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
•20 December 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: 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 Hearing dates: 8 February, 22, 26 and 27 March 2012 Decision date: 20 December 2013 Jurisdiction: Class 4 Before: Pepper J Decision: Leave to withdraw pleas of guilty refused. Amended notice of motion dismissed with costs.
Catchwords: CONTEMPT: applications for leave to withdraw guilty pleas - reliance on alleged incorrect legal advice as to whether terms of consent orders breached - applicable legal principles - principle of finality of litigation - advice correct - pleas made with genuine consciousness of guilt - applications refused. Legislation Cited: Environmental Planning and Assessment 1979, s 76A(1)
Pittwater Local Environmental Plan 1993Cases Cited: Bardsley-Smith v Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34
Brown Bros Waste Contractors Pty Limited v Pittwater Council [2009] NSWLEC 1295
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
Environment Protection Authority v Forestry Commission of New South Wales [1997] NSWLEC 204
Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293
Lawson v The Queen [2011] NSWCCA 44; (2011) 206 A Crim R 557
Lawton v The Queen [2012] NSWCCA 16
Loury v R [2010] NSWCCA 158
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
Piras v The Queen [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 Almirol [2006] NSWSC 898
R v Boag (1994) 73 A Crim R 35
R v Brooks [2007] SASC 35; (2007) 96 SASR 478
R v Davies (1993) 19 MVR 481
R v Foley [1963] NSWR 1270
R v Ganderton (Court of Criminal Appeal, 17 September 1998, unreported)
R v Hawker [2005] NSWCCA 118
R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472
R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233
R v Kouroumalos [2000] NSWCCA 453
R v Liberti (1991) 55 A Crim R 120
R v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337
R v O'Neill [1979] 2 NSWLR 582
R v Parkes [2004] NSWCCA 377
R v Sagiv (1986) 22 A Crim R 73
R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310
Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252
Rogers v Clarence Valley Council [2013] NSWLEC 194
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Rotner v The Queen [2011] NSWCCA 207
Sauer v R [2006] NSWCCA 81
S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151; (2010) 175 LGERA 408
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8) [2013] NSWLEC 168
Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37Category: Interlocutory applications Parties: 40612 of 2007
Pittwater Council (Applicant)
Brown Brothers Waste Contractors Pty Ltd (Respondent)40763 of 2011
40764 of 2011
Pittwater Council (Applicant)
Wayne Gordon Brown (Respondent)
Pittwater Council (Applicant)
Gary Neil Brown (Respondent)Representation: Mr T G Howard (Applicant)
Mr P Tomasetti SC with Ms V McWilliam (Respondents)
King & Wood Mallesons (Applicant)
DG Briggs & Associates (Respondents)
File Number(s): 40612 of 2007, 40763 of 2011 and 40764 of 2011
Judgment
The Respondents Seek to Withdraw Pleas of Guilty to Contempt Charges
By amended notice of motion filed on 3 February 2012 (and further amended during the hearing on 8 February 2012), the respondents, Brown Brothers Waste Contractors Pty Ltd ("BBWC"), Mr Wayne Brown and Mr Gary Brown, respectively, seek leave of the Court to withdraw pleas of guilty entered on 21 October 2011 in proceedings for contempt of Court. The charges arose from a failure to comply with consent orders, in particular order no 1, made by Lloyd J on 9 August 2007 ("the 2007 consent orders").
In short, the respondents argued that, having regard to the proper construction of the 2007 consent orders underpinning the contempt charge, the respondents were in fact allowed to undertake the very activity purportedly giving rise to the breach of order no 1 of the consent orders and that the council's contention to the contrary and the legal advice to the same effect received by BBWC was incorrect. Thus the respondents pleaded guilty on the basis of erroneous legal advice.
In my opinion, the respondents' contention cannot be accepted and the leave to withdraw their guilty pleas should not be granted.
BBWC, Wayne Brown and Gary Brown Carry On a Skip Bin Business
Most of the background facts giving rise to this application were not a matter of controversy and were contained in a statement of agreed facts.
BBWC was commenced as a partnership originally known as "North Shore Waste" in 1983 as a waste business with a garbage compactor operating from the property. In the period from 1983 to approximately 1989, North Shore Waste collected waste from trade and commercial businesses.
Since approximately 1989, Messrs Brown and Brown have been carrying on a waste skip business. 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 transport of the waste to waste facilities and the disposal of the waste for commercial reward ("the business").
Since at least June 1995, the land comprising Lot 23 in DP5497, known as 6 Polo Avenue, Mona Vale ("the land"), has been used pursuant to development consent 95/120 ("the 1995 consent") as part of the business.
Messrs Brown and Brown traded under the registered business names of "Brown Brothers Rubbish Removals" and "Brown Brothers Waste Contractors" between 20 February 1991 and 26 February 1999 and, since 26 February 1999, upon its incorporation, by BBWC.
Since that date, BBWC has operated the business under the control of Mr Wayne Brown and Mr Gary Brown, who, at all times since its registration, have been the only directors and shareholders of BBWC.
In 1995, the trade waste component of the business was sold. From this time, only the skip bin component continued operations from the land.
The land is zoned Light Industrial 4(b1) under the Pittwater Local Environmental Plan 1993 ("the LEP").
The registered proprietors of the land include Messrs Brown and Brown. They have been registered proprietors of the land since 7 February 2006. It is held as tenants in common in equal shares together with two other individuals. Prior to this date, BBWC rented the land. From that date, BBWC has rented the land from Messrs Brown and Brown.
BBWC operates 11 trucks with nine full-time drivers. All trucks in the BBWC fleet are configured to carry skip bins. BBWC's skip bins vary in size from 2m3 to 20m3. BBWC owns approximately 350 skip bins.
BBWC operates the business on the rear portion of the land on the northern side of a creek that runs through it ("the property"). 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.
The land is adjoined by various industrial and commercial buildings, some of which are in close proximity to the boundary of it.
The 1995 Development Consent
On 30 June 1995, the council granted the 1995 consent, subject to conditions, for the use of the property as "a depot for the storage of trucks and waste containers". The applicants for the 1995 consent were Mr Wayne Brown and Mr Gary Brown.
The conditions attached to the 1995 consent were 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] 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. ...
BBWC does not own or operate any compactor trucks in its business operations.
The 2007 Proceedings
On 29 June 2007, the council commenced civil enforcement proceedings against BBWC in the 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 some consequential orders that BBWC comply with particular conditions of the 1995 consent ("the 2007 proceedings").
On 3 August 2007, the council amended its Class 4 application so as to seek an additional declaration that BBWC was using the property for the purpose of a waste management facility and for the storage, sorting and stockpiling of materials or things other than empty skip bins and vehicles without first having obtained development consent and in breach of s 76A(1) of the Environmental Planning and Assessment 1979 ("the EPAA") and an order that BBWC be restrained from so using the property.
Thus the council claimed the following relevant relief:
2 A declaration that the Respondent is 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, accordingly, is in breach of section 76A(1) of the Environmental Planning and Assessment Act 1979.
...
4 An order that the Respondent be restrained from using the Property for the purpose of a waste management facility or for the storage, sorting or stockpiling of any materials or things other than empty skip bins and vehicles.
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.
The terms of consent orders no 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.
Orders no 10 and 11 of the consent orders, which the respondents submit are relevant to the proper construction of order no 2, 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).
A statement filed on behalf of the council, and signed by both parties, listing the matters "said to justify the making of the proposed final [consent] orders", was in the following terms:
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.
At all material times, BBWC was represented by solicitors during the 2007 proceedings, including when it agreed to the making of the 2007 consent orders.
Prior to signing the consent orders, on 8 August 2007, there was a meeting between BBWC's solicitor, Mr Anthony Hudson, Messrs Brown and Brown and a consultant town planner, Mr Laurie Winnacott on the property. A file note by Mr Hudson of the conference noted the following:
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.
Activity on the Property in 2008 and 2009
In the period between 28 February 2008 and 1 April 2009, BBWC continued to use the property for the purposes of a waste management facility and for the storage, sorting and stockpiling of waste materials.
On 3 June 2008, a development application (DA N0237/08) ("the 2008 DA") was lodged with the council. The development application described the intended use of the property 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".
On 26 March 2009, a report to the Development Unit of the council recommended refusal of the 2008 DA. The grounds for refusal stated in the documentation supporting the development application did not clearly describe nor illustrate the way that the proposal would operate in practice in terms of skip storage, processing of waste and vehicle movement paths, and that it was considered likely that the use could not be wholly contained within the building and as such would present a significant environmental impact to the locality due to noise, dust and litter associated with the proposal.
The 2009 Class 1 Proceedings
On 31 March 2009, BBWC filed an application in Class 1 of the Court's jurisdiction appealing the deemed refusal of the 2008 DA.
On 20 April 2009, the 2008 DA was refused by the council.
On 2 July 2009, Bly C upheld BBWC's appeal subject to agreed conditions (Brown Bros Waste Contractors Pty Limited v Pittwater Council [2009] NSWLEC 1295).
The 2009 Contempt Proceedings
On 24 February 2009, BBWC filed a notice of motion seeking variation of order 2 of the 2007 consent orders by deleting "28 February 2008" and replacing it with "28 February 2010", with the effect of seeking to suspend the restraining order in order 1 until 28 February 2010.
On 26 March 2009, the council filed a notice of motion and statement of charge of contempt in the Court ("the 2009 contempt proceedings"). The statement of charge was as follows:
[BBWC] is charged that, as and from 28 February 2009, and continuing, [BBWC] has committed contempt of court, and remains in contempt of court, in that it has acted, and continues to act, in contravention of an order, namely Order 1, made by the Court in these proceedings on 9 August 2007.
On 2 April 2009, there was a hearing before Lloyd J of BBWC's motion to vary the 2007 consent orders so as to seek suspension of order 1 until 30 June 2009.
On the same date, there was a mention of the council's contempt motion in the same proceedings. Mr Wayne Brown was present in Court throughout the proceedings on 2 April 2009.
On 17 April 2009, Lloyd J dismissed BBWC's motion to vary the 2007 orders (Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50).
On the same day, BBWC pleaded guilty to the charge of contempt.
On 27 March 2009 there was a telephone conference between BBWC's solicitor, Mr Hudson, and counsel, Mr Philip Clay. A file note of this meeting dated 30 March 2009 by Mr Hudson, stated that it was the view of Mr Clay of the 1995 consent that:
...it probably doesn't allow storage of containers with material in it and coupled with the way the order was framed previously it may be that you are in contempt of the order if you do have material on site that is stored as it is waste and therefore in a sense part of a waste management facility which you have an injunction against you from doing.
On 22 June 2009, there was a hearing as to the appropriate sentence to be imposed in respect of the guilty plea. Written submissions filed by the council that day contained the following contention:
28. Construction of Order 1. It is plain that order 1 made on 8 August 2007 has two limbs. Even if there be scope for argument about what activities would amount to use "for the purpose of a waste management facility", there is no scope for argument that the respondent has at all material times been forbidden from:
(a) storing,
(b) sorting, and
(c) stockpiling
"materials and things" on the Property. From that prohibition there is carved out one exception, namely, the storage of trucks and waste containers.
29. The following propositions are, it is submitted, incontestable.
(a) First, the order on its face distinguishes "materials and things" and "trucks and waste containers".
(b) Secondly, at the core of the "material and things" the subject of the prohibition is waste.
(c) Thirdly, the order prevents the storage of waste in absolute terms. It does not matter whether the storage is loose on the ground, or in a container; it is forbidden.
30. Yet, seemingly, BBWC contends that storing of waste on the Property, so long as it is in a waste container, is permitted. That contention should be rejected. There is no basis for construing the carve-out, limited as it is to "trucks and waste containers", in a way which subverts the force of the prohibition, so as to permit the storage of waste.
31. Further, the first limb of the order supports that construction. The prohibition upon the use of the land as a waste management facility is wholly consistent with the second limb prohibiting storage of waste in bins. On the other hand, the construction for which BBWC contends is inconsistent with the prohibition upon the use of the land as a waste management facility. For whenever there is regular storage of waste on land (whether in a skip bin or otherwise), then management of that waste (even in a rudimentary fashion) is contemplated.
32. Further submissions will be made following the cross-examination of Mr Wayne and Gary Brown. It may be noted that the respondent, although having pleaded guilty, and facing this hearing as to penalty, has taken no steps to clarify with the Court or the Council whether its conduct of storing waste in waste bins on the property was authorised, and has adopted a course materially different from that contained in Mr Wayne Brown's affidavit of 2 April 2009 where, among other things, he swore (para 11) that:
"Skips that arrive on Monday, Tuesday, Wednesday and Thursday with waste would be taken to the tip on the next day. Skips that arrive on Friday or Saturday would be taken to the tip on the following Monday."
At the hearing, however, Mr Clay, on behalf of BBWC stated the following (22/06/09 T3.25-3.33):
It's not a criticism of Mr Leeming in any sense your Honour, can I put it this way, it is accepted that it is a breach of the order to bring onto the site bins with waste within them and leave them at the site overnight as the case may be or Mr Leeming says one bin might be there for two weeks a particular type of bin. 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.
This caused the foreshadowed construction issue to fall away.
Later in cross-examination Mr Wayne Brown gave the following evidence (22/06/09 T45.18-45.43 and 46.16-46.37):
Q. Mr Brown, do you believe that your company may lawfully bring to its site a full bin of waste and leave it there overnight?
A. I did, but after conversations today, I don't think so.
Q. Do you have any doubt about it?
A. It goes back to the original DA, so, not 100 per cent, no.
Q. My question was, do you have any doubt about it, and do you say that you're not - you don't have an absolutely clear cut view one way or the other? Is that the position?
A. That's right.
Q. Do you think there's some legal uncertainty about whether your company can bring back a full bin of waste and store it on the land overnight?
A. Ambiguity, yes, in the original DA.
Q. Just so that we're clear, my question was addressed to what was lawful by your company, and more precisely I mean, do you think, consistently with the orders, breach of which your company has pleaded guilty to, you can bring back a full bin of waste and store it overnight on the property?
A. Do we believe that? Sorry?
Q. Do you, sir, believe that, consistently with your company's obligation to obey this Court's order, you can pick up a full bin of waste, bring it back to the property and store it there overnight?
A. I don't now, no. Don't now.
...
Q. Now, I understood when, if you remember, Mr Clay asked you some questions about when in your affidavit your company has a state of mind or believes something, that's your personal belief; is that how we're to read this affidavit?
A. Correct.
Q. Well, do you, Mr Wayne Brown, believe today that you're able to store full bins on the property?
A. Well, as I said - yes, but I think that's changed today, after talks with our solicitors.
Q. Well, let's be more precise. At twenty to one this afternoon--
A. No.
Q. So you would no longer maintain what you say in the first sentence of paragraph 18 on page 5 of your affidavit sworn today?
A. Correct.
Q. That's because, is it, you now understand that the orders of the Court prohibit Brown Brothers Waste Contractors from taking full bins of property from customers and storing them overnight on the property?
A. Correct.
In final addresses, Mr Clay submitted that it was not necessary to include any element of personal deterrence in the imposition of an appropriate penalty on BBWC because, albeit belatedly, Mr Wayne Brown, as the mind and will of the company, understood and accepted that it was contempt to store skip bins full of waste on the property (22/06/09 T94.35).
On 9 December 2009, the Court made the following orders in the 2009 contempt proceedings (Pittwater Council v Brown Brothers Waste Contractors Pty Limited (No 2) [2009] NSWLEC 210):
(a) BBWC was convicted of the charge of contempt of Court as particularised in the statement of charge;
(b) BBWC was fined $45,000; and
(c) BBWC was ordered to pay the council's costs of the contempt proceedings up to and including 22 June 2009 - a sum amounting to $105,000.
In Brown Brothers Waste Contractors (No 2) the Court noted the following concerning Mr Wayne Brown's state of mind (at [7], [49] and [57]-[60]):
7 While BBWC pleaded guilty on 17 April 2009, during the course of these proceedings it became apparent that Mr Wayne Brown did not understand that his company was in breach of the Court order by reason of the storage of skip bins containing waste material on the Premises. He gave evidence to this effect notwithstanding that a plea of guilty had been entered in relation to the charge and the charge having been particularised as the storage "of any materials" on the Premises. I shall return to the implications of this belief below.
...
49 However, Mr Brown went on to admit in his affidavit that "full bins stayed overnight on the Property during this period because the company believed and still believes that its able to store full bins on the Property" (emphasis added). Mr Brown also admitted that some of the full bins were stored on the Premises without cover during this period as the company "was not aware it had to cover full bins and is still not aware of any such requirement".
...
57 As referred to above, Mr Brown confessed that until the date of the hearing, he believed that he could lawfully bring full bins of waste onto the Premises. That is to say, it was his view that he was, and always had been, permitted to store bins full of waste material on the Premises. He stated that this belief came from ambiguity with the terms the original DA and the Court order.
58 Mr Brown stated that he had only briefly read the Court orders "sometime ago" but that his interpretation of the orders was that BBWC could store containers with waste on the Premises for an unlimited period of time.
59 Mr Brown went on to claim that he did not understand the letter received from Council at the end of March to mean that the Council was of the view that BBWC could not bring back full skips of material onto the Premises. It was not until sometime subsequent to this letter that he became aware of Council's position.
60 According to Mr Brown, it was his solicitor who told him that pursuant to the Development Consent BBWC could store containers on site with waste in them. Mr Brown stated that his solicitors told him that the order was ambiguous inasmuch as it was not clear whether or not the prohibition against the storage of containers applied to empty or full containers. Mr Brown was unable to give any further details of the advice provided nor identify which solicitor had given this advice. He stated that the advice had been given either immediately after the hearing on 2 April 2009 or the following working day.
Ultimately the Court concluded, however, that (at [67]-[70]):
67 I do not accept that his solicitors gave him the advice that he claims to have received, namely, that the terms of the Court order were ambiguous. The details given by Mr Brown of this very important piece of evidence were too vague for it to be credible. Rather, I find beyond reasonable doubt 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.
68 Had this advice been given, it is unbelievable that in the face of potential contempt proceedings Mr Brown would not have done more to clarify the ambiguity with his legal representatives and would not have sought to err on the side of caution by ensuring compliance with the orders.
69 I find beyond reasonable doubt that Mr Brown chose to continue to receive full skip bins and to store them on the Premises if they could not be taken to the tip the same day 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.
70 I also find beyond reasonable doubt that this decision was taken purely for financial gain. I regard as spurious the distinction between acts of the company motivated by the desire to offer good service and acts of the company motivated by a desire to maintain or increase its business, and therefore, revenue. They are, in my view, one and the same.
At all material times BBWC was represented by solicitors and counsel during the 2009 contempt proceedings.
Activity on the Property in 2010 and 2011
During the period from 12 March 2010 to 24 June 2011 BBWC, on occasion, allowed skip bins containing non-putrescible building waste to be stored overnight on the property. Skip bins containing such waste were observed at the property on the following occasions in the years 2010 and 2011: 13 March; 14 October and 21 December 2010; 4 and 9 January; 5, 6, 10, 17, 19, 26, 27, 28 March; 26 April; 2 May; 11 and 24 June; and 7, 8 and 15 July 2011.
Sometimes, skip bins containing non-putrescible waste matter were observed on trucks on the property.
Waste bins containing non-putrescible waste matter were on the property overnight on 4 January; 26 and 27 March; and 11 and 12 June 2011.
Mr Wayne Brown was on the property at the same time as bins containing non-putrescible waste were observed on it on 28 March and 24 June 2011.
Mr Gary Brown was on the property at the same time as bins containing non-putrescible waste were observed on it on the following occasions: 14 October 2010; 4 January; 28 March; 24 June and 7 July 2011.
On 20 July 2011 the council's solicitors wrote to the Proper Officer of BBWC at its registered address and at the property, and to each of Mr Wayne Brown and Mr Gary Brown at their residential addresses. The letter identified the alleged contempt and requested that BBWC give a written undertaking to immediately cease the use of the property in breach of the 2007 consent orders. The letter also provided each of BBWC and Mr Wayne Brown and Mr Gary Brown in their capacity as directors, the opportunity to make any submissions relevant to the proposed contempt proceedings.
On 26 July 2011 BBWC provided the council with the written undertaking signed by each of its directors that the activity would cease.
But on 2 September 2011 a skip bin containing non-putrescible waste was observed on a truck on the property.
It is not in dispute that throughout the period from 12 March 2010 to 24 June 2011, Mr Wayne Brown and Mr Gary Brown constituted the directing mind and will of BBWC and were actively involved in managing the business carried out by BBWC on the property.
It was also not in dispute that during the period 12 March 2010 to 24 June 2011, Messrs Brown and Brown had knowledge of the 2007 consent orders.
The 2011 Contempt Charges
On 2 September 2011 the council filed a notice of motion and statement of charge for contempt against BBWC and a summons and statement of charge commencing proceedings for contempt against each of Mr Wayne Brown and Mr Gary Brown.
Observations in the brief to counsel noted the history of the matter and the 1995 consent. They relevantly stated that:
(a) the 2007 Class 4 proceedings were initially resolved by consent orders requiring BBWC to submit a development application for the proposed use and that the development application was resolved in the Class 1 proceedings before Bly C;
(b) "the clients' primary concerns are the potential exposure to fines but more particularly, a sequestration order in respect of land owned by the directors and their spouses"; and
(c) that "our clients were surprised with the quantum of the initial contempt penalty".
On 21 October 2011 each of the three respondents entered guilty pleas to the contempt charges.
On 14 December 2011 Mr Wayne Brown affirmed an affidavit in anticipation of the sentence hearing for the contempt charges. Under the heading "Dealing with Asbestos Waste", he deposed to the following (at paragraphs 73 to 86, emphasis added):
73. The terms of trade of Brown Brothers state that asbestos is required to be separated from general waste however, there has been many occasions where Brown Brothers has found asbestos hidden within general waste. The hiding of asbestos within the general waste can be deliberate or unintentional.
74. On those occasions, Brown Brothers have collected full bins and delivered them to a tipping facility. At the facility the bins are emptied and inspected by authorised persons at the facility. When the waste is found to contain asbestos waste, the facility declares the entire load contaminated and the load of waste is reloaded into the skip and the load ordered from the site. The entire' contaminated' load is required to be taken to a facility authorised to receive asbestos waste or it could be returned to the site from which the bin was collected.
75. There are also occasions when the 'contaminated' load declaration is made and time does not allow for the load to be immediately taken to the authorised facility before the close of business on that day. In those circumstances, there is no place to store the loaded bin overnight other than on the site or near the driver's property or on his property.
76. It is conceivable that a Brown Brothers truck could be taken home by the driver with a contaminated load on the tray and arrangements made for its delivery to an authorised asbestos facility the following day. That option is not ideal or desirable.
77. It is also conceivable that the bin could be immediately returned to the property from which it was collected. It is also conceivable that full bins could lawfully be stored on the adjoining site at the Global Self Storage at 2 Polo Avenue Mona Vale.
78. On other occasions, it is found that the bin cannot be returned to the site from which it was collected reasons [sic] of access, objection from landowner (in circumstances where there the hirer was a third-party), or other personal circumstances surrounding the driver of the truck.
79. It was a consequence of these events and the practical means by which Brown Brothers was conducting its business that the Council informed Brown Brothers that bins containing waste could not be stored upon the site. That and other conduct resulted in the Council commencing Class 4 proceedings and the company entering into consent orders not to continue with that practice without consent being granted permitting that activity upon the land.
80. The Development Consent that has been granted by the Court permits the carrying out of the activity of storing bins containing waste and the sorting of waste upon the land to separate recyclables from the general waste once the building works have been completed and an Occupation Certificate granted respect [sic] to those works.
81. For many months, Brown Brothers has sought alternative arrangements for the storage of full waste bins. Following some negotiations, terms have been agreed with Oxford Falls Waste Transfer Station for the sub-lease of an area on that land for a fee (of $400 per week/$1,733.00 per month) for the storage of bins on a month to month basis. Brown Brothers has a key to access that area and can do so 24 hours a day 7 days a week.
82. Having entered into consent orders, Brown Brother did come under pressure to leave loaded bins overnight or for short periods on the site in breach of the Court's orders.
83. At the time of the hearing of proceedings 40612 of 2007, it was my understanding that the Council's concerns were in respect to the sorting of waste upon the site. It was also my understanding that the dispute was whether Brown Brothers could sort bins on site and that Brown Brothers was asking in those proceedings for an extension of time to continue that activity until such time as the development application was determined.
84. I now know that was not the case.
85. In those proceedings I gave oral evidence that Brown Brothers would be able to manage to run the business without storing full bins on site. At the time I said this, it was an immediate response to the questions that were asked of me. In hindsight, I think I was unprepared for that type of question and I did not think the questions through before answering. I was overwhelmed with the Court proceedings and not comfortable in the Court environment. I did think at that time that we could operate without keeping full bins on site. In reflecting on my evidence, I did not have enough time to really give it enough consideration.
86. Compliance with the Court's orders has proved to be difficult.
In that affidavit, Mr Wayne Brown observed the following in respect of the fine and legal costs incurred by BBWC consequent upon the 2009 contempt proceedings (at paragraphs 89 to 92):
89. As a consequence of the breach of the Court's orders, Brown Brothers was found to be in contempt and punished by a fine and a heavy penalty in respect costs [sic] - both its own costs and the costs of the Council. The total costs of the Land and Environment Court proceedings was as follows:
Land and Environment Court fine:
$45,000.00 paid on 20 January 2010
Pittwater Council's Legal Costs:
$96,000.00 paid in two instalments, the second being paid on 28 September 2010
Class 4 costs:
$46,000.00 paid in February to June 2009
90. Brown Brothers paid its own legal fees in the 2009 financial year through the family partnership. The Court fine of $45,000.00 was paid in the 2010 financial year through the family partnership. Pittwater Council's legal fees were paid in the 2011 financial year also through the family partnership. These amounts were paid by additional borrowings by the family partnership.
91. The payments made by the family partnership or Brown Brothers is a capital expenditure not revenue expenses. This means that the expenses are not a deduction for the financial year in which they are incurred and will not be realised until the property at 6 Polo Avenue is sold. This has resulted in a negative cash flow. The family partnership has made further borrowings to meet this negative cash flow.
92. Brown Brothers has paid off the costs and fines of those proceedings by reimbursing the family partnership.
On 1 February 2012 the respondents notified the council that they would seek to change their pleas to the contempt charges. The circumstances giving rise to their change in position are set out below.
Evidence of the Respondents
Plainly enough the onus of satisfying the Court that leave ought to be granted to withdraw their guilty pleas rests on the respondents. In this regard, the respondents relied upon affidavits affirmed by Mr Wayne Brown on 21 February 2012 and affirmed by Mr Gary Brown on 14 February 2012. Mr Damien Briggs, the solicitor on the record for the respondents, also swore two affidavits on their behalf on 3 and 7 February 2012.
In his first affidavit, Mr Briggs deposed to the fact that on 22 October 2011 he was instructed to enter an early plea in response to the statement of charge particularised in the notice of motion and summonses for contempt filed against the respondents. He states that the instructions he received were based "to a large extent upon the decision" in Brown Brothers Waste Contractors (No 2) and the following affidavits filed by the council:
(a) the affidavit of Mr Steven Larsen, the council's compliance officer, sworn 12 August 2011;
(b) the affidavit of Mr Gary Ellis, a tenant of land adjoining the property, sworn 14 October 2011; and
(c) the affidavit of Mr James MacPhail, the director of a company owning land adjoining the property, sworn 14 October 2011.
Mr Briggs further stated that Messrs Brown and Brown were mindful of the potential cost consequences of a contested hearing particularly in light of penalty and legal costs awarded against BBWC in Brown Brothers Waste Contractors (No 2).
Mr Briggs deposed that subsequent to entering the plea he was instructed to undertake "extensive investigations" with respect to the activities upon the property carried out by the three respondents. In addition to conferencing with Messrs Brown and Brown, in early November 2011 Mr Briggs briefed a clinical psychologist to prepare reports with respect to both respondents. Draft affidavits were also prepared for the proceedings on behalf of the respondents.
However, on 1 February 2012 following a conference with senior counsel, Mr Briggs wrote a letter to the solicitors for the council advising it that he was instructed to seek leave to withdraw the pleas of guilty entered by each of the respondents in relation to the contempt charges. The basis of the application was as follows:
... that the development consent 95/120 on its true construction permits the use of the site as depot [sic] 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 bought 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.
In his subsequent affidavit, Mr Briggs clarified the evidence that he gave in his first affidavit by stating that in the proceedings before the Court on 22 June 2009 he did not represent BBWC. He states that he did not commence to formally act in the proceedings until the first week in September 2011, although he acknowledged that he had previously had telephone discussions with the respondents and had provided some preliminary advice to them in July and August 2011.
Mr Briggs went on to depose that after formally being retained by the respondents he obtained copies of documents from their previous solicitors, but that these documents neither included the judgment of the Court dated 9 December 2009 nor a copy of the 1995 consent.
Upon obtaining and reading a copy of that judgment he formed the view that the respondents were in breach of the 2007 consent orders. He noted in this regard that Mr Wayne Brown had given evidence in the 2009 contempt proceedings to the effect that he had been given legal advice that the keeping of waste bins overnight on the property that contained building waste was lawful but that as he had not called evidence to support this assertion, the Court had not accepted it.
Upon reading the affidavit evidence prepared by the council with respect to the contempt charges, Mr Briggs obtained instructions from Mr Wayne Brown and Mr Gary Brown that waste bins containing building waste had in fact been kept on their property overnight. He therefore formed the view, based on Brown Brothers Waste Contractors (No 2), that the respondents had carried out the same activity that was the subject of consideration by the Court in the judgment that had resulted in a conviction and the imposition of a significant penalty. Thus, prior to the day on which the respondents entered pleas of guilty, he gave his clients "certain advice". Based on that advice, senior counsel was briefed to enter the pleas, which is what occurred.
It was not until 24 November 2011 that Mr Briggs obtained for the first time a copy of the 1995 consent in its entirety. On this occasion, however, he did not examine the plan attached to the consent. Indeed, Mr Briggs candidly admitted that he "did not at any time examine" the 1995 consent to consider whether the keeping of the waste bins containing building waste overnight on the property was permitted under its terms. Rather, he formed the opinion that it was not directly relevant to the imminent proceedings before the Court "given the terms of the judgment of the Court on 9 December 2009".
It was not until a conference with senior counsel on 1 February 2012 that Mr Briggs first properly read the 1995 consent. It was only "upon reading it" that he considered whether the consent authorised the keeping of waste bins overnight on the premises that contained building waste. He immediately wrote the letter to the solicitors for the council advising that the respondents would seek to withdraw their pleas of guilty.
Leave was permitted to adduce further oral evidence in chief from Mr Briggs as to the advice he gave the respondents on 21 October 2011, prior to the respondents pleading guilty. Having read Brown Brothers Waste Contractors (No 2) and having assumed that the conduct the subject of that decision was the same conduct the subject of the contempt charges, he advised the respondents that "there was really no alternative but a plea of guilty" (T24.47). There was, astonishingly, no written record of the proffered advice or the respondents' instruction to him to plead guilty.
Mr Briggs was cross-examined. He conceded that as a result of reading Brown Brothers Waste Contractors (No 2), including [67], he was aware of Mr Wayne Brown's belief that the terms of the 2007 consent orders and the 1995 consent permitted the storage of skip bins containing building waste on the property, but went on to state that in his view this belief was incorrect and did nothing to investigate it further.
At this point it is convenient to note that the proceedings adjourned part-heard, which enabled not only Mr Gary Brown and Mr Wayne Brown to affirm affidavits in respect of the application, on 14 February and 21 February 2012 respectively, but also for a subpoena to be issued to Mr Briggs for records recording his advice to the respondents to plead guilty.
Leave was given to recall Mr Briggs to be cross-examined further. The cross-examination revealed that:
(a) Mr Peter Tomasetti SC was briefed in the matter on 27 September 2011, that is to say, prior to the entry of the guilty pleas on 21 October 2011;
(b) notwithstanding conferences with, and communications between, himself and Mr Tomasetti SC concerning the contempt charges, and notwithstanding that Mr Tomasetti SC was instructed to enter the pleas, no advice was sought from that counsel as to whether or not the respondents ought to plead guilty to the charges prior to the guilty pleas being entered, that is to say, as to whether or not the charges could be defended; and
(c) as he had previously stated, no written record was made of the advice that he gave to the respondents to plead guilty to the charges.
According to Mr Gary Brown's written evidence, it was his brother, Mr Wayne Brown, who primarily liaised with their solicitor, Mr Briggs. Mr Gary Brown deposed that he had assumed that because the council had served him with formal papers, the council was taking them "back to Court for sorting, stockpiling and storing full waste bins" on the property contrary to the previous consent orders and that this meant they were not allowed to do that. He was aware in mid October 2011 that Mr Briggs would enter pleas of guilty on behalf of himself, his brother and BBWC to the charges.
However, in February 2012 Mr Gary Brown recalled a telephone conversation between Mr Briggs, his barrister, Mr Tomasetti SC, and his brother, wherein Mr Tomasetti advised him that he should withdraw his plea of guilty. He stated that the only reason he pleaded guilty to the charge was because he believed he had no defence and that he "believed that the Council would not take proceedings against us unless it was right". He stated that he knew "nothing about legal matters like this" and that he was "guided by the legal advice I get from my solicitors".
Under cross-examination, Mr Gary Brown reiterated that at all material times, it was his brother, Mr Wayne Brown, who was the person primarily dealing with legal matters and instructing lawyers on behalf of the three respondents. He agreed, however, that when a plea of guilty was entered on his behalf by Mr Tomasetti SC, he believed that he was guilty of the offence of contempt of court and that the storage of waste material in bins on the property was prohibited. Further, he knew that by pleading guilty it would save "time in the Court" and therefore legal costs.
In his affidavit Mr Wayne Brown stated that in 2007 BBWC had engaged Wilshire Webb Staunton Beattie ("WWSB") to advise it in relation to the proceedings commenced against it by the council in respect of breach of the 1995 consent. In the 2007 proceedings, BBWC was represented by its solicitor, Mr Hudson, employed by WWSB, and Mr Clay, of counsel, as discussed above. It was Mr Hudson who signed the consent orders on behalf of BBWC.
In 2009, when the council brought the contempt proceedings against BBWC, Mr Wayne Brown sought advice from Mr Hudson and Mr Clay. BBWC consequently pleaded guilty to the charge of contempt.
Subsequently, BBWC and Mr Wayne Brown and Mr Gary Brown engaged Mr Briggs to advise them in relation to the current contempt proceedings. It was Mr Wayne Brown's understanding that the proceedings concerned "much the same conduct" as that which had resulted in the charge and sentence in 2009, in short, the bringing onto, and the storing of, waste on the property. Based on the material contained in Mr Larsen's affidavit and advice from Mr Briggs, Mr Wayne Brown believed that he had no defence to the charge and that he should plead guilty. Mr Wayne Brown further stated that he was determined to keep the cost of the proceedings at a minimum given the legal costs incurred on the last occasion and in order to engender "leniency" from the Court. Thus, unwilling to protract the proceedings in any way and relying on Mr Brigg's advice that there was no defence to the charge of contempt, he instructed Mr Briggs to plead guilty on his behalf.
It was not until a telephone conference between himself, Mr Briggs, Mr Tomasetti SC and his brother in early February 2012, that he understood that it was arguable that the 2007 consent orders did not prevent the keeping of non-putrescible waste on the property in skip bins overnight. Accordingly, upon receipt of advice from Mr Briggs and Mr Tomasetti SC, he instructed them to change his plea.
Mr Wayne Brown was also cross-examined. He agreed in respect of the 2009 contempt proceedings that:
(a) after the council commenced the contempt proceedings but before he gave evidence on behalf of BBWC, he formed the view that the 2007 consent orders were ambiguous and might permit the storage of full waste bins on the property; and
(b) as at the date of the hearing on 2 June 2009, this belief changed as a result of legal advice from Mr Hudson and Mr Clay.
Mr Wayne Brown stated that at the time he retained Mr Briggs to act for him he believed that he was guilty of the foreshadowed contempt charge by the council because "we had full skip bins in the yard again" (T150.46). He decided to plead guilty to minimise costs, minimise any fine and because "we had no defence" (T151.21). He denied that during the 2007 proceedings he discussed with his lawyers the proper construction of the 1995 consent and maintained the view that the first time that he was told that it was arguable that the orders of the Court did not prevent BBWC from keeping non-putrescible waste on the property in skip bins or otherwise was during the conversation between himself, Mr Briggs and Mr Tomasetti SC in early February 2012.
Mr Wayne Brown agreed that on 8 August 2007, the day prior to the signing of the 2007 consent orders, he attended a meeting with his brother, Mr Hudson and Mr Winnacott, where he "went through all of the consent orders that you were proposing to sign off on" on 9 August 2007 (T156.21). He accepted that at the meeting Mr Hudson indicated to him that it was important that he understood the consent orders and the significance of agreeing to them.
Mr Wayne Brown also accepted that on 22 June 2009 he had turned his mind to the question of what activities the 1995 consent permitted and what activities it prohibited him from undertaking on the property (T158.19) and that as at that date "he had a belief as to an ambiguity in the development consent" (T160.47 and similarly at T161.11).
Legal Principles Applicable to the Withdrawal of a Plea of Guilty
By a plea of guilty a person admits the essential ingredients of the offence charged and "no more" (R v O'Neill [1979] 2 NSWLR 582 at 588B and 596C; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 605B and Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 510). But this does not mean that the person is taken to admit all of the facts and particulars supporting the charge (O'Neill at 596D-596F and Chow at 605B-605D).
Of course a person may plead guilty for reasons that extend beyond that person's belief in his or her guilt and the Court is nevertheless entitled to act upon it. In Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, Brennan, Toohey and McHugh JJ stated (at 141):
A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guiIty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.
Similarly Dawson J opined that "a person may plead guilty...for all manner of reasons... to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty" (at 157). The entry of a plea of guilty in such circumstances will nevertheless constitute an admission of all of the essential elements of the offence (see also Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129; (2005) 155 A Crim R 37 at [33]).
The following legal principles applicable to a grant of leave to withdraw a plea of guilty have been stated in various cases and are uncontroversial. First, a court has a discretion to permit a change of plea at any time prior to sentence (Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 335; Chow at 599 and R v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337 at [4]). Second, whether a plea is allowed to be withdrawn is entirely a matter for the discretion of the Court (R v Foley [1963] NSWR 1270 at 1272 and Piras v The Queen [2006] NSWCCA 396; (2006) 167 A Crim R 260 at [15]). Third, courts have emphasised that such applications must be approached with caution given the public interest in the finality of litigation (R v Liberti (1991) 55 A Crim R 120 at 122 and R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233 at [31]). 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 (R v Sagiv (1986) 22 A Crim R 73 at 80; Piras at [18] and Lawson v The Queen [2011] NSWCCA 44; (2011) 206 A Crim R 557 at [32]). 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 (Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [26] citing R v Parkes [2004] NSWCCA 377 at [49]).
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 (Liberti at 121-122; R v Boag (1994) 73 A Crim R 35 at 39; KCH at [32] and Piras at [18]. In R v Kouroumalos [2000] NSWCCA 453 Wood CJ at CL stated (at [19], and quoted in Rotner v The Queen [2011] NSWCCA 207 at [47]):
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...
In R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 (adopted in Sauer v R [2006] NSWCCA 81 at [8] and Loury v R [2010] NSWCCA 158 at [100]), Spigelman CJ set out a number of circumstances in which a court will set aside a conviction following a plea of guilty (at [32]). Notwithstanding that the present application is made prior to conviction, the circumstances referred to in Hura are nevertheless apposite:
32 The second ground of appeal alleges a miscarriage of justice. There are exceptional cases in which this Court will set aside a conviction following a plea. The relevant authorities have recently been considered in this Court in Toro-Martinez (2000) 114 A Crim R 533. A number of circumstances have been identified when this Court will act, notwithstanding a plea of guilty:
where the appellant "did not appreciate the nature of the charge to which the plea was entered": Ferrer-Esis (1991) 55 A Crim R 231 at 233.
where the plea was not "a free and voluntary confession": Chiron (at 220 D-E)
the "plea was not really attributable to a genuine consciousness of guilt": Murphy [2965] VR 187 at 191.
where there was "mistake or other circumstances affecting the integrity of the plea as an admission of guilt": Sagiv (1986) 22 A Crim R 73 at 80.
where the "plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt": Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995).
the "plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt": Maxwell at 511; 186-187.
if "the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt": Davies (1993) 19 MVR 481. See also Ganderton (unreported, Court of Criminal Appeal, NSW, No 60364 of 1998, 17 September 1998 and Favero [1999] NSWCCA 320.
To this list, the Court in R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229 added the following (at [49]):
49 To the cases cited should be added reference to Regina v. Iral [1999] NSWCCA 368 in which the failure of the appellant to appreciate the nature of the charge and difficulties with an interpreter lead to the appeal being upheld; Regina v. Wilkes [2001] NSWCCA 97 where the advice of trial counsel to enter the plea was held to be imprudent and inappropriate thus occasioning a miscarriage of justice; Regina v. McLean [2001] NSWCCA 58 in which senior counsel's inappropriate advice on the applicant's ability to challenge a relevant matter of fact occasioned a miscarriage of injustice; Regina v. KCH [2001] NSWCCA 273 involving improper pressure by counsel and Regina v. Becheru (CCA, unreported 6 April 2001) and Regina v. Toro-Martinez (2000) 114 A. Crim. R. 533.
And in Kouroumalos the Court said (at [16] and [17]):
16 Before the Court will go behind a plea of guilty, and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred: Chiron (1980) 1 NSWLR 218 at 231. That may occur for example, where in offering a plea, the applicant did not appreciate the nature of the charges, or did not intend to admit his or her guilt, or where the applicant, on the admitted facts, could not in law have been convicted of the offences charged: Liberti (1991) 55 A Crim R 120 at 121-122, and see also Foley (1963) 80 WN 726 and Caruso (1988) 37 A Crim R 1.
17 It might also occur where an accused has entered a plea of guilty after a trial Judge has erroneously decided to admit evidence that would be fatal to the defence, as was the case in Chiron; or where an accused is induced by threats from a fellow accused or police officer to plead guilty where otherwise he or she would have pleaded not guilty: Murphy (1965) VR 187 at 190; or where an accused is persuaded to enter a plea of guilty by reason of imprudent and inappropriate advice tendered to him or her by legal representatives; Favero [1999] NSWCCA 320 and Whitehead [2000] NSWCCA 400, or by the Court: Davey NSWCCA 3 March 1995.
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]):
48 That concept goes back at least to R v Murphy [1965] VR 187. In that case, Sholl J said, in a passage that has been widely quoted since:
"I should be disposed to agree that if [the applicant] pleaded guilty through a misapprehension of the law, e.g. a misunderstanding of what she was pleading to, or what constituted the crime charged, or for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt, an issuable question of guilt would be sufficient to warrant the ordering of a new trial." (p 191)
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.
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.
The Court went on (at [59]) to distinguish the decision of R v Davies (1993) 19 MVR 481 on the facts, but repeated the frequently quoted and endorsed passage by Badgery-Parker J in that case:
59 The reliance placed upon Davies stemmed from the circumstance that that appellant, like the present applicant, had no recollection of the events giving rise to the charge. However, the crux of the decision was a body of evidence (of which the appellant was at the time of the plea ignorant) calling in question contrary evidence that he had been the driver. Of itself, lack of recollection was not the basis for the decision. In another passage that has been widely quoted, Badgery-Parker J (with whom Wood and Mathews JJ agreed) said:
"If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought be set aside and a new trial ordered if (but only if, and the onus lies upon the appellant) it is clear that there is, in the words of Sholl J [in Murphy ], 'an issuable question of guilt' - to put it more simply, there is a real question to be tried. If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial."
The gravamen of the present application is, according to the respondents, the incorrect or inadequate legal advice given to them by their legal advisers to the effect that the 1995 consent did not permit the storage of non-putrescible waste on the property. Put another way, the respondents submitted 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.
Survey of the Relevant Case Law
As the principles above demonstrate, a person who was persuaded to enter a plea by reason of imprudent, inappropriate and incorrect advice given by his or her legal representative may be grounds for withdrawal of a plea of guilty.
The parties spent a considerable amount of time referring the Court to a plethora of decisions illustrating the application of the legal principles articulated above, both generally and in the context of the provision of erroneous legal advice. The cases were thoroughly parsed, analogised and distinguished.
While each of these decisions turned on its own facts and circumstances, it is nevertheless instructive to examine some of the cases that the Court was taken to concerning applications to withdraw pleas of guilty on the basis of the provision of incorrect legal advice.
In Boag the content of the initial legal advice was insufficient to permit the applicant to change his plea when he appeared for sentence on a charge of maliciously inflicting grievous bodily harm with intent with counsel different to the counsel present when he entered his plea of guilty. The Court held that there had been no new material produced by the applicant since his plea that placed a different complexion upon the material in his possession at the time of his plea. All that had occurred was that different counsel had given the applicant "more favourable advice" as to the jury's likely reaction to that material (at 39). Because the applicant made a "deliberate and fully informed choice to plead guilty" and the subsequent advice did no more than "change his mind as to the inevitability that he would be found guilty" it was held that the later advice did not alter his recognition of his own guilt and leave to withdraw the guilty plea was refused.
The defendant in Environment Protection Authority v Forestry Commission of New South Wales [1997] NSWLEC 204 was charged with five counts of contravention of conditions of a pollution control licence and entered a plea of guilty to all five charges but later sought to withdraw its plea to three of the charges. The Court permitted the defendant to do so due to a lack of specificity on the part of the prosecutor in respect of one of the charges giving rise to a lack of clarity as to the construction of the licence conditions and the facts relied upon by the prosecutor to constitute the offence and the absence of any evidence as to the suitability of soil conditions, which was relevant to two of the charges.
In R v Ganderton (Court of Criminal Appeal, 17 September 1998, unreported), the appellant pleaded guilty and was committed for sentence in respect of three offences of aggravated dangerous driving occasioning grievous bodily harm. The appellant was represented by a solicitor who purported to be a criminal law specialist. On appeal, he applied to withdraw his plea of guilty because of he had not been advised of the existence of a statutory defence that was available to him by reason of his excessive consumption of alcohol. The solicitor deposed to having considered the defence but rejected it and advised the appellant to plead guilty. At no stage did he advise the appellant to defend the matter. The Court (Sperling and James JJ, Sully J dissenting) concluded that the appellant had an arguable defence of which he was not advised, and therefore, there was no genuine consciousness of guilt when the appellant pleaded guilty to the charges and a miscarriage of justice had resulted.
In Kouroumalos the appellant had pleaded guilty to knowingly taking part in the manufacture of a prohibited drug, namely, methylamphetamine, and the deemed supply of that drug. On appeal he sought to withdraw the plea on the basis that by reason of the advice of his legal representative, he was denied the opportunity of placing before the Court his evidence of the role he played in the acts giving rise to the offences. The Court held that he received competent and correct legal advice as to the undesirability of giving evidence and elected to follow it and that he knowingly offered the pleas of guilty with an appreciation of all matters relevant to that decision.
The decision in Kouroumalos was discussed in R v Wilkes [2001] NSWCCA 97; (2001) 122 A Crim R 310. After referring to that case, and others, Wood CJ at CL (with whom Giles JA at [52] and Simpson J at [53] agreed), reiterated the principle of restraint expressed in Liberti in respect of such applications and articulated the following principles (at [20]):
20 The principles established by these decisions are now settled. As a consequence, the present appeal hinges upon three considerations:
(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.
Wilkes concerned an appeal against a decision of a trial judge not to grant leave to withdraw a plea of guilty to an applicant indicted on a count of murder. The plea had been entered during the trial on the advice of counsel who later conceded that his advice had been incorrect on the merits of the case. The advice was given following what was seen to be damning evidence by the accused's brother to the effect that he had seen the accused hitting the deceased with a wooden paling. An opportunity to cross-examine various eyewitnesses to the effect that he had been consuming alcohol and was intoxicated or was unconscious, was not pursued. The Court found that the plea was entered solely because of the advice received and hence the plea was not one attributable to a genuine consciousness of guilt.
The decisions of R v Hawker [2005] NSWCCA 118 and R v Almirol [2006] NSWSC 898 were both decisions where the Court upheld an appeal against conviction based on a plea of guilty in circumstances where the appellant pleaded on the basis of advice that was legally incorrect. In the former the appellant had pleaded guilty in circumstances where his solicitor had led him to believe he was guilty by reason of the solicitor's misconception of the elements of the offence charged. The appellant had never given any instructions to the solicitor indicating that he had the necessary intent to prove the charge and in fact had always denied it. In the latter, while the accused received correct advice from his solicitor, his grasp of English was poor and he was not familiar with the legal system in New South Wales. He was permitted to withdraw his plea of guilty in circumstances where, in respect of a charge of murder, he had encouraged by his presence and words the murder but had played no active role in the actual killing.
In Norvenska, the applicant was charged with defrauding a Commonwealth public authority by altering Medicare assignment forms in order to claim higher benefits. At the commencement of the trial he was represented and pleaded not guilty. Additional material and an additional witness statement was then served by the prosecutor and following an adjournment and a meeting with his legal counsel, the applicant changed his plea to guilty. Prior to the sentence hearing, however, the applicant indicated that he wanted to change his plea again. His application to do so was refused and he appealed that decision. The central issue on appeal was whether the applicant had received inadequate legal advice as to the element of intention of the offence, with the result that his plea of guilty had been entered on the basis of a misunderstanding of the law. The advice given was to the effect that the applicant should consider pleading guilty because, in the opinion of the legal representative, he was likely to be convicted because "he had filled in all the incorrect forms and he knew that to do so was wrong" (at [17]). At the appeal the applicant submitted that either the wrong advice had been given or the advice had been misunderstood.
Justice Basten (with whom Grove and Howie JJ agreed: at [41] and [42] respectively) commenced by noting that (at [22]):
22 Where advice is obtained, it will often be accepted, although sometimes with reluctance. There are two cases where guilty pleas may eventuate despite a difference of view between lawyer and client. In one category, the accused insists on pleading guilty, despite the advice of the lawyer that he or she is likely to be acquitted if the matter proceeds to a trial. The other category is where the lawyer is convinced that the client is unlikely to be acquitted and that it is in the client's best interest to plead guilty, but the advice is not accepted. Whatever the circumstances, the person charged may later seek to change a plea.
The Court dismissed the appeal, finding on the evidence that the appellant was not ignorant of the elements of the offence nor that his legal representative had advised him on a mistaken basis as to the law. In short, he made a choice after having received appropriate and properly considered legal advice (at [39]).
The decision of R v Brooks [2007] SASC 35; (2007) 96 SASR 478, referred to by all parties, was to not dissimilar effect. In that case, Ms Brooks confronted with a powerful prosecution case, pleaded guilty but subsequently realised that there was a version of facts which if accepted by the jury as a reasonable possibility, might have meant that she would not be found guilty. The fact remained, however, that she pleaded guilty knowing what she was doing (at [67] and [70]). Her appeal against a decision refusing her leave to withdraw her plea was dismissed.
By contrast, in Loury the appellant was successful in his appeal. In that case, the appellant had pleaded guilty to assault occasioning actual bodily harm with a weapon where his solicitor had told him on the day of the hearing to do so because "I've made it so you'd take some charges, little ones, for your brother so he doesn't get the maximum penalty. Don't worry. All you will get is a slap on the wrist, a suspended sentence". In part, the solicitor gave this advice based on an erroneous belief that the appellant had provided the weapon, a baseball bat, to the appellant's brother (who committed a number of assaults with it), when in fact the appellant had merely hidden it in some bushes for the purpose of self-defence. He was not aware that his brother would use it. This version of events was consistent with a pre-sentence report but inconsistent with an Agreed Statement of Facts (which was not as favourable) given to the sentencing judge but not shown to or discussed with the appellant, and in respect of which he did not give instructions for its tender. The appellant was given a custodial sentence. In all of these circumstances, the Court readily concluded that the appellant's plea was not a true acknowledgment of guilt and a serious miscarriage of justice had occurred.
Lawson concerned an attempt to withdraw a plea of guilty after sentence on the basis that the applicant had been misinformed by his counsel as to the date upon which the conspiracy with which he had been charged was alleged to have arisen. The Court rejected the application given that on the facts it was clear that the applicant had pleaded guilty during the trial after the trial judge had, on a voir dire, admitted recorded conversations wherein he had made inculpatory statements. Thus he had made his decision aware of his options and recognising his guilt.
In Rotner the appellant stated that he had entered a plea of guilty to a charge of wounding with intent to cause grievous bodily harm because he had been advised to do so on the basis of the strength of the Crown case and that a plea of guilty was likely to achieve a reduction in sentence. He later sought to withdraw the plea because he had been "frightened" into pleading guilty by his legal advisors in circumstances where: a view had been formed of the evidence that was "entirely at odds with" the view of subsequent legal advisers; where alternative defences, including a mental health defence, had not been discussed with him prior to entering the plea, especially in circumstances where he could not recall the events constituting the actus reus of the offence; and that by reason of his mental health issues there was an absence of consciousness of guilt.
More specifically, the complaint about the legal advice given to the applicant was three-fold (at [45]):
45 The complaint about the legal advice given to the applicant had a number of strands. It was said that the applicant was "misadvised" or not properly apprised of all the relevant facts prior to the entry of the plea; that the applicant was not properly advised of weaknesses in the identification evidence; that the advice placed disproportionate weight on the significance of Mr Roland's accounts of the events in this interview; that the inadequacy of the advice was "compounded" by the late service by the prosecution of Mr Roland's interview; and that Ms Harris' advice that the Crown case was "overwhelming" was inappropriate, particularly in that she did not properly advise the applicant in respect of issues of specific intent, or other possible defences, such as self-defence.
Mr Roland was a person (not charged with any offence) who pulled the applicant off the victim and who was subsequently interviewed by the police.
The Court concluded, however, that there was neither a body of evidence of which the applicant was ignorant that could call into question his guilty plea nor anything to suggest that the advice was imprudent or inappropriate. To the contrary, the advice given by the applicant's previous legal adviser was both sound and correct. The applicant's plea of guilty was entered out of an acceptance of guilt even in the absence of a recollection of what he did (at [62]-[63] and [73]).
Finally, and more recently, the Court of Criminal Appeal in Lawton v The Queen [2012] NSWCCA 16 granted leave to withdraw the plea of guilty entered by the applicant because it was found that he did not appreciate the nature of the charge and consequently did not intend to admit his guilt. The lack of appreciation arose as a result of incorrect legal advice that he was guilty for "anything that happens as a consequence" of throwing a punch during a melee that inadvertently hit the victim, an innocent bystander who had attempted to stop the fight. The applicant pleaded guilty to recklessly causing grievous bodily harm to the victim but in an affidavit he stated that he had not contemplated or foreseen that one punch would cause any really serious injury, contrary to the mental element required for the offence to which he had pleaded guilty. In granting leave to withdraw the guilty plea, the Court noted that, during the appeal, the Crown conceded that the applicant did not appreciate the nature of the charge.
Leave Should Not Be Granted to Withdraw the Pleas of Guilty
Applying the legal principles referred to above to the factual circumstances giving rise to the pleas of guilty entered by each of the respondents in this application, in my opinion, leave to withdraw the guilty pleas ought not be granted. There are principally three reasons for the refusal, which are elaborated upon further below:
(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.
Upon Their Proper Construction the 2007 Consent Orders Do Not Permit the Storage of Non-Putrescible Waste On the Property
The respondents submitted that the proper construction of the 2007 consent orders permitted the storage of non-putrescible building waste on the property and that as a consequence the contempt charge, and their pleas of guilty, ought to be withdrawn. The respondents 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". They argued 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.
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 (see S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 151; (2010) 175 LGERA 408 at [59]-[61]; Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252 at [21]-[26] and Bardsley-Smith v Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34 at [66]-[67]), 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.
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.
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.
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.
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.
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.
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.
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' of 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.
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.
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)).
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.
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).
There is No Justifiable Basis for the Court to Go Behind the 2007 Consent Orders
In respect of the 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, just as defendants plead guilty for "all manner of reasons" in criminal matters unconnected with whether or not the person is in truth guilty of the offence, likewise respondents in civil cases, including civil enforcement proceedings, agree to settle on terms that may not directly relate to the narrow issues joined between them. Financial factors, such as the avoidance of legal costs, or emotional factors, such as the avoidance of anxiety and stress associated with litigation, are often powerful inducements to settle terms that may appear initially on their face to be unfavourable or unreasonable.
For the Court to second guess the parties' motives for agreeing to particular terms of settlement would be to undermine the important public interest in the principle of the finality of litigation (for a relevant discussion of this principle, albeit in a civil context, see Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8) [2013] NSWLEC 168 at [14]-[18] and Rogers v Clarence Valley Council [2013] NSWLEC 194 at [48]) and would, in my opinion, in the absence of any evidence of fraud, bad faith, illegality or irregularity, impermissibly invite the Court to go behind the making of orders consented to by the parties (who were legally represented at the time) and long since entered. Tellingly, 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).
Having 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.
A further difficulty with endorsing the approach advocated by the respondents is the potential for "the scandal of conflicting decisions" of the Court (Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 280 per Deane and Gaudron JJ), or at the very least, conflicting factual findings, in respect of these proceedings and the 2009 contempt proceedings.
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).
The Pleas Were Attributable to a Genuine Consciousness of Guilt and There Are No Circumstances Affecting Their Integrity
Having regard to the detailed factual chronology set out above and the evidence of the respondents, in my opinion, the pleas of BBWC, Mr Wayne Brown and Mr Gary Brown may be characterised as genuine admissions of guilt in possession of all the relevant facts and were not the result of reliance on imprudent or inappropriate legal advice.
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.
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.
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.
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.
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.
Analogous to the decisions in Boag and Brooks, what has occurred is that a different counsel has given the respondents "more favourable advice" that there was an arguable defence, the subject-matter of which at least two of the three respondents had previously turned their minds to.
The Forestry Commission case and Ganderton, upon which considerable reliance was placed by the respondents, are, in my opinion, distinguishable if on no other basis than the fact that in the present case it cannot be said that the respondents were not aware of the potential defence they now seek to avail themselves of, namely, that the 1995 consent, and thus arguably the 2007 consent orders, permitted the very act upon which the contempt charge is premised. Furthermore, for the reasons stated above, I do not consider that the 2007 consent orders lack clarity as to their construction.
The respondents relied upon Ganderton to further argue that all that was required to compel the exercise of the Court's discretion to grant leave to withdraw the pleas of guilty was the existence of an arguable defence, in this case, that in fact no breach of order 1 of the 2007 consent orders has occurred upon its proper construction. On a fair reading of the totality of the reasons of the Court in that decision, informed as they are by the circumstances of that case, I do not understand the Court to be establishing such a low threshold for the exercise of the discretion.
In short, this is not a case where the respondents "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" (Meissner at 157 per Dawson J).
For the reasons given above, no miscarriage of justice will occur if leave to withdraw the pleas of guilty is refused.
Although the refusal resolved only one of the orders sought in the respondents' amended notice of motion, in the absence of leave being granted to withdraw the pleas it follows that there is no utility in pursuing the remainder of the motion and the Court should therefore dismiss the amended notice of motion in its entirety.
Costs
The application was brought in Class 4 of the Court's jurisdiction where costs normally follow the event. The respondents having lost their application, and there being no reason to depart from the orthodox position, they must pay the council's costs of the application
Orders
The orders of the Court are therefore that the respondents' amended notice of motion filed on 3 February 2012 is dismissed, with the respondents to pay the applicant's costs of the motion. The exhibits are to be returned.
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Decision last updated: 07 January 2014
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