, rather, that they were only seeking leave to withdraw the guilty pleas and then to have a separate hearing to determine the true construction of those documents.

85. They contended that in purporting on the motion to finally construe the 2007 Consent Orders, the primary judge deprived both parties of the opportunity to lead any evidence and make detailed submissions on the construction issue.

86. This denial of procedural fairness had a bearing on the primary judge’s decision as the construction of the 2007 Consent Orders was the first of three key reasons her Honour gave for refusing to accede to the withdrawal application. [64]

    64. See primary judgment (at [125](a)).

87. Had the appellants been on notice that the primary judge intended to adopt a procedural course different to the approach being taken by the parties, and purport finally to construe the 2007 Consent Orders, the appellants would have made further submissions as guided by the reasons of Campbell J in Kirkpatrick v Kotis. [65] These would have included the argument that surrounding circumstances can be used to construe consent orders. Given that the 2007 Consent Orders were to be construed by reference, inter alia, to the 1995 Consent, which plainly permitted non-putrescible waste to be stored in skip bins overnight on the property provided it was not stored in compactor trucks, the 2007 Consent Orders could not have prohibited what the 1995 Consent allowed. In this context, unsurprisingly, the appellants embraced what they contended was the primary judge’s finding that the 1995 Consent permitted the storage of non-putrescible waste on the land in skip bins overnight. [66]

    65. [2004] NSWSC 1265; (2004) 62 NSWLR 567 (at [38]ff).

    66. Primary judgment (at [127]).

148. However, her Honour had to determine whether or not the fundamental proposition for which the appellants contended was correct. It would not be correct if, applying proper principles of construction, the 2007 Consent Orders meant what the Council contended they did. Determining the meaning of the 2007 Consent Orders in that manner necessarily involved rejection of the appellants’ contention concerning the mere arguability of these issues.

149. As will be apparent from the following reasons, I do not, with respect, agree with her Honour’s construction. However, it is sufficient in the context of the procedural fairness point to say her Honour took an available course in determining the appellants’ withdrawal application. As that application was, at least in part, dependent upon the appellants persuading her Honour that Order 1 of the 2007 Consent Orders was ambiguous, it behoved the primary judge to determine that issue. In so doing, she was required to construe the Order if she was to reject the claim of ambiguity.

150. I would not, accordingly, uphold the appellants’ complaint about denial of procedural fairness.

Withdrawal of a guilty plea

156. Because a guilty plea “is an admission of all of the legal ingredients of an offence and is the most cogent admission of guilt that can be made”, an “asserted want of understanding of what was involved in [such a] plea … is approached with ‘caution bordering on circumspection’.” [109] Such circumspection rests in part on the cogency of the plea itself and, too, “on the high public interest in the finality of legal proceedings”. [110] The principle of finality is not offended once it is established that there will be a miscarriage of justice if a withdrawal application is not allowed. [111]

     109. Kim v R [2015] NSWCCA 115 (at [54]) per RA Hulme J (Hoeben CJ at CL and Beech-Jones J agreeing), referring to R v Sagiv (1986) 22 A Crim R 73 and R v Liberti (1991) 55 A Crim R 120.

     110. R v Liberti (at 122) per Kirby P (Grove and Newman JJ agreeing); see also R v Wilkes (at [21] – [22]) per Wood CJ at CL (Giles JA and Simpson J agreeing).

     111. R v Davies (Court of Criminal Appeal (NSW), 16 December 1993, unrep) per Badgery-Parker J (Wood and Mathews JJ agreeing); referred to with approval in R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533 (at [26]) per Spigelman CJ (Newman and Adams JJ agreeing).

157. In order to be given leave to withdraw a guilty plea:

It is necessary for the applicant to establish that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; 184 CLR 132 at 157. Without being exhaustive, that may be shown in circumstances where:

● the applicant did not appreciate the nature of the charge to which the plea was entered: R v Ferrer-Esis (1991) 55 A Crim R 231 at 233; R v Iral [1999] NSWCCA 368; Meissner v The Queen, supra, at 157.

● the applicant was not in possession of all of the facts and the plea was not attributable to a genuine consciousness or recognition of guilt: R v Murphy [1965] VR 187 at 191; R v Davies (Court of Criminal Appeal (NSW), 16 December 1993, unrep); R v Ganderton (Court of Criminal Appeal (NSW), 17 September 1998; unrep); and R v Favero [1999] NSWCCA 320.

● there was a mistake or other circumstance affecting the integrity of the plea as an admission of guilt: R v Sagiv, supra; or where

● the advice of the applicant's lawyer(s) was imprudent, inappropriate or incorrect: R v Wilkes [2001] NSWCCA 97; 122 A Crim R 310; R v Hawker [2005] NSWCCA 118.” [112]

112. Kim v R (at [55]).

158. There is no “presumption one way or another … in favour or against an applicant for leave to have his plea of guilty changed to one of not guilty … [t]he only test [being] whether a miscarriage of justice, in the view of the judge, would occur if the leave sought were denied the applicant”. [113] The fundamental proposition is that “it is a matter for the discretion of the Judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken.” [114] Nevertheless, “[i]t is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave.” [115]

     113. R v Middap (1989) 43 A Crim R 362 (at 364) per Crockett, O’Bryan and Gray JJ.

     114. R v Sagiv (at 80) per Lee J (McInerney and Campbell JJ agreeing).

     115. R v Sagiv (at 80) per Lee J (McInerney and Campbell JJ agreeing).

159. It is incumbent upon an applicant seeking leave to withdraw a guilty plea to identify clearly the substance of the proposed defence if the plea reversal is permitted and to “put forward at least some evidence, independent of his own evidence, and which, if accepted, would have justified a finding that the application to reverse the plea of guilty was a bona fide application.” [116]

     116. Piras v R [2006] NSWCCA 396; (2006) 167 A Crim R 260 (at [17]) per Sully J (Howie and Hall JJ agreeing).

160. In considering whether a plea was entered on the basis of imprudent and inappropriate legal advice in circumstances such as to amount to a miscarriage of justice, the Court will consider:

“a) whether the advice given to the appellant was or was not imprudent and inappropriate;

b) whether his plea was or was not attributable to a consciousness of guilt; and

c) whether the material before this court shows that there is or is not a real question about his guilt.” [117]

117. R v Wilkes (at [20]); see primary judgment (at [111]).

161. As Kirby P explained in Liberti. [118]

“An accused person will not always know the legal consequences of the facts to which he pleads guilty. He or she is normally entitled, where represented, to look to the lawyers to explain those facts for their legal significance. Ultimately, the accused is entitled to look to the court before which he or she comes to offer protection from a conviction which is not, in law, sustained by the facts.”

118. (at 125).

162. In R v Ganderton [119] and R v Favero,[120] the Court considered an application to withdraw a plea on the basis of absence of advice about defences lawfully available. In Ganderton, Sperling and James JJ held, in a passage applied in Favero, that belief by an accused that he is guilty of the offence charged which arises from a mistaken or possibly mistaken understanding of the facts or “from a failure on the part of the accused’s legal representative to inform the accused accurately of the elements of the offence, so that the accused incorrectly believes that the facts as alleged and admitted constitute the offence charged”, in circumstances where there was an arguable case for acquittal, meant there was no “genuine consciousness of guilt” when the appellant pleaded guilty to the charges. Accordingly, there was an “issuable question of guilt” to be tried, and a miscarriage of justice warranting a new trial.

     119. (Court of Criminal Appeal (NSW), unrep, 17 September 1998).

     120. [1999] NSWCCA 320 (at [17]ff) per Sully J (Hidden and Greg James JJ agreeing).

163. A factor which is also taken into consideration, as the primary judge recognised, [121] is that:

“[A] person may plead guilty upon grounds which extend beyond that person’s belief in his guilt … The entry of a plea of guilty upon such grounds nevertheless constitutes an admission of all the elements of the offence, and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred … Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence.” (Emphasis added.) [122]

121. Primary judgment (at [93] – [94]).

122. Meissner v R (at 157) per Dawson J; see also (at 141) per Brennan, Toohey and McHugh JJ.

164. As the question whether to grant leave to withdraw a plea of guilt is a discretionary one, the principles in House v The King apply. Accordingly, to succeed on appeal, the appellants must establish the primary judge’s rejection of the withdrawal application was “demonstrably wrong”, or that, for some other reason, her Honour erred in a House v The King sense. [123]

     123. Piras v R (at [14] – [15]), referring to R v Foley [1963] NSWR 1270.

Construction of consent orders

165. As a matter of course, “[i]njunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction”. [124] It is “an elementary principle of justice and fairness that no order will be enforced by committal unless it is expressed in clear, certain and unambiguous language”. [125] An “injunction should indicate the conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected on its part”. [126]

     124. ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 (at 259) per Lockhart J (Gummow and French JJ agreeing); Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; (2006) 150 FCR 110 (at [40]) per Branson J (Lindgren and Finkelstein JJ agreeing) cited in Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34

     125. Harris v Harris [2000] EWHC 231 (Fam); [2001] 3 FCR 193 (at [288]) per Munby J; see also Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 (at [55]) per Beazley JA (McColl JA and Lindgren AJA agreeing); Kao, Lee & Yip v Donald Koo Hoi Yan [2009] HKCFA 59; [2009] 5 HKC 36; (2009) 12 HKCFAR 830; (at [23]) per Sir Gerard Brennan NPJ (Bokhary, Chan, Ribeiro PJJ and Nazareth NPJ agreeing).

     126. Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 (at [58]) per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

166. In Athens v Randwick City Council,[127] Hodgson JA was of the view that the Court could “consider context in the case of consent orders, in much the same way as one can consider context in construing a contract”. His Honour referred with approval to Kirkpatrick v Kotis,[128] where Campbell J (as his Honour then was) discussed authorities supporting this proposition and concluded that “[t]he type of surrounding circumstances which can be used are those which can be used to construe a contract, in accordance with the principles laid down by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 352”. [129]

     127. [2005] NSWCA 317; (2005) 64 NSWLR 58 (“Athens”) (at [28] – [29]); Santow and Tobias JJA relevantly agreed with Hodgson JA’s reasons.

     128. [2004] NSWSC 1265; (2004) 62 NSWLR 567 (“Kirkpatrick”) (at [38] – [45]); Campbell JA repeated these views in Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 (at [109]) with Allsop P and Basten JA’s agreement; see also Ross (at [76]); Lee v New South Wales Crime Commission [2012] NSWCA 262; (2012) 224 Crim R 94 (at [14] – [15]) per Bathurst CJ (Macfarlan and Barrett JJA agreeing).

     129. Kirkpatrick (at [45]).

167. Although it has been said that it “appears to be an open question whether, before resort can be had to the reasons for judgment of a court for the purpose of construing its orders, the orders must contain an ambiguity”, [130] where such ambiguity is found, the Court can have regard to extrinsic evidence. [131] Such evidence may include “reference to the proceedings in which the judgment is given, particularly the pleadings”. [132]

     130. Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 (“Sertari”) (at [81]) per Tobias AJA (McColl and Barrett JJA agreeing).

     131. Ross (at [30]); see also Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170; (2014) 86 NSWLR 674 (at [245]) per Barrett JA (Beazley P agreeing); (at [60] – [62]) per Basten JA.

     132. Athens (at [140](c)); see also Rogers v Wentworth (Court of Appeal (NSW), 18 April 1988, unrep) per Mahoney JA (referred to in Kirkpatrick (at [40])).

Construction of the 2007 Consent Orders

168. Order 1 of the 2007 Consent Orders refers generally to BBWC being restrained from “using the rear area” of the land the subject of the 1995 Consent “for the purposes of a waste management facility or for the storage, sorting, or stockpiling of any materials, or things other than the storage of trucks and waste containers” (emphasis added). As can be seen, Order 1 is expressed disjunctively. Further, it does not state that the “trucks and waste containers” are to be empty, in contrast to Order 11(a) which expressly referred to empty skip bins and vehicles. [133]

     133. See below (at [171]).

169. Order 2 suspended the operation of Order 1 until 28 February 2008.

170. Orders 3 – 9 refer variously to matters concerning concrete slab work (Orders 3 – 5), the submission of a s 96 application concerning modifications to the 1995 Consent in relation to onsite storm water detention and the like (Order 6 and 7), the lodgement of a development application to use the premises for the purposes of a waste management facility (Order 8) and the provision of details of proposed measures to eliminate dust pollution from the site (Order 9).

171. Both Orders 10(a) and 11(a) direct BBWC expressly in relation to its conduct on “unsealed areas on the premises” by reference to temporal requirements. Order 10(a) required BBWC to remove “all waste materials and stockpiles of materials from unsealed areas of the premises” by 31 August 2007. Order 10(b) required it to erect silt and sediment fences.

172. Order 11 dealt with the period from 1 September 2007. Order 11(a) required BBWC henceforth to conduct its activities on the premises in a manner which ensured that “any waste materials or other materials or things other than empty skip bins and vehicles are not placed on unsealed areas on the premises.” Order 11(b) required it to implement and maintain measures to eliminate dust pollution from the site. Order 11(c) required it to maintain the silt and sediment fences referred to in Order 10(b).

173. In my view, it is arguable that the general proscription in Order 1 is qualified by the express provisions of Orders 10(a) and 11(a) which specify that “all waste materials and stockpiles of materials” must be removed from “unsealed areas of the premises” and that no such materials or things other than “empty skip bins and vehicles” may be placed in those areas. So construed, it is arguable that the proscription in Order 1 applies to the unsealed areas of the land (of which there were still some as at 2007) rather than to the entirety of the land. It is thus arguable that skip bins containing waste materials may be placed on sealed areas of the land. At the very least, the juxtaposition of Orders 10(a) and 11(a) in the context of Order 1 made the 2007 Consent Orders arguably ambiguous.

174. This conclusion is reinforced if one has regard to the terms of the 1995 Consent which was expressly referred to in Order 1. As the primary judge prima facie found, on its proper interpretation the “plain and unambiguous language of condition 10 of the 1995 Consent, especially when compared with condition 14, all but compels [the] conclusion” that condition 10 “which prohibited putrescible waste matter” from being “collected, stored, transported or brought to the site” had the effect that non-putrescible waste matter could be dealt with on site in that manner. [134]

     134. Primary judgment (at [127]).

175. Nothing in the Amended Application in the 2007 proceedings expressly purported to circumscribe any activity permitted by the 1995 Consent. However, Orders 10(a) and 11(a), as I have said, arguably had the effect of limiting the areas of the land onto which such waste could be brought to sealed, rather than unsealed, areas. The primary judge’s conclusion that these orders “serve to compliment [sic] the wide interpretation afforded to order no 1” [135] had the effect of excluding an important contextual consideration. It is difficult to see how orders specifically identifying areas where waste could not be stored in skip bins or vehicles did not, at least arguably, have the effect that waste could be stored in such manner on areas not included within the restraint.

     135. Primary judgment (at [135]).

176. Contrary, with respect, to the primary judge’s view, the 2007 Consent Orders could not be understood without an understanding of the activities the 1995 Consent permitted. Indeed, as the 1995 Consent was referred to parenthetically in Order 1, it was arguably incorporated by reference to inform the proper construction of the 2007 Consent Orders. Such incorporation strengthened the appellants’ argument concerning the proper construction of Order 1 of the 2007 Consent Orders, even without reference to Orders 10(a) and 11(a).

177. Curiously, while eschewing reference to what her Honour accepted was an available construction of the 1995 Consent, being that for which the appellants contended, her Honour referred to that Consent as supporting her conclusion that the 2007 Consent Orders prohibited all putrescible and non-putrescible waste from being stored on the property. [136] Thus, the second reason her Honour gave for this conclusion referenced both the 1995 Consent and the 2007 Statement as making “it tolerably clear that by agreeing to the 2007 Consent Orders the Council wanted to ensure that the property was not to be used as a waste management facility absent approval to do so”. [137]

     136. Primary judgment (at [129]).

     137. Primary judgment (at [132]).

178. This conclusion is not weakened, as the Council contended, by reference to the 2007 Statement. [138] Clause 2, which the Council contended constituted an admission, was, in itself, expressed in general terms as to BBWC being both compliant and non-compliant with the 1995 Consent. Once one concludes that it was an available construction that that Consent permitted storage of non-putrescible waste on the land, the 2007 Statement also arguably supports the appellants’ contentions.

     138. The Statement is set out above at [24].

179. Nor, with respect, should the primary judge have been “comforted as to the correctness of [her] interpretation” by reference to Mr Wayne Brown’s 14 December 2011 affidavit, [139] which could be presumed to have been prepared on the basis of the erroneous legal advice he had been given by Mr Briggs.

     139. Primary judgment (at [138]).

180. In my view, once the primary judge reached the prima facie view her Honour did concerning the 1995 Consent, it was apparent that it was arguable the 2007 Consent Orders did not preclude BBWC from using the land in the manner the subject of the 2011 contempt charges. In other words, it was arguable that the appellants had a defence to those charges and that the legal advice they had received to the contrary was erroneous.

181. The Council submitted that the storage of waste on the land, which was the principal factual complaint founding the 2007 and 2011 proceedings, related to a complaint that the appellants were using the land as a waste management facility. This was because BBWC was storing waste on a “facility” located in or within 100 metres of a natural waterbody. [140] It contended it was apparent, as the primary judge concluded, [141] that Order 1 of the 2007 Consent Orders was intended not only to restrain any contraventions of the 1995 Consent, but also any use of the land for which there was no consent, such as a waste management facility.

     140. EPA Regulation, Sch 3, cl 32(4)(a).

     141. See primary judgment (at [128] – [135]).

182. The references to a “waste management facility” did not carry the matter further for a number of reasons. First, as the appellants submitted, absent express amendment of the 1995 Consent, the 2007 Consent Orders could not proscribe what that Consent permitted.

183. That submission was supported by reference to Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [142] where McHugh, Hayne and Heydon JJ observed, by reference to s 123 of the EPAA, that “[a]n order directed to a person who is not actually in breach of the Act, and not threatening to act in breach, would neither remedy nor restrain any breach.”

     142. [2004] HCA 59; (2004) 220 CLR 472 (at [48]).

168. Secondly, Order 1 was inherently ambiguous even if, as the Council contended, it could apparently restrain what the 1995 Consent permitted by reference to the description of “waste management facility” in the EPA Regulation. This was because, as the foregoing reasons demonstrate, the restraint in Order 1 was qualified by the permission implicitly granted by Order 11(a) to place skip bins containing waste on sealed areas of the land. An order expressed in such language could not be enforced by committal. [143] This construction is not cured by reference to the 2007 Statement. Even if, as the Council contends, paragraph 2 could be seen as an admission by BBWC that the land was being used as a waste management facility, that does not cure the ambiguity inherent in the operation of the 2007 Consent Orders for the future. At its highest, on the available construction of the 2007 Consent Orders, the Council gave BBWC the permission to which I have referred above.

     143. See above (at [165]).

169. Indeed, it is notable that the 2011 contempt charge against BBWC did not rely purely on an allegation that it was using the land as a waste management facility. Rather, it coupled that with conjunctive and disjunctive (“and/or”) allegations that it was using the land “for the storage … of materials and things other than the storage of trucks and waste containers”. [144]

     144. See above (at [165]).

170. Thirdly, in order to determine “whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary”. This entails determining the “physical acts by which the land is made to serve some purpose”. [145] In this case the Council alleged BBWC was using the land as a “waste management facility” because waste was stored overnight on the land in skip bins.

     145. Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 (at [28]) per Preston CJ.

171. Prima facie use as a “facility” would appear to connote conducting a business whose regular purpose was such storage. The particulars of the contempt charge did not support the position of regular storage. Rather, they appeared to demonstrate occasional use. Such usage would be consistent with Mr Wayne Brown’s evidence to the effect that skip bins with waste were left on site overnight occasionally when the tip where such waste was normally deposited was closed by the time the truck with the skip arrived.

172. Fourthly, the expression “waste management facilities” in the EPA Regulation is not itself defined. The additional wording with respect to “works that store, treat etc” waste is expressed as an alternative land use to that of a waste management facility. In any event the storage of waste overnight in skip bins does not constitute “works”. It is not necessary to attempt to define the limits or contents of a waste management facility. It is sufficient to find that the limited storage of waste in skip bins on the land does not of itself constitute a waste management facility. The primary judge’s opinion (at [132]) that such storage would “facilitate” the use of the land as a waste management facility, even if true, which I doubt, does not lead to the conclusion that such a facility was indeed being carried out upon the land.

Consciousness of guilt

189. The primary judge rejected the appellants’ evidence that they had pleaded guilty in the belief they had no defence due to Mr Briggs’ erroneous legal advice because, based on the factual chronology she had recorded [146] and the appellants’ evidence, she concluded “the pleas … may be characterised as genuine admissions of guilt [sic, by persons] in possession of all the relevant facts and were not the result of reliance on imprudent or inappropriate legal advice.” [147] This conclusion relied on her Honour’s anterior conclusion that Mr Briggs’ initial advice in 2011 was correct in this regard. [148] I have already found to the contrary.

     146. Primary judgment (at [5] – [65]).

     147. Primary judgment (at [144]).

     148. Primary judgment (at [145]).

190. Secondly, her Honour concluded:

“[146] … [H]aving regard to the totality of the evidence before the Court, I find that at the time the pleas were entered each of the [appellants] made a deliberate and informed choice to plead guilty. Put another way, I find that the pleas were entered in possession of all the facts, including the fact that the [appellants] were aware that the 2007 consent orders contained a potential ambiguity as to the scope of order 1 in the manner described above; the fact that the [appellants]were aware that on one possible construction of the 2007 consent orders they had contravened order 1 by storing skip bins containing waste on the property overnight; and the fact that the [appellants] harboured a very understandable desire to keep legal costs to a minimum and to gain the benefit of potential leniency from the Court by pleading guilty.”

191. Significantly, her Honour did not base her finding on any express credit finding or observations as to the Brown brothers’ demeanour. However it was implicit in her rejection of their evidence that she did not accept them as witnesses of truth.

192. Her Honour did not accept “that at no point during the 2011 contempt proceedings did the [appellants] turn their minds to the question of whether the storage of bins full of building waste on the property was permitted under the terms of the 1995 consent, and that therefore, the 2007 consent orders were uncertain.” [149]

     149. Primary judgment (at [147]).

193. It is difficult to know what to make of these findings. The critical time to look at in terms of whether the appellants considered what the 1995 Consent and the 2007 Consent Orders permitted was immediately prior to the pleas of guilty. Both the Messrs Brown had to have turned their minds at that stage, at least, to the 2007 Consent Orders as the contempt charges alleged it was those orders which had been breached and they accepted Mr Briggs’ advice that they had no defence and had to plead guilty. Mr Wayne Brown said he had not discussed his earlier beliefs about the ambiguity of the orders with Mr Briggs before the guilty plea, [150] although that would, of course, have been apparent to Mr Briggs from reading the 2009 contempt judgment.

     150. He said it was first raised in the context of the 2011 contempt charges in February 2012:

194. However it was clear from Mr Briggs’ unchallenged evidence that he had not considered there was an issue about the appellants’ guilt until February 2012. [151] Her Honour accepted that evidence, concluding that “at no point was the issue of the proper construction of the 2007 consent orders canvassed with either Mr Tomasetti SC or the [appellants] until the conference in early February 2012 … after the pleas of guilty had been entered”. [152]

     151. See above (at [57]).

     152. Primary judgment (at [149]).

195. Her Honour next found that:

“Although Mr Wayne Brown and Mr Gary Brown gave evidence in this application that they had pleaded guilty only because ‘we had no defence’ based on the legal advice given to them by Mr Briggs, I do not accept this explanation. Rather, I find that, notwithstanding knowledge by them of the ambiguity in the 1995 consent which flowed into the 2007 orders, the respondents nevertheless believed that they had breached the terms of those consent orders by storing skip bins containing non-putrescible waste overnight on the property and, due predominantly to cost considerations, they freely and voluntarily elected to plead guilty with full knowledge of the facts.” [153]

153. Primary judgment (at [148]).

196. The most fundamental objection to this finding (which echoes that made at [146]), with respect, is that it was never put to either individual appellant that he pleaded guilty knowing of the ambiguity in “the 1995 consent which flowed into the 2007 orders”.

197. Further, it is difficult to understand from the generality of the reference to the factual chronology what weight her Honour placed upon any aspect of the history to reject the appellants’ evidence concerning their reliance upon Mr Briggs’ advice in 2011.

198. Mr Wayne Brown had explained the evolution of his beliefs concerning the 1995 Consent and the 2007 Consent Orders. As that evidence revealed, his opinion (and, Gary’s in a derivative sense) was informed by legal advice. It evolved from a belief about ambiguity prior to the hearing of the 2009 contempt charges to one that had been dispelled after receipt of legal advice on that day. [154]

     154. See the extract of his evidence on that occasion set out in the primary judgment (at [44]).

199. The primary judge’s reasons, with respect, fail to accord any weight to this changed position. They appeared to treat Mr Wayne Brown as having continued to hold the belief about the ambiguity of the 2007 Consent Orders he had entertained prior to the 2009 contempt hearing.

200. Neither of the Messrs Brown gave evidence that at the time they pleaded guilty to the 2011 contempt charges they retained a belief that either the 1995 Consent or the 2007 Consent Orders were ambiguous. Nor, as I have said, was this proposition put to either of them in cross-examination. Insofar as her Honour attributed their pleas to a costs avoidance exercise and although they expressed understandable concern about the costs of the proceedings, nothing in the evidence as I read it indicated that that issue outweighed Mr Briggs’ advice as to their guilt.

201. Further, her Honour’s finding failed to take into account Mr Briggs’ unchallenged evidence that, based on the 2009 contempt judgment, he advised the appellants in October 2011 to plead guilty to the 2011 contempt charges. For the reasons I have elsewhere explained, in my view Mr Briggs’ advice was incorrect.

202. In my view it was not open to her Honour to conclude that the appellants pleaded guilty knowing the 2007 Consent Orders contained a potential ambiguity as to the scope of Order 1, rather than in reliance upon Mr Briggs’ incorrect legal advice. This finding was contradicted by the uncontested testimony from both the Brown brothers and Mr Briggs. [155]

     155. Cf Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [28]) per Gleeson CJ, Gummow and Kirby JJ.

203. It is unnecessary to reach a finding as to whether the delay in delivering judgment contributed to this, although the appellants could have a legitimate grievance from the rejection of their evidence without a “clear and rational process of reasoning”. [156] However, even a finding that delay may have influenced the decision making process does not, of itself, justify upholding the appeal. Error on the part of the primary judge must still be established warranting either a reversal of the judgment or the grant of a new trial. [157]

     156. Monie (at [43](9)).

     157. Monie (at [44]).

204. Contrary to the Council’s submissions, her Honour’s factual findings as to the appellants’ consciousness of guilt were an operative fact in her rejection of the withdrawal application, being the second of the three factors referred to in R v Wilkes. [158]

     158. See above (at [160] above).

205. In my view the appellants have established that that their pleas were not attributable to a consciousness of guilt.

Finality of litigation

206. The primary judge regarded the appellants’ submission that they would not have agreed to the 2007 Consent Orders if they were otherwise permitted to do what the orders arguably prohibited, as an attempt to “go behind” the orders. So characterised, her Honour said that to accede to that application “would be to undermine the important public interest in the principle of the finality of litigation”. [159] In my view her Honour, with respect, misunderstood the appellants’ submission which was directed to the proper construction of the 2007 Consent Orders.

     159. Primary judgment (at [140]).

207. Her Honour also thought it telling that the appellants had “not sought to set aside order 1 of the 2007 consent orders”. [160] However, the appellants had sought in their amended motion to vary Order 1 in a manner which would reconcile its arguably inconsistent interaction with the 1995 Consent. They were not proceeding on that aspect of the amended motion before her Honour at that stage, taking the approach that the withdrawal application should proceed first, with the variation application to be addressed at a later stage. Her Honour had been informed of this in the course of submissions as her parenthetical observation at [140] acknowledged. This should, in my view, have dispelled any concern her Honour may have had about the appellants’ approach to Order 1 in this respect.

     160. Primary judgment (at [140]).

208. Further, both the principle of finality of litigation and that of avoidance of conflicting decisions are invoked to “maintain public confidence in the administration of justice”; in other words to ensure the administration of justice is not brought into disrepute. [161] However, neither principle should be invoked in circumstances where their application could have the effect of perpetuating a miscarriage of justice.

     161. Rogers v The Queen (at 256 – 257) per Mason CJ; (at 273) per Deane and Gaudron JJ.

209. On the primary judge’s approach, even if the appellant’s contentions concerning the proper construction of the 1995 Consent and the 2007 Consent Orders were arguably correct, they should be denied the opportunity to demonstrate their innocence. This is because BBWC (and ergo the individual directors) consented to the 2007 Consent Orders and pleaded guilty to the 2009 contempt charges. In my view that conclusion would bring the administration of justice into disrepute, rather than maintain public confidence in it. As Mason CJ acknowledged in Rogers v The Queen,[162] in some circumstances “public interest in securing the convictions of the appellant is clearly outweighed by other relevant considerations”. This is such a case.

     162. (at 256).

Conclusion

210. Accordingly, I would conclude that the appellants pleaded guilty on the basis of incorrect legal advice that they had no defence to the 2011 contempt charges, whereas it is arguable that on the proper construction of the 2007 Consent Orders, there is a real question about their guilt, and further, that their pleas were not attributable to a consciousness of guilt.

211. The consequence is that the appellants should be permitted to withdraw their pleas of guilt. The alternative is to condone a miscarriage of justice, namely that the appellants will be convicted of a criminal charge of contempt as to which each had an arguable defence. This is an exceptional case in which the public interest in the finality of litigation and in avoiding inconsistent decisions cannot be permitted to perpetuate such a potential injustice.

Orders

212. Three further matters should be addressed before proposing orders.

213. First, the Council submitted that the matter should be remitted for further hearing so that it could tender further evidence if the Court was of the view that the primary judge erred in failing to find that there was an arguable case the appellants had a defence because of ambiguity in Order 1 of the 2007 Consent Orders. I would reject that submission. The Council was on clear notice that the withdrawal application was based in part, on the contention concerning the ambiguity of the 2007 Consent Orders. It had an opportunity to seek to tender relevant evidence before her Honour on that issue. It did not seek to explain why it did not tender such evidence. It should not be given a second chance to do so.

214. Secondly, the appellants’ asked that the matter be remitted to a judge other than the primary judge. The Court has power to make such an order, albeit that it is a power to be “exercised with caution and with respect for the authority of the judicial officer or officers in the court or tribunal below who have authority to assign cases”. [163] One ground for remitting a matter to a differently constituted court or tribunal is where there have already been strong findings about the credibility of a party. [164] This is such a case. [165] Further, in circumstances where the primary judge should, but for waiver, have recused herself, it is inappropriate that her Honour should be involved in any further hearing of the matter. Accordingly, in my view it would be preferable that the remitted hearing be held before another judge.

     163. Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 (at [15]) per Mason P (Ipp JA agreeing); Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268; (2010) 15 BPR 28,563 applying Walker Corporation Limited v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 (at [119] – [121]) per Young JA (Beazley JA agreeing).

     164. Walker Corporation (at [121](5)).

     165. See [191] above.

215. Thirdly, the notice of appeal did not seek an order that the Council pay the appellants’ costs of the proceedings below. In Environment Protection Authority v Forestry Commission of New South Wales,[166] in which Lloyd J concluded that it would be in the interests of justice to permit the defendant to withdraw its guilty plea to three offences against the Environmental Offences and Penalties Act 1989 (NSW), his Honour reserved costs presumably on the basis that they would be determined depending upon the outcome of the hearing. That was the costs order the appellants sought below and, in my view, that is the appropriate order to make in this case.

     166. [1997] NSWLEC 204.

216. I propose the following orders:

1. Appeal allowed.

2. Set aside the orders of Pepper J made on 20 December 2013.

3. Grant leave to Mr Wayne Brown, Mr Gary Brown and Brown Brothers Waste Contractors Pty Limited to withdraw their pleas of guilty to the 2011 contempt charges entered on 21 October 2011.

4. Remit the matter to a judge in the Land and Environment Court other than Pepper J for further determination according to law in accordance with the decision of this Court.

5. Reserve the costs of the withdrawal application for determination by the judge who hears the remitted hearing.

6. Respondent to pay the appellants’ costs of the appeal.

217. MACFARLAN JA: I agree with McColl JA.

218. TOBIAS AJA: I have had the benefit of reading in draft the judgment of McColl JA.

219. I agree with the orders proposed by her Honour for the reasons she has expressed.

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Endnotes

(“Ross”) (at [29]) per Leeming JA (Meagher JA and Tobias AJA agreeing).

Decision last updated: 24 July 2015