Rove Estate Pty Ltd atf Lane Cove Estate Trust v Chomp Excavations & Demolition Pty Ltd (No 3)

Case •

[2023] NSWSC 274

•

24 March 2023

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Rove Estate Pty Ltd atf Lane Cove Estate Trust v Chomp Excavations & Demolition Pty Ltd (No 3) [2023] NSWSC 274
Hearing dates: 30 August – 3 September, 17 September, 3 December 2021
Date of orders: 24 March 2023
Decision date: 24 March 2023
Jurisdiction:Equity - Commercial List
Before: Williams J
Decision:

See [294]

Catchwords:

TORT – trespass to land – where several defendants and many other unidentified persons drove onto the plaintiff’s land and dumped waste on the land – whether defendants did so with the consent of the plaintiff or the person in possession of the land at the time – whether person in possession at the time had actual or ostensible authority of the plaintiff to authorise defendants to dump waste on the land – where person in possession was a trespasser – whether the defendants had a licence supplied by law to dump waste on the plaintiff’s land – whether defendants contravened Protection of the Environment Operations Act 1997 (NSW) by transporting the waste to and dumping it on the plaintiff’s land – causation and loss – identification of the harm caused to the plaintiff by each defendant’s trespass – whether each defendant severally liable for the whole of the costs incurred by Rove in cleaning up the total waste dumped by defendants and many unidentified persons – whether plaintiff’s claim an “apportionable claim” and “single apportionable claim” within the meaning of s 34 of the Civil Liability Act 2002 (NSW) –where imprecision, but rational basis for assessment of compensatory damages for harm caused by each defendant’s trespass – exemplary damages

Legislation Cited:

Civil Liability Act 2002 (NSW) s 34(1)(a), s 34(2), s 34A, s 35

Civil Procedure Act2005 (NSW) s 14, s 100

Environmental Planning and Assessment Act 1979 (NSW)

National Environmental Protection (Assessment of Site Contamination) Measure 1999 (Cth) sch B2

Protection of the Environment Operations Act 1997 (NSW) ch 3 pts 3.3-3.8, ch 5, ch 9 pt 9.1, ss 5, 48, 88, 143, 144, 144AAA, sch 1 pt 1 cls 1, 39, 42, 50, sch 1 pt 3

Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018 (NSW)

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) div 15 pt 2

Uniform Civil Procedure Rules 2005 (NSW) r 2.1

Cases Cited:

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; (2012) 86 ALJR 522; (2012) 286 ALR 501; (2012) 88 ACSR 246; (2012) 7 BFRA 408; (2012) 30 ACLC 12-013; [2012] HCA 17

Barker v The Queen (1983) 153 CLR 338; (1983) 57 ALJR 426; (1983) 47 ALR 1; [1983] HCA 18

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; (1991) 66 ALJR 123; (1991) 104 ALR 1; [1991] HCA 54

Conway v George Wimpey & Co [1951] 2 KB 266; [1951] 1 All ER 363

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158

Environment Protection Authority v Grafil Pty Ltd (2019) 101 NSWLR 245; (2019) 238 LGERA 147; [2019] NSWCCA 174

Halliday v Nevill (1984) 155 CLR 1; (1984) 59 ALJR 124; (1984) 57 ALR 331; 13 A Crim R 250; [1984] HCA 80

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; (2013) 87 ALJR 505; (2013) 296 ALR 3; [2013] Aust Torts Reports 82-127; [2013] NSW ConvR 56-314; [2013] ANZ ConvR 13-012; [2013] HCA 10

IBEB Pty Ltd v Duncan [2011] NSWCA 368

Irlam v Byrnes (2022) 108 NSWLR 285; [2022] NSWCA 81

Jones v Dunkel (1959) 101 CLR 298; (1959) 32 ALJR 395; [1959] ALR 367; (1959) 76 WN (NSW) 278; [1959] HCA 8

Kayteal Pty Ltd v Dignan [2011] NSW ConvR 56-280; [2011] NSW Titles Cases 80-138; [2011] NSWSC 197

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; (2011) 85 ALJR 533; (2011) 276 ALR 375; [2011] Aust Torts Reports 82-088; [2011] HCA 11

Kuru v State of New South Wales (2008) 236 CLR 1; (2008) 82 ALJR 1021; (2008) 246 ALR 260; [2008] HCA 26

Lamb v Cotogno (1987) 164 CLR 1; (1987) 61 ALJR 549; (1987) 74 ALR 188; [1987] Aust Torts Reports 80-124; (1987) 5 MVR 449; [1987] HCA 47

League Against Cruel Sports v Scott [1986] QB 240; 2 All ER 489

McHale v Watson (1964) 111 CLR 384; (1964) 38 ALJR 267; [1965] ALR 788; [1964] HCA 64

McHale v Watson (1966) 115 CLR 199; (1966) 39 ALJR 459; [1966] ALR 513; [1966] HCA 13

Nickells v Mayor, Alderman, Councillors and Citizens of the City of Melbourne (1938) 59 CLR 219; (1938) 11 ALJ 568; [1938] ALR 154; [1938] HCA 14

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; (2004) 78 ALJR 1045; (2004) 208 ALR 213; [2004] HCA 35

Plenty v Dillon (1991) 171 CLR 635; (1991) 65 ALJR 231; (1991) 98 ALR 353; [1991] HCA 5

Rahme v Benjamin & Khoury Pty Ltd (2019) 100 NSWLR 550; [2019] NSWCA 211

Roy v O’Neill (2020) 272 CLR 291; (2020) 95 ALJR 64; (2020) 385 ALR 187; (2020) 285 A Crim R 120; [2020] HCA 45

Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177; (2020) 94 ALJR 502; (2020) 376 ALR 575; (2020) 280 A Crim R 356; [2020] HCA 14

Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325; [2020] NSWCA 274

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] Aust Torts Reports 81-649; [2002] NSWCA 82

Ucak v Avante Developments [2007] NSWSC 367

Williams v Milotin (1957) 97 CLR 465; (1957) 31 ALJ 820; [1957] ALR 1145; [1957] HCA 83

Wilson v State of New South Wales (2010) 278 ALR 74; (2010) 207 A Crim R 499; [2010] NSWCA 333

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; (1985) 59 ALJR 352; (1985) 57 ALR 639; [1985] Aust Torts Reports 80-317; [1985] HCA 12

Texts Cited:

C Sappideen and P Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011)

D Rolph et al. (eds), Balkin & Davis Law of Torts (LexisNexis Australia, 6th ed, 2021)

Halsbury’s Laws of Australia (LexisNexis Butterworths, vol 26, service 569)

M A Jones et al. (eds), Clerk & Lindsell on Torts (Thomson Reuters, 23rd ed, 2020)

Category:Principal judgment
Parties: Rove Estate Pty Ltd atf Lane Cove Estate Trust (Plaintiff)
Chomp Excavations & Demolition Pty Ltd (First Defendant)
Carlo Excavations Pty Ltd (Second Defendant)
Haulbuild Pty Ltd (Third Defendant)
Empire Transport Solutions Pty Ltd (Fourth Defendant)
Mr Ahmad El Kadomi (Fifth Defendant)
Mr Ahmad Kataieh (Sixth Defendant)
Mr Paul Jones (Seventh Defendant)
Mr George Abousleiman (Eight Defendant)
Mr Daniel Gawidziel (Ninth Defendant)
Mr Richard Gawidziel (Tenth Defendant)
Representation:

Counsel:
Mr F Corsaro SC (Plaintiff)
Mr F F F Salama with Mr A Smyth (First Defendant)
Mr G Smith (Third Defendant)
Mr A Patterson (Solicitor) (Fifth Defendant)
Mr R Lee (Seventh Defendant)
Mr I Archibald (Eight Defendant)

Solicitors:
Memcorp Lawyers (Plaintiff)
Mihalatos & Associates (First Defendant)
McInnes Wilson Lawyers (Third Defendant)
Edmond Khourey Solicitors (Fifth Defendant)
Vaughn Zarb Lawyers (Seventh Defendant)
Harrington Lawyers (Eight Defendant)

In person:
Mr Daniel Gawidziel (Ninth Defendant)

No Appearance for:
Second, Fourth, Sixth, and
Tenth Defendants
File Number(s): 2019/381976
Publication restriction: N/A

Judgment

Introduction

  1. These proceedings concern alleged trespass and dumping of material on vacant land at 1 Sirius Road, Lane Cove West (the Land) by each of the defendants on separate occasions over the course of two days on 13 and 14 July 2018. The Land was then owned by the plaintiff, Rove Estate Pty Limited (Rove) in its capacity as trustee of the Lane Cove Estate Trust.

  2. Trucks entered the Land on 74 occasions on 13 and 14 July 2018 and a survey conducted in August 2018 identified 209 piles of material with a total volume of 1,427.3 m3 on the Land. After engaging a soil scientist to undertake a waste classification of the piles and ascertaining that some of the piles contained asbestos waste, Rove engaged one of its related companies to remove and dispose of all of the 209 piles during the period from February to July 2019. The related company subcontracted that work out to various third parties. Rove claims to have incurred costs totalling $985,705.31 (including GST) in relation to the investigation, classification, and removal of the waste. [1]

    1. Plaintiff’s written closing submissions dated 5 October 2021, paragraph 51.

  3. Rove sued the owners of nine of the trucks captured on CCTV film driving onto the Land on 13 and 14 July 2018 for damages for trespass, including exemplary damages. The owners of those nine trucks are the first to sixth and eight to tenth defendants. Rove was unable to read the registration plates of many other trucks captured on the CCTV film and was therefore unable to identify the owners of those trucks. Rove also sued the seventh defendant who entered onto the Land with his earthmoving equipment on 14 July 2018 and smoothed out some of the piles of material that had been dumped on the Land.

  4. By the end of the final hearing, Rove had discontinued its claim against the seventh defendant (Mr Paul Jones) and had informed the Court that it did not press its claim against the fourth defendant (Empire Transport Solutions Pty Ltd).

  5. That left Rove’s claim against the first defendant Chomp Excavation & Demolition Pty Ltd (Chomp), the second defendant Carlo Excavations Pty Ltd (Carlo), the third defendant Haulbuild Pty Ltd (Haulbuild), the fifth defendant Mr Ahmad El Kadomi, the sixth defendant Mr Ahmad Kataieh, the eighth defendant Mr George Abousleiman, the ninth defendant Mr Daniel Gawidziel, and the tenth defendant Mr Richard Gawidziel.

  6. At the time of the alleged trespasses by those defendants, the gates at the entry to the Land were open, and a person stood at or beyond those gates permitting and directing the defendants’ trucks to enter the Land and dump the material contained in their trucks or trailers on the Land. Mr Jones gave evidence identifying that person as Mr Anthony Abi Marlu. Mr Abi Marlu was not known to the other defendants by name at the time of the events, and their evidence in these proceedings generally refers to him as the gatekeeper.

  7. Rove pleads that the dumped material was waste, and that the defendants’ conduct in transporting the material to the Land and dumping it there contravened the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Rove alleges that much of the dumped material contained asbestos. Rove’s submissions characterised the defendants’ alleged trespasses as intentional or, alternatively, as reckless or negligent.

  8. Rove’s primary case is that each of the acts of trespass allegedly committed by the defendants referred to at [5] above materially contributed to the need for Rove to undertake the work of removing and disposing of the 209 piles, and that those defendants are therefore severally liable for the whole of the costs that Rove claims to have incurred by undertaking all of that work. Alternatively, Rove contends that each defendant must bear its proportionate liability for the whole of those total costs.

  9. Each of Chomp, Haulbuild, Mr El Kadomi and Mr Abousleiman admits that trucks owned and/or operated by them entered onto the Land and deposited material on the Land on one or more occasions on 13 and/or 14 July 2018. Chomp and Haulbuild say that they deposited only virgin excavated natural material (VENM) which did not contain asbestos. Mr El Kadomi and Mr Abousleiman say that the material they dumped did not contain asbestos.

  10. Each of Chomp, Haulbuild, Mr El Kadomi and Mr Abousleiman claims to have entered onto the Land and dumped that material on the Land with the consent of the owner of the Land and/or the person in possession of the Land at the time of those entries. Alternatively, they claim to have done so pursuant to an implied licence that permitted them to enter and dump the material on the Land in return for payment of the fee stipulated by the gatekeeper and on the condition that they would follow the directions given to them by the personnel who were directing and controlling the movement of trucks and the dumping of material on the Land.

  11. Each of Chomp, Haulbuild, Mr El Kadomi and Mr Abousleiman contends that, if they trespassed on the Land (which is denied), then each of them is only liable in respect of any harm that their own actions may have caused to Rove, and that they are not severally liable for the whole of the costs incurred by Rove in removing and disposing of the 209 piles of material dumped by the defendants and other third parties.

  12. In the alternative, each of Chomp, Haulbuild and Mr Abousleiman pleads that, if Rove’s claim is a single apportionable claim within the meaning of s 34 of the Civil Liability Act 2002 (NSW), then each of the other defendants, any other person who deposited waste on the Land, and the gatekeeper who was in possession and control of the Land at the time of the alleged trespass, are concurrent wrongdoers, and the loss allegedly suffered by Rove was caused by those concurrent wrongdoers. Further, each of Chomp, Haulbuild and Mr Abousleiman contend that the gatekeeper was a rogue who unlawfully or fraudulently granted them access to the Land and that he should bear the most significant proportion of liability, if Rove’s loss is a single apportionable claim.

  13. Mr Daniel Gawidziel represented himself at the final hearing. He admits that one of his driver subcontractors dumped material on the Land on 13 July 2018 but says that he believed at the time that this had been authorised by the owner of the Land. He denies that the material dumped by his driver subcontractor contained asbestos.

  14. The remaining defendants – Carlo, Mr Kataieh and Mr Richard Gawidziel – did not defend the proceedings and Rove sought default judgment against them.

  15. I will refer to Mr Richard Gawidziel by his full name to avoid confusion with Mr Daniel Gawidziel. All references to Mr Gawidziel are references to Mr Daniel Gawidziel, although I will also refer to him by his full name on occasion.

  16. For the reasons that follow, each of Chomp, Haulbuild, Mr El Kadomi, Mr George Abousleiman and Mr Daniel Gawidziel trespassed on the land when they drove onto the Land and dumped material there. Each of those defendants is liable to pay compensatory damages to Rove for the loss caused by that defendants’ trespass. None of the defendants are liable for the whole of Rove’s remediation costs. Chomp and Mr George Abousleiman are also liable for exemplary damages. Rove is entitled to default judgment against Mr Carlo, Mr Ahmed Kataieh and Mr Richard Gawidziel for nominal damages only because the evidence adduced by Rove did not enable the Court to assess compensatory damages for the loss caused by each of those defendants. I have considered the substance of all of the parties’ written and oral submissions in coming to those conclusions and in formulating my reasons for those conclusions.

The tort of trespass to land

  1. A person who enters onto, or causes some physical matter to come into contact with, the land of another, commits a trespass unless they can show that they had the consent of the occupier or other lawful authority or justification: Kuru v State of New South Wales (2008) 236 CLR 1; (2008) 82 ALJR 1021; (2008) 246 ALR 260; [2008] HCA 26 (Kuru) at [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ) and the authorities there referred to.

  2. As Gageler J explained in Smethurst v Commissioner of the Australian Federal Police (2020) 272 CLR 177; (2020) 94 ALJR 502; (2020) 376 ALR 575; (2020) 280 A Crim R 356; [2020] HCA 14 (Smethurst) at [120] (references omitted):

“The gist of a common law cause of action for trespass, whether to land or to goods, is ‘the wrong to the right to possession’. At the heart of the common law right to possession is the common law right to control access by others and thereby to exclude others from access. In protecting the right to possession, the policy of the common law is to protect the right to exclude others which is bound up in possession.”

  1. The authorities cited by his Honour in the passage immediately above include the statement by Gaudron and McHugh JJ in Plenty v Dillon (1991) 171 CLR 635; (1991) 65 ALJR 231; (1991) 98 ALR 353; [1991] HCA 5 (Plenty v Dillon) (at 171 CLR 654-655) that:

“[T]he purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation or his or her land."

  1. It was submitted by Rove and the legally represented defendants in these proceedings that trespass may be either intentional or negligent. There is some authority to support the proposition that trespass may be actionable if it the defendant entered the land involuntarily but with negligence: Nickells v Mayor, Alderman, Councillors and Citizens of the City of Melbourne (1938) 59 CLR 219; (1938) 11 ALJ 568; [1938] ALR 154; [1938] HCA 14 (at 59 CLR 225-226 per Dixon J, as his Honour then was); League Against Cruel Sports v Scott [1986] QB 240; 2 All ER 489 (League v Scott); Barker v The Queen (1983) 153 CLR 338; (1983) 57 ALJR 426; (1983) 47 ALR 1; [1983] HCA 18 (Barker) (at 153 CLR 356-357 per Brennan J, as his Honour then was, and Deane J). Several learned texts also support that proposition: Halsbury’s Laws of Australia (LexisNexis Butterworths, vol 26, service 569) at [415-480]; D Rolph et al. (eds), Balkin & Davis Law of Torts (LexisNexis Australia, 6th ed, 2021) [5.10] (citing League v Scott). In Ucak v Avante Developments [2007] NSWSC 367, Hammerschlag J (as the Chief Judge in Equity then was) referred at [27] to the question of whether negligence may be an element of the tort of trespass to land in certain circumstances as “complex and unsettled”. His Honour did not need to decide the question in that case, which involved a strike out application. The parties have not referred me to any subsequent Australian authority that determines the question. I need not determine it in the present case because the evidence referred to later in these reasons clearly establishes that each defendant’s acts in entering and dumping material on the Land were intentional. The element of intention (or negligence, if applicable) is directed to the act of the defendant in entering onto the plaintiff’s land, and not to questions of whether the entry was authorised: Conway v George Wimpey & Co [1951] 2 KB 266; [1951] 1 All ER 363, at 2 KB 273; League v Scott; Barker at 470 (Dawson J); Balkin & Davis Law of Torts, supra, at [5.10]; C Sappideen and P Vines (eds), Fleming’s The Law of Torts (Lawbook Co, 10th ed, 2011) at [5.20].

  2. The question whether an occupier of land has expressly or impliedly granted permission to an alleged trespasser is essentially a question of fact: Halliday v Nevill (1984) 155 CLR 1; (1984) 59 ALJR 124; (1984) 57 ALR 331; 13 A Crim R 250; [1984] HCA 80, at 155 CLR 6 (Gibbs CJ, Mason, Wilson and Deane JJ). There are some circumstances in which the law will imply a licence to enter land for certain lawful purposes, unless there is something additional in the objective facts negating the implied licence or indicating that it was revoked: Halliday v Nevill, at 155 CLR 7 (Gibbs CJ, Mason, Wilson and Deane JJ); Roy v O’Neill, (2020) 272 CLR 291; (2020) 95 ALJR 64; (2020) 385 ALR 187; (2020) 285 A Crim R 120; [2020] HCA 45 (Roy v O’Neill) at [11]-[13] (Kiefel CJ) and [66]-[67] (Keane and Edelman JJ).

  3. A defendant will only be liable in trespass if they are present at and have taken part in the trespass, or if they have authorised or instigated others to commit the trespass: Balkin & Davis Law of Torts at [5.10].

  4. Rove’s submissions proceeded on the basis that, in order to establish trespass, it was necessary to show that the defendants acted intentionally, recklessly, or negligently, not only in entering onto the Land and dumping the material carried in their trucks on the Land, but also in contravening or failing to take reasonable steps to comply with the provisions of the POEO Act concerning the transport, storage and disposal of waste. [2] Rove pleaded that the defendants knew, or ought to have known, that their conduct in entering onto the Land and dumping their material on the Land was in breach of s 143 of the POEO Act, which makes it an offence to transport waste to a facility that cannot lawfully be used as a waste facility for that waste.

    2. Plaintiff’s written closing submissions dated 5 October 2021, paragraphs 5 and 18-24.

  1. I accept that the question whether the defendants’ conduct contravened the POEO Act is relevant to Rove’s claim for trespass in the present case because some of the defendants contend that they were authorised to enter and deposit their material on the Land by, inter alia, an implied licence. [3] If it be established that it was an offence under s 143 of the POEO Act for the defendants to transport their material to the Land and deposit it there, that is one reason why the law would not imply a licence for them to enter the Land for that purpose.

    3. See [10] above.

  2. I also accept that, if the alleged trespasses are established, then the provisions of the POEO Act that applied to the transport, storage and disposal of waste at that time will be relevant to Rove’s claim for exemplary damages. That legislative regime will have some bearing on the question whether the defendants should be found to have acted “in contumelious disregard” of Rove’s rights: Sydney Local Health District v Macquarie International Health Clinic Pty Ltd (2020) 105 NSWLR 325; [2020] NSWCA 274 (SLHD v Macquarie) at [78] and the authorities there referred to. The matters on which Rove relies in support of its claim for exemplary damages include that each defendant’s conduct allegedly involved “illegal dumping of contaminated material and unwanted waste material” on the Land. [4]

    4. Plaintiff’s written closing submissions dated 5 October 2021, paragraph 55.

  3. I do not consider that any contravention of the POEO Act (whether intentional, reckless, or negligent) is otherwise relevant to Rove’s causes of action for trespass to land. Rove sues the defendants in trespass only. Rove does not rely on the alleged breaches of s 143 of the POEO Act as giving rise to any additional cause of action. These proceedings are not proceedings for an offence under s 143.

  4. Chomp submitted that it was necessary for Rove to establish that the defendants intended to cause loss to Rove, or that Rove was reckless or negligent as to whether or not loss would be caused, by the defendants entering and depositing their material on the Land. [5]

    5. First defendant’s written closing submissions dated 5 October 2021, paragraphs 12.2 and 14.

  5. I reject that submission as fundamentally inconsistent with the fact that loss is not an element of the tort of trespass to land. As the Court of Appeal explained in SLHD v Macquarie at [73]-[75]:

“[73]   The tort of trespass is an unusual one which exists ‘though the damage be nothing’: see Entick v Carrington (1765) 19 St Tr 1029 at 1066 per Lord Camden LCJ, cited by Brennan J in Halliday v Nevill (1984) 155 CLR 1 at 10; [1984] HCA 80. Trespass to land is actionable per se (see Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 135 LGERA 98 at [190] (Tellamist)) and ‘so nominal damages are awarded as a recognition of the infraction of the plaintiff’s possessory right’: see Mayfair Ltd v Pears [1987] 1 NZLR 459 at 465.

[74]   That is not to say, however, that substantial damages may not be awarded for the tort. They may fall into different categories, as Santow JA explained in Tellamist at [193]-[200], being (a) cases where there is a benefit to the defendant without actual loss to the plaintiff; (b) where the benefit to the defendant correlates to the actual loss to the plaintiff; and (c) where the trespass involves loss to the plaintiff and no correlative gain by the defendant. To these three categories may arguably be added a fourth, namely where there is no benefit to the defendant and no actual loss to the plaintiff. In such a case, only nominal damages would lie. As will be seen, this may be the position where a trespasser has made no actual use of the land whilst in unauthorised possession of it.

[75]   There is no doubt that damages awarded for the tort of trespass may be awarded in a conventional manner consistent with the cardinal compensatory nature of damages in tort. Thus, it is open to a plaintiff upon whose land a defendant has trespassed to seek damages which would put that plaintiff in the same position it would have been had the tort not been committed or, to use the language of Hoffmann LJ (as his Lordship then was), to recover the ‘loss which he has suffered in consequence of the defendant’s trespass’: see Ministry of Defence v Ashman (1993) 25 HLR 513 at 519.”

  1. In cases such as the present where the plaintiff claims substantial damages of the kind described as category (c) in SLHD v Macquarie at [74], damages can be recovered for harm that was the natural and probable consequence of the trespass, or harm that was intended: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] Aust Torts Reports 81-649; [2002] NSWCA 82 (TCN v Anning) at [100] (Spigelman CJ, Mason P and Grove J agreeing).

  2. The other authorities cited by the parties concerning intention or negligence as an element of the tort of trespass to land and other property were directed to the intentional or negligent character of the defendant’s unauthorised entry onto or interference with the plaintiff’s land or property, and not to intention or negligence in causing loss to the plaintiff. [6]

    6. Plaintiff’s written closing submissions dated 5 October 2021, paragraph 22; first defendant’s written opening submissions dated 25 August 2021, paragraph 27; first defendant’s written closing submissions dated 5 October 2021, paragraph 12.2.

  3. I note for completeness that the parties also cited two cases involving claims for damages for personal injury arising from alleged negligence or trespass to the person. Neither of those cases support the proposition that intentional or negligent infliction of injury (as opposed to an intentional or negligent act, which directly or indirectly causes injury) is an element of an action for trespass to the person. [7] On the contrary, it is well established that an intention to injure the plaintiff is not an element of the tort of assault or battery. What must be intended is the act itself. [8] Nor do the personal injury cases cited by the parties stand for any other proposition that is capable of being extrapolated to support Chomp’s submission in the present case involving trespass to land.

    7. Williams v Milotin (1957) 97 CLR 465; (1957) 31 ALJ 820; [1957] ALR 1145; [1957] HCA 83 (at 97 CLR 474, per Dixon CJ, Williams, McTiernan, Williams, Webb, and Kitto JJ); McHale v Watson (1964) 111 CLR 384; (1964) 38 ALJR 267; [1965] ALR 788; [1964] HCA 64 (at 111 CLR 388, per Windeyer J, trying the case at first instance because the plaintiff and defendant were residents of different states). The subsequent appeal in McHale v Watson was concerned only with the cause of action in negligence and the standard of care to be applied to the defendant, who was a child: (1966) 115 CLR 199; (1966) 39 ALJR 459; [1966] ALR 513; [1966] HCA 13.

    8. Irlam v Byrnes (2022) 108 NSWLR 285; [2022] NSWCA 81 at [58] (Adams J) and [131] (Cavanagh J), and the authorities there cited.

  4. However, I accept that, if the defendants are found to have committed the alleged trespasses in the present case, and if Rove’s claim is a single “apportionable claim” within the meaning of s 34(1)(a) and the defendants are held to be concurrent wrongdoers within the meaning of s 34(2) of the Civil Liability Act, then the question whether the defendants intended to cause loss to Rove will become relevant by reason of s 34A of the Civil Liability Act.

The legislative regime for the transport, storage and disposal of waste

  1. Although Rove sues for trespass to land only, its pleaded cause of action in trespass included an allegation that each of the defendants had breached ss 143 and 144AAA of the POEO Act. Section 144AAA is irrelevant because it was introduced into the POEO Act by amending legislation that commenced after the date of the alleged trespasses on 13 and 14 July 2018. [9] Section 143(1) provides that a person who transports waste, or causes or permits waste to be transported, to a place that cannot lawfully be used as a waste facility for that waste, is guilty of an offence. Rove does not contend that it has any statutory cause of action for damages for the alleged contravention of s 143 and these proceedings are not proceedings for an offence under that section. However, as I have explained above, the provisions of the POEO Act concerning the transport and disposal of waste are potentially relevant to the pleaded defences that the defendants entered and deposited their material on the Land pursuant to an implied licence and, if trespass is proved, to Rove’s claim for exemplary damages.

    9. Section 144AAA was enacted by the Protection of the Environment Operations Amendment (Asbestos Waste) Act 2018 (NSW), to which assent was given on 28 November 2018.

  2. The salient provisions of the POEO Act that applied as at 13 and 14 July 2018 may be summarised as follows.

  3. Chapter 3 of the POEO Act provided for the issue of environment protection licences authorising specified activities are that listed in Schedule 1 of the POEO Act (defined in s 5 as “scheduled activities”).

  4. Section 48 in Part 3.2 of Chapter 3 of the POEO Act provided:

“(1)   Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on.

(2)   Offence A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises.

Maximum penalty:

(a)   in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues; or

(b)   in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.”

  1. Clause 1 of Part 1 of Schedule 1 to the POEO Act relevantly provided:

“(1) For the purposes of section 48, any activity that is declared by this Part to be a scheduled activity is taken to be an activity for which a licence is required for the premises at which it is carried out (the activity is premises-based).”

  1. The activities declared by Part 1 of Schedule 1 to be scheduled activities included “waste disposal by application to land” and “waste storage” as defined in clauses 39 and 42 (respectively).

  2. Before turning to the provisions of clauses 39 and 42 of Part 1 of Schedule 1, it is convenient to note that the POEO Act defines “waste” as including:

“(a)    any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or

(b)   any discarded, rejected, unwanted, surplus or abandoned substance, or

(c)    any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or

(d)    any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or

(e)    any substance prescribed by the regulations to be waste.”

  1. The term “substance” is broadly defined as including “matter or thing”.

  2. A “substance” is “waste” if it falls within any one or more of paragraphs (a) to (e) of the definition of “waste” set out above. Indeed, the definition is inclusive, such that a substance may be “waste” even if it does not fall within one of those paragraphs: Environment Protection Authority v Grafil Pty Ltd (2019) 101 NSWLR 245; (2019) 238 LGERA 147; [2019] NSWCCA 174 (EPA v Grafil) at [99], [115]-[132] (Preston CJ of LEC, Davies and Adamson JJ agreeing).

  3. Part 3 of Schedule 1 of the POEO Act contained definitions of various types of waste, including:

(1)   “general solid waste (non-putrescible)”, which included:

(a)    “virgin excavated natural material”, which was in turn defined as:

“… natural material (such as clay, gravel, sand, soil or rock fines):

(a)   that has been excavated or quarried from areas that are not contaminated with manufactured chemicals, or with process residues, as a result of industrial, commercial, mining or agricultural activities; and

(b)   that does not contain any sulfidic ores or soils or any other waste,’

and includes excavated natural material that meets such criteria for virgin excavated natural material as may be approved for the time being pursuant to an EPA Gazettal notice.”

(b)    “building and demolition waste”, which was relevantly defined as unsegregated material not containing asbestos waste or liquid waste that resulted from the demolition, erection, construction, refurbishment or alternation of buildings, but excluding excavated soil; and

(2)    “special waste”, including “asbestos waste” which was defined as “any waste that contains asbestos”.

  1. Waste falls within the definition of “asbestos waste” if it includes any asbestos, irrespective of the quantity of the asbestos or its relative proportion to the total volume of the waste: EPA v Grafil at [325]-[329].

  2. Clause 39 of Part 1 of Schedule 1 to the POEO Act relevantly provided:

“(1)   This clause applies to waste disposal by application to land, meaning the application to land of waste received from off site, including (but not limited to) application by any of the following methods:

(a)   spraying, spreading or depositing on the land,

(b)   ploughing, injecting or mixing into the land,

(c)   filling, raising, reclaiming or contouring the land.

(2)   However, this clause does not apply to an activity that involves any of the following:

(a)   sites inside the regulated area that, over any period of time, receive from off site a total of no more than 200 tonnes of the following waste (and no other waste):

(i)   building and demolition waste only,

(ii)   building and demolition waste mixed with virgin excavated natural material,

(b)   …

(c)   …

(d)   …

(e)   sites where only virgin excavated natural material is received from off site and applied to the land,

(f)   …

(3)   The activity to which this clause applies is declared to by a scheduled activity.

(4)   …”

  1. Clause 42 of Part 1 of Schedule 1 to the POEO Act relevantly provided:

“(1)   This clause applies to waste storage, meaning the receiving from off site and storing (including storage for transfer) of waste.

(2)   …

(2A)   …

(2B)   This clause also does not apply to the receiving of virgin excavated natural material from off site and its storage if the only waste received is virgin excavated natural material.

(3)   The activity to which this clause applies is declared to be a scheduled activity if:

(a)   more than 5 tonnes of hazardous waste, restricted solid waste, liquid waste or special waste (other than waste tyres) is stored on the premises at any time;

(b)   more than 5 tonnes of waste tyres or 500 waste tyres is stored on the premises at any time (other than in or on a vehicle used to transport the tyres to or from the premises), or

(c)   more than the following amounts of waste (other than waste referred to in paragraph (a) or (b)) are stored on the premises at any time:

(i)   in the case of premises in the regulated area—more than 1,000 tonnes or 1,000 cubic metres,

(ii)   …or

(d)   more than the following amounts of waste (other than waste referred to in paragraph (a) or (b)) is received per year from off site:

(i)   in the case of premises in the regulated area—6,000 tonnes,

(ii)   …

(4)   …”

  1. The Land is in the “regulated area” referred to in clauses 39(2)(a) and 42(3)(c) and (d) of Part 1 of Schedule 1 to the POEO Act. [10]

    10. Clause 50 of Schedule 1 defined “regulated area” as the area comprising numerous local government areas, including the Lane Cove local government area.

  2. Storage in clause 42 does not require any particular duration or degree of permanence and includes temporary storage: EPA v Grafil at [188]-[193].

  3. An activity may fall within more than one of the activities declared by Part 1 of Schedule 1 to the POEO Act to be a scheduled activity. The stockpiling and spreading on land of waste received from off site may be a scheduled activity by reason of clause 39 and also by reason of clause 42 of Part 1 of Schedule 1: EPA v Grafil at [194]. It is the carrying on of any scheduled activity on land, in circumstances where the occupier does not hold a licence authorising the scheduled activity to be carried on at that land, that constitutes an offence by the occupier under s 48(2) of the POEO Act.

  4. Parts 3.3 to 3.8 of the POEO Act provided for the issue of licences by the Environment Protection Authority (EPA), the conditions that may be attached to such licences and the duration, review, suspension, revocation and surrender of such licences.

  5. Chapter 5 of the POEO Act created certain offences, including ss 143 and 144.

  6. Section 143 relevantly provided:

“(1)   Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported:

(a)   the person, and

(b)   if the person is not the owner of the waste, the owner,

are each guilty of an offence.

Maximum penalty:

(a)   in the case of a corporation—$1,000,000, or

(b)   in the case of an individual—$250,000.

(2)   Proof of lawfulness In any proceedings for an offence under this section the defendant bears the onus of proving that the place to which the waste was transported can lawfully be used as a waste facility for that waste.

(3)   …

(3A)   Defence—approved notice It is a defence in any proceedings for an offence under this section if the defendant establishes that:

(a)   an approved notice was, at the time of the alleged offence, given to the defendant by the owner or occupier of the place to which the waste was transported or was displayed at the place, and

(b)   the approved notice stated that the place could lawfully be used as a waste facility for the waste, and

(c)   the defendant had no reason to believe that the place could not lawfully be used as a waste facility for the waste.

(3B)   However, it is not a defence in such proceedings for the defendant to establish that the defendant relied on the advice (other than advice in the form of an approved notice) given by the owner or occupier concerned to the effect that the place could, at the time of the alleged offence, be lawfully used as such a waste facility.

(3C)   Defence—waste not deposited It is a defence in any proceedings for an offence under this section if the defendant establishes that the waste transported by the defendant was not deposited by the defendant or any other person at the place to which it was transported.”

  1. The POEO Act defined “waste facility” as meaning:

“Any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).”

  1. If the storage, treatment, processing, sorting or disposal of the transported waste at the premises is a scheduled activity, and the occupier of the premises does not hold a licence issued under Chapter 3 of the POEO Act authorising that activity to be carried on at the premises and no exemption issued under the POEO Act applies to that activity at those premises, [11] that is one reason why the premises cannot lawfully be used as a waste facility for the transported waste. If it is not a scheduled activity, or if the occupier of the premises does hold a licence authorising the scheduled activity or a relevant exemption, other factors may be relevant to the question whether the premises can lawfully be used as a waste facility for the transported waste. Those factors include whether any development consent required for that use of the premises has been issued by the appropriate authority: EPA v Grafil at [336].

    11. Part 9.1 in Chapter 9 of the POEO Act makes provision for exemptions.

  1. Section 143(4) of the POEO Act defined “approved notice” as meaning a notice in a form approved by the EPA stating that the place specified in the notice can lawfully be used as a waste facility for the waste specified in the notice and containing a certification by the owner or occupier of the place that the statement is correct.

  2. Section 144 of the POEO Act relevantly provided:

“(1)   A person who is the owner or occupier of any place and who uses the place, or causes or permits the place to be used, as a waste facility without lawful authority is guilty of an offence.

Maximum penalty:

(a)   in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(b)   in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.”

  1. It is not an element of an offence under s 144 that the use of the land, in accordance with planning law concepts, was for the purpose of a waste facility. It suffices that, in the circumstances giving rise to the alleged evidence, the land was in fact used as a waste facility: EPA v Grafil at [145].

  2. The element of “without lawful authority” includes not only the absence of a licence issued under Chapter 3 of the POEO Act, but also not obtaining any development consent required for the operation of the waste facility under the Environmental Planning and Assessment Act 1979 (NSW): EPA v Grafil at [336].

The Land

  1. The Land is a vacant site of approximately 3.957 hectares.

  2. Documents reviewed by expert witnesses in these proceedings indicate that approximately 12,000m3 of heavy metal and asbestos contamination on the northern part of the Land was contained by capping prior to 2000.

  3. The Land was acquired by West Apartments Pty Ltd in 2004. It was proposed that a 13-lot subdivision would be undertaken by Demian Developments Pty Ltd. Mr Charbel Demian was a director of West Apartments Pty Ltd and was also associated with Demian Developments Pty Ltd.

  4. In July 2006, an environmental site assessment commissioned by Demian Developments Pty Ltd concluded that there was some localised areas of lead and asbestos contamination on the Land, and recommended the following ‘simple remedial and management activities”:

“The south and western parts of the site which are covered by dark brown grey, sandy fill with FCS fragments and (amosite) asbestos fibres, should be remediated by surficial excavation and off-site disposal of the materials to a landfill facility licensed with the DEC to accept Asbestos Contaminated (Solid) Waste. Hand-picking of FCS fragments should be conducted wherever possible, to minimise the extent of soil excavation and thus reduce waste disposal costs.

Waste scrap metal, large FCS fragments and general building wastes should be collected, as part of a general surface clean-up, and disposed at appropriate DEC-licensed waste facilities.”

  1. Mr Demian gave evidence that this recommended remediation work was not carried out and that no other remediation work involving asbestos removal was undertaken on the Land in the period from 2006 to 2018.

  2. Rove acquired the Land in October 2012. Mr Demian has been the sole director of Rove since 29 June 2017.

  3. Mr Demian gave evidence that the Land had a fence around the whole of its boundary and that the vehicular entry gates were padlocked. There was only one key to the padlock, which was kept in the key cabinet in Mr Demian’s office. The key was provided to employees of Rove and Linx Constructions Pty Ltd (Linx) from time to time for the purposes of inspecting the Land or supervising or managing work being carried out on the Land by contractors. Linx was a related company of Rove. Mr Demian arranged for employees of Linx to inspect the Land approximately fortnightly to monthly. When the key was given to an employee of Rove or Linx for the purpose of inspection or supervision and management of third party contractor works, Mr Demian was aware who had the key. Work carried out by third party contractors principally involved the maintenance work that is described in more detail below. The key was never provided to those third party contractors or their employees.

  4. In about late 2016, Mr Demian arranged for four concrete barriers, each about 3.5 metres wide and weighing two tonnes, to be placed inside the vehicular entrance gate to the Land. The barriers were placed in pairs 15 metres and 30 metres behind that gate and could only be moved using heavy machinery or a crane. The concrete barriers are clearly visible in aerial photographs of the entrance gates to the Land taken on 4 November 2016 and 15 April 2018 and are placed so that each set of two barriers covers the entire width of the access road from the entrance gates into the Land. A further aerial photograph was taken on and 5 May 2018 in which neither the entrance gate nor the first set of concrete barriers inside the gate are clearly visible. The location of the entrance gate and the location where the first set of barriers had been visible in the earlier photographs are heavily shadowed by the surrounding trees in that photograph. The second set of concrete barriers is clearly visible in the 5 May 2018 photograph. Contrary to the proposition put to Mr Demian in cross-examination, the photograph depicts the two barriers in that second set remaining in their previous position covering the width of the access road, albeit the boundary of the access road is less clearly delineated than in the previous photographs due to vegetation growth.

  5. In cross-examination, Mr Demian denied that the concrete barriers had been installed in response to persons gaining unauthorised access to the Land. Mr Demian gave evidence to the effect that the barriers were installed as an additional precautionary security measure against illegal dumping, which he described as a problem “all over Sydney”.

  6. Mr Demian gave evidence that he is familiar with the Land, having walked around it many times, and that Rove did not use the Land as a dumping site or have the Land filled. Mr Demian also gave evidence that he did not see any piles of waste or other material on the Land at any time prior to 13 July 2018. According to Mr Demian, the only work undertaken on the Land after Rove acquired it in October 2012 was annual maintenance work that included stabilisation and sedimentation controls and removal of shrubs and weeds.

  7. It was submitted on behalf of Chomp that Mr Demian’s denial that Rove had used the Land as a dumping site and had not had the Land filled was not credible, because the July 2006 report referred to at [61] above had identified the presence of fibrous cement sheeting fragments, building waste, and scrap metal on the Land, and had identified asbestos as a contaminant of concern.

  8. I reject that submission. The July 2006 report was not admitted as evidence of the truth of its contents. Even if the report had been tendered without any limitation, the evidence would not support Chomp’s contention that the reported matters referred to immediately above were attributable to the use of the Land by Rove, West Apartments Pty Ltd, or Demian Developments Pty Ltd. The report described a history of contamination of the Land beginning before 1995, almost a decade before West Apartments Pty Ltd purchased the Land in 2004. It was not put to Mr Demian in cross-examination that West Apartments Pty Ltd or Demian Developments Pty Ltd were responsible for any of the matters described in the report. Rove did not acquire the Land until six years after the report was published.

  9. Chomp also submitted that Mr Demian’s denial of having seen any piles or waste on the Land prior to 13 July 2018 was not credible because he conceded in cross-examination that an aerial photograph of the Land taken on 15 June 2010, whilst difficult to interpret, appeared to show a pile of burnt trees in an area that appeared to have recently been cleared of vegetation.

  10. I reject that submission. The aerial photograph had been taken from a considerable height above the Land and was indeed difficult to decipher. Mr Demian nevertheless cooperated with the cross-examiner’s questions that required him to interpret the photograph. Contrary to Chomp’s submission, Mr Demian’s identification of what appeared to be a pile of burnt trees is not inconsistent with his evidence that he did not see piles of waste on the Land prior to 13 July 2018. It was not put to Mr Demian that he saw the pile that he identified in the 15 June 2010 photograph at any time when he inspected or attended the Land prior to the events giving rise to these proceedings.

  11. Similar submissions made by Chomp by reference to other photographs and evidence concerning the clearance of vegetation during annual maintenance of the Land in the years prior to 2018 were misconceived for the same reason, and because there is no evidence to suggest that any piles of cleared vegetation generated by those processes remained on the Land for any period of time.

  12. Annual maintenance work carried out during May and June 2018 included clearing vegetation from a large section of the Land in anticipation of the campaign that Rove was about to embark on to sell the Land. A Linx project manager used the key to the locked entrance gates to facilitate the maintenance contractor’s access to the Land during this period.

  13. Mr Demian gave evidence in cross-examination that he inspected the Land on several occasions leading up to 4 June 2018, which that was the last time that he personally inspected or attended the Land before being informed on 16 July 2018 that material appeared to have been dumped on the Land. Mr Demian gave evidence that he did not see piles of waste on the Land during his inspections in the period up to 4 June 2018.

  14. Mr Demian was cross-examined at some length about the extent to which the 2018 maintenance work involved excavation of soil and other material from the Land. Mr Demian was shown several photographs of the Land taken on 31 May 2018 and asked questions about the extent to which the earth had been disturbed or excavated during the work and whether any excavated material had been stockpiled on site. Mr Demian accepted that the photographs showed some disturbance of the soil and, in two instances, some relatively small areas of excavation which he attributed to the removal of shrubs. Mr Demian did not accept that any material so excavated had been stockpiled on site. To my eye, the photographs did not depict any stockpiling of material. As I understood it, the object of those questions and the criticisms made in the defendants’ submissions about Mr Demian’s answers was to support a contention that some of the 209 piles discovered on the Land on 16 July 2018 might have been excavated from the Land by Rove or its maintenance contractor, rather than deposited on the Land by the defendants or other third parties on 13 and 14 July 2018. The evidence does not support that contention. As referred to in more detail at [131]-[136] below, the expert evidence establishes that the 209 piles discovered on 16 July 2018 included many piles with a dominant soil type that could not have been excavated from the Land. Those piles were interspersed throughout the 209 piles in a manner that renders it improbable that some of the piles were excavated from the Land.

  15. On about 12 June 2018, Rove engaged CBRE Pty Ltd (CBRE) and Savills NSW Pty Ltd (Savills) as its agents for the marketing and sale of the Land. Mr Demian gave evidence that CBRE and Savills would have arranged for prospective purchasers to inspect the Land during the period leading up to 13 July 2018. Mr Amadeo Banzato, who was employed by Rove or by Mr Demian, was responsible for liaising with the sales agents to arrange inspections. Mr Banzato had access to the key to the gates to the Land for that purpose. A campaign update report issued by CBRE and Savills on 11 July 2018 recorded that two prospective purchasers had inspected the Land at that stage of the campaign.

  16. Counsel for Chomp made a submission inviting the Court to draw “inferences that are appropriately adverse to the Plaintiff’s case, on the basis of the principles laid down in Jones v Dunkel” from Rove’s failure to call any director or officer of Linx (other than Mr Demian), any person involved in the construction of the fence securing the Land, and all persons to whom Rove provided the key to the padlocked Sirius Road entrance gates at any time, including the Linx project managers who conducted the inspections of the Land or supervised maintenance work on the Land, Mr Banzato, and the CBRE and Savills personnel who conducted the marketing campaign in 2018. Counsel for Haulbuild made a similar submission in relation to Rove’s failure to call Mr Banzato and project managers to whom the key was provided.

  17. Counsel for Chomp and Haulbuild did not articulate the inferences for which they contended, save to say that the inferences would be “adverse” to Rove. I decline their invitation to draw those unspecified adverse inferences. Mr Demian gave evidence about the construction of the fence and the padlock installed on the Sirius Road entrance gates. He explained the manner in which access to the only key was controlled and the limited purposes for which employees of Rove and Linx were permitted to use the key. Those aspects of Mr Demian’s evidence were not challenged in cross-examination. The evidence is inherently plausible, being consistent with the cautionary approach evidenced by the installation of the concrete barriers in late 2016. The principles in Jones v Dunkel do not require a party to call cumulative evidence: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [81] (Gleeson JA, with whom the other members of the Court of Appeal agreed) and the authorities there referred to. I do not consider that the circumstances of the present case required Rove to call each and every person known to have had access to the key at any time since 2012. Even if the case had called for Rove to provide an explanation of its security processes beyond Mr Demian’s (unchallenged) evidence, the principles in Jones v Dunkel would not permit the Court to infer that the evidence of any of those persons would have been adverse to Rove: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; (2011) 85 ALJR 533; (2011) 276 ALR 375; [2011] Aust Torts Reports 82-088; [2011] HCA 11 at [64] (Heydon, Crennan and Bell JJ); Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; (2012) 86 ALJR 522; (2012) 286 ALR 501; (2012) 88 ACSR 246; (2012) 7 BFRA 408; (2012) 30 ACLC 12-013; [2012] HCA 17 at [165]-[167] and [232] (per curiam).

  18. The evidence tendered in these proceedings included many aerial photographs and other images of the Land taken at various different times. None of those photographs were proved to have been taken immediately prior to 13 July 2018.

  19. Mr Elie Abousleiman went to the Land on 12 July 2018 and recorded an eight second video on his mobile phone at 9:17am. The video shows parts of the Land in the vicinity of part of the access road that runs through the Land from the Sirius Road entrance gates. No mounds or piles of soil or other material are visible on the part of the Land shown in the video, but the surface of the earth appears to have been disturbed relatively recently. Three dump trucks are visible in the video and one of them has a trailer. Mr Demian gave evidence that he was not aware of the presence of trucks on the Land on 12 July 2018. The video does not depict the whole of the area of the Land in the vicinity of those dump trucks and it is not possible to ascertain from the video whether there were mounds or piles of soil in that area. Mr Elie Abousleiman gave evidence that he saw a significant number of piles of soil on the Land while he was there, many of which were being moved and levelled out by heavy machinery that he saw there. Mr Elie Abousleiman added a caption to the video that read: “New tip boys – Lane Cove West”. He gave evidence that he only sent the video to his brother, Mr George Abousleiman. He denied posting it on any website or chat group or otherwise publishing it more widely than to his brother.

The events of 13 and 14 July 2018

  1. Mr Demian gave evidence that Linx inspected the Land on 16 July 2018 after the real estate agents asked questions about work that appeared to have been carried out on the site. The Linx employee who conducted that inspection reported to Mr Demian that stockpiles of waste material had been dumped on the Land. Mr Demian promptly caused this to be reported to the NSW Police, Lane Cove Council and the Environment Protection Authority.

  2. Rove tendered CCTV film taken on 13 and 14 July 2018 from a camera mounted on the premises of its neighbouring landowner, Harley Davidson. The film shows the vehicular entrance gates to the Land from Sirius Road in Lane Cove West and part of the access road that leads from those gates into the Land.

  3. During cross-examination, Mr Demian was asked to make inquiries of Harley Davidson about whether CCTV film was available for dates earlier than 13 July 2018. Mr Demian did so, and reported back that Harley Davidson had determined that the CCTV film for earlier dates did not detect truck movements onto the Land and had therefore declined to release that film to Rove, citing privacy reasons. Another neighbouring landowner, Transurban, produced CCTV film to the Court in response to a subpoena issued by Rove, but no party tendered any part of that CCTV film. In these reasons, references to the CCTV film are references to the film tendered by Rove from Harley Davidson’s camera on 13 and 14 July 2018.

  4. The CCTV film for 13 July 2018 shows a person wearing a cap, carrying a small bag slung over their right shoulder and smoking from a cigarette held in their right hand approaching the closed Sirius Road entrance gates to the Land on foot at 6:49am on 13 July 2018. The film shows that person opening the gates and entering the Land. Mr Demian gave evidence that he did not recognise the person, and that he did not authorise the person to enter the Land or to provide access to the Land to any other person. There was no challenge to that aspect of Mr Demian’s evidence in cross-examination.

  5. In his affidavit sworn on 11 August 2021, Mr Demian described the CCTV film as showing the person “forcibly” entering through the gates to the Land. The CCTV film does not depict any use of force. The precise means by which the person opened the gates is not visible on the CCTV film, but they used only their left hand to do so. Their right hand remains visible by their side on the CCTV film while the gates are being opened. The person was swinging the gates open less than 30 seconds after first arriving at the closed gates. The CCTV film then shows the person walking through the open gates, placing their bag on the right-hand sight of the entrance road just inside the gates, and then continuing along the entrance road into the Land until they disappear from view.

  6. The concrete barriers referred to at [65] above are not visible on the CCTV film of the unidentified person opening the gate on 13 July 2018. The film depicts a person walking along the access road from inside the Land towards the gates approximately seven minutes after the gates were opened. The person is dressed in the same way and appears to me to have the same gait as the person who opened the gates. The person returns to the location on the right-hand side of the access gates where the bag was left earlier, removes some clothing from their upper body and puts on a high visibility vest. The person then waits in that location, walking around occasionally in the vicinity of the gates and on the road immediately outside the gates, until 7:20am, when trucks begin to arrive at the gates.

  1. The CCTV film shows a large sign located immediately to the right of the entrance gates that reads: “Expressions of Interest – Large Land Holding”. The sign also states: “Suitable for Owner-Occupiers and Developers”. There are no other signs visible in the CCTV film.

  2. The CCTV film shows the first truck stopping just inside the entrance gates and the person in the high visibility vest walking towards the driver’s window where they remain standing for a short time, gesturing with their hands, looking in the direction of the drivers’ cab and apparently speaking to the driver. The person points with their right arm in the direction away from the gates (pointing further into the area of the Land) and the truck begins to drive along the access road almost immediately thereafter. The CCTV film shows the truck driving along the access road without stopping. That is to say, the truck’s progress does not appear to have been impeded by any barrier.

  3. The CCTV film shows a second truck arriving at 7:29am. A similar interaction appears to occur between the driver and the person in the high visibility vest, save that that driver’s arm is shown reaching out of the window and handing something to the person, which the person then places in their back pocket, before the truck proceeds down the entrance road.

  4. I have not viewed the remaining 10 hours and 30 minutes of the CCTV film for 13 July 2018, save for those parts that were referred to in the cross-examination of witnesses or in the parties’ submissions.

  5. Based on his review of the CCTV film, Mr Demian gave evidence that trucks entered the Land on 54 occasions between 7:20am and 4:21pm on 13 July 2018.

  6. As discussed at [159]-[209] below, Chomp entered and dumped material on the Land on three occasions on 13 July 2018.

  7. As discussed at [227]-[232] below, Mr El Kadomi’s employed driver entered and dumped material on the Land on two occasions on 13 July 2018.

  8. As discussed at [234]-[252] below, Mr George Abousleiman entered and dumped material on the Land on three occasions on 13 July 2018.

  9. As discussed at [254]-[260] below, Mr Gawidziel’s employed or contracted driver entered and dumped material on the Land on one occasion on 13 July 2018.

  10. Mr Jones has worked in the earthmoving business for more than 50 years. He gave evidence that he received a telephone call from Mr Anthony Abi Marlu on 13 July 2018 asking him to be at 1 Sirius Road in Lane Cove the following morning for a job. Mr Jones knew Mr Abi Marlu, having met him a few weeks earlier in connection with another job that he had done for him. Mr Abi Marlu told that him the job at Lane Cove was for his brother.

  11. The CCTV film for 14 July 2018 shows a truck carrying earthmoving equipment arriving at the Sirius Road entrance gates in darkness at 5:55am. In cross-examination, Mr Jones identified that as his truck and track loader, and identified himself as the driver.

  12. The CCTV film shows Mr Jones opening the gates at 6:30am and driving his track loader inside the gates at 6:45am. Mr Jones gave evidence that he opened the entrance gates to the Land with a code that had been provided to him by text message from Mr Abi Marlu a short time earlier. During cross-examination, Mr Jones produced the text message that he received from Mr Abi Marlu containing the code to open the entrance gates. Mr Jones gave evidence identifying the mobile telephone number from which he received that message.

  13. The CCTV film shows a person arriving at the Sirius Road entrance gates on foot at 6:44am. From their physical appearance and gait recorded on the film, that person appears to be the same person as the person shown arriving on foot in the CCTV film dated 13 July 2018. They are carrying the same bag, or a bag of very similar appearance. Mr Jones identified the person as Mr Abi Marlu. At the time of Mr Abi Marlu’s arrival, Mr Jones’ truck is visible parked just outside the gates and Mr Jones can be seen working to offload his track loader from the back of his truck.

  14. The CCTV film shows Mr Jones driving his track loader through the gates at 6:45am and stopping just inside the gates. Mr Abi Marlu is seen walking over to the track loader and appears to be speaking with Mr Jones. Mr Abi Marlu points with his right hand in the direction further into the area of the Land, away from the gates. Mr Jones gave evidence that Mr Abi Marlu was pointing him to the areas of the Land where he was required to level the mounds and to build a road so that trucks could go down around the corner. After about 90 seconds, Mr Jones’ track loader is seen moving away and proceeding down the access road into the Land.

  15. Mr Jones gave evidence that he saw numerous mounds of soil throughout the site and that he worked on levelling the mounds until 11:00am, when he received a telephone call telling him to stop work. He could not estimate how many mounds he had levelled before finishing work.

  16. Mr Demian was asked in cross-examination whether he knew Mr Jones or Mr Abi Marlu. Mr Demian answered that he did not, and the cross-examiner did not challenge that answer.

  17. Mr Abi Marlu did not appear in response to a subpoena issued by Haulbuild. Although Chomp made an application for a bench warrant for his arrest at one stage during the final hearing, it did not pursue that application to completion and ultimately withdrew the application and abandoned any attempt to call Mr Abi Marlu to give evidence. No steps were taken by any other defendant to adduce evidence from Mr Abi Marlu.

  18. The CCTV film for 14 July 2018 records the first truck (with the exception of Mr Jones’ vehicle) arriving at the Sirius Road entrance gates at 7:09am. There was no one waiting on foot at the gates at the time. The truck is seen driving through the gates without stopping and proceeding part of the way down the entrance road. A person wearing a high visibility vest can be seen approaching the access road, whereupon the truck stops. After about two minutes during which the person remains beside the truck, the truck is seen to turn left and drive uphill within the Land until it is out view of the CCTV camera.

  19. I have not viewed the remaining six hours and 20 minutes of the CCTV film for 14 July 2018, save for those parts that were referred to in the cross-examination of witnesses or in the parties’ submissions.

  20. Based on his review of the CCTV film, Mr Demian gave evidence that trucks entered the Land on 20 occasions between 7:09am and 1:17pm on 14 July 2018.

  21. As discussed at [159]-[209] below, Chomp entered and dumped material on the Land on two occasions on 14 July 2018.

  22. As discussed at [211]-[225] below, Haulbuild entered and dumped material on the Land on three occasions on 14 July 2018.

  23. As discussed at [234]-[252] below, Mr George Abousleiman entered and dumped material on the Land on one occasion on 14 July 2018.

  24. Mr Demian gave evidence that he did not authorise any vehicular access to the Land on 13 and 14 July 2018, and that he did not consent to any person entering the Land on those dates.

Investigations conducted in the immediate aftermath of 16 July 2018

  1. Rove reported its discovery of the dumped material to the EPA on or about 25 July 2018. The EPA inspected the Land on 31 July 2018. On 17 September 2018, the EPA wrote to Mr Demian referring to its inspection of the Land and stating that it was investing potential breaches of the POEO Act and seeking to identify the persons responsible for dumping the stockpiles on the Land. The letter also stated that Rove may choose to voluntarily clean up the waste whilst the matter was under investigation, and that any such action would need to ensure that all waste was removed and disposed of lawfully.

  2. In about late July 2018, Mr Demian arranged for a drone to fly over the Land and film the condition of the Land. That film shows numerous mounds or piles of soil. The location of the piles and their volume was surveyed by Mr Aaron Millard, a registered surveyor of Ramsay Surveyors Pty Ltd, between 17 and 22 August 2018. Mr Millard provided a report on 4 September 2018 and a further report dated 11 February 2021 in which he identified 209 piles with an aggregate volume of 1,427.3m3. Mr Millard produced aerial photographs of the Land on which he superimposed the outline of each pile, ascribed an identifying number to each pile and recorded the cubic metre volume of each pile. A copy of those photographs is Annexure A to these reasons. The defendants did not challenge any aspect of Mr Millard’s evidence.

  3. In August 2018, Mr Adam Sullivan of Sullivan Environmental Sciences Pty Ltd was engaged to work together with Mr Millard to conduct a waste classification of the piles. Mr Sullivan holds a Bachelor of Science degree in Soil Science from the University of Sydney and is a Certified Environmental Practitioner specialising in Site Contamination under the certification scheme administered by the Environment Institute of Australia and New Zealand. He has 23 years’ experience in the assessment and remediation of contaminated land.

  4. Mr Sullivan prepared reports dated 18 September 2018 and 11 February 2021 in which he classified 811.6m3 of the soil waste in the piles as General Solid Waste (non-putrescible) and 615.7m3 of soil waste in the piles as Special Waste – Asbestos together with General Solid Waste (non-putrescible).

  5. In his 11 February 2021 report, Mr Sullivan described in more detail the steps that he took for the purpose of classifying the piles. In summary:

  1. Mr Sullivan visually inspected the outer surface of each individual pile and the inner surface at up to three evenly spaced locations of each pile, and documented the dominant soil material type in his field notes using industry standard soil logging descriptions (such as natural shale rock, sandy clay, natural sandstone rock);

  2. Mr Sullivan’s visual inspection included looking for indications of contamination, such as soil staining, discolouration and odours;

  3. Mr Sullivan also used a photoionisation detector (or PID) to screen soil materials in each pile to detect any volatile chemicals;

  4. Mr Sullivan observed that foreign materials that were visible on and in some of the piles included fragments of fibro cement. He recorded the location of these fragments in his field notes and collected 17 such fragments for analysis for the presence of asbestos;

  5. after completing his visual inspections and PID screening, Mr Sullivan used his field notes to identify piles of similar soil type and composition, grouping what he determined to be “like” materials based on soil composition, colouring, consistency, presence of foreign material, and presence of fibro cement fragments. This resulted in 13 groups, which Mr Sullivan labelled A to M. Mr Sullivan had observed fibro cement fragments in the piles in seven of those 13 groups;

  6. Mr Sullivan then collected 22 soil samples that he considered to be representative of the 13 groups. This included a sample taken from one or more piles in each group where fibro cement fragments had been observed; and

  7. after receiving the results of the laboratory testing of the soil samples, Mr Sullivan then classified the 13 groups A to M in accordance with the “Waste Classification Guidelines, Part 1: Classifying Waste”, published by the EPA in November 2014.

  1. Annexure B to these reasons is a copy of Mr Sullivan’s table listing his 13 groups A to M, identifying the piles included in each of those groups and listing the waste classification that he assigned to each of those groups.

  2. Mr Millard’s annotated aerial photographs at Annexure A to these reasons show that the 209 piles were located in clusters in four different areas of the Land, with the two largest areas being located on either side of the access road that runs through the Land from the Sirius Road entrance gates in an east westerly direction before curving to the north. A comparison of the numbered piles on Annexure A with the pile numbers identified in Mr Sullivan’s waste classification Annexure B to these reasons reveals that:

  1. the cluster of piles numbered 1 to 26 depicted on sheet 2 of Mr Millard’s annotated aerial photographs comprised four different soil types, [12] with 18 of the piles located throughout the cluster of 26 being classified as asbestos waste;

  2. the cluster of piles numbered 27, 28, and 72 to 183 depicted on sheet 3 of Mr Millard’s annotated aerial photographs comprised six different soil types, [13] with 40 of the piles located throughout the cluster of 114 piles being classified as asbestos waste;

  3. the cluster of piles numbered 29 to 71 depicted on sheet 4 of Mr Millard’s annotated aerial photographs comprised five different soil types, [14] with three of the piles located throughout the cluster of 43 piles being classified as asbestos waste; and

  4. the cluster of piles numbered 184 to 209 depicted on sheet 5 of Mr Millard’s annotated aerial photographs comprised three different soil types, [15] with two of the piles located throughout the cluster of 26 piles being classified as asbestos waste.

    12. Mr Sullivan’s groups J, K, L and M.

    13. Mr Sullivan’s groups A, C, F, H, I and J.

    14. Mr Sullivan’s groups A, B, C, D and F.

    15. Mr Sullivan’s groups A, B, and J.

  1. The evidence of Mr Sullivan and Mr Millard does not purport to identify which specific piles were deposited on the Land by any of the defendants in these proceedings.

  2. Mr Abousleiman tendered a report of Dr Cheryl Halim dated 14 May 2021. Dr Halim has a Bachelor Engineering (Chemical Engineering) and Doctor of Philosophy in Chemical Engineering. Dr Halim has approximately 15 years’ experience in contaminated land consultancy, including the management of asbestos assessment and remediation projects.

  3. The following three themes emerged from Dr Halim’s report, which were then addressed in a report prepared by Mr Sullivan dated 8 July 2021 in reply to Dr Halim, in a report dated 20 August 2021 prepared by Mr Sullivan and Dr Halim jointly following their conclave, in a further report prepared by Mr Sullivan dated 23 August 2021 expressing further opinions in relation to the points of disagreement that remained between the experts following their joint conference, and in cross-examination of Mr Sullivan and Dr Halim:

  1. criticisms of Mr Sullivan’s methodology and approach to the waste classification;

  2. whether the piles classified by Mr Sullivan comprised material excavated from the Land or comprised material brought onto the Land from elsewhere; and

  3. alternative ways in which asbestos contamination might have been remediated without removing all of the piles from the Land.

  1. Before addressing the substance of each of these themes, it is necessary to deal with a submission made by Chomp criticising Mr Sullivan’s conduct in preparing his report dated 23 August 2021 after the experts had conferred and produced their joint report. Mr Sullivan’s 23 August 2021 report was admitted into evidence without objection. In closing submissions, Chomp submitted that the report was an attempt by Mr Sullivan to narrow the scope of his agreement and to reinforce his disagreements with Dr Halim recorded in their joint report and that “the Court should deprecate this backsliding as a professional embarrassment to his expert credibility”.

  2. I reject Chomp’s submission. Mr Sullivan’s 23 August 2021 report does not narrow the scope of any agreement that he expressed with Dr Halim in their joint report. Rather, Mr Sullivan sets out verbatim what the experts wrote in their joint report about key points of disagreement and then expands on his reasons for disagreement. It would have been preferable for all of Mr Sullivan’s reasons for disagreement to be included in the joint report. However, where further reasons for disagreement occur to an expert after the joint report has been completed, it is entirely consistent with the expert’s duty to the Court and with the Expert Witness Code of Conduct for those supplementary reasons to reduced to writing in a further report. The submission that Mr Sullivan was “backsliding” or that his conduct in preparing his 23 August 2021 report was embarrassing to his professionalism or to his credibility as an expert witness was baseless, and should not have been made. The position might have been different if Mr Sullivan had not participated in the joint conference and joint report in good faith, or had deliberately withheld from the joint report the additional reasons that he expressed in his 23 August 2021 report. But there is no evidence to suggest that this occurred, and it was not put to Mr Sullivan in cross-examination. Indeed, neither Chomp nor any other defendant raised any issue with Mr Sullivan in cross-examination concerning his independence and compliance with his duties as an expert witness in the preparation of any of his reports or in his oral evidence.

  3. In relation to the first theme referred to at [120] above, the following issues raised by Dr Halim concerning Mr Sullivan’s approach to the sampling, grouping, and testing of the piles and classification of the waste remained live following the preparation of their joint report:

  1. whether Mr Sullivan’s approach to sampling the soil from each of the 209 piles was consistent with Schedule B2 (‘Guideline on Site Characterisation’) of the National Environmental Protection (Assessment of Site Contamination) Measure 1999 (as amended in 2013) (NEPM B2);

  2. Mr Sullivan’s 11 February 2021 report provided only three photographs of three stockpiles, which Dr Halim considered “does not allow verification of the accuracy of stockpile segregation” which was “crucial” information given that Mr Sullivan had segregated the materials into groups A to M “based on the appearance of each stockpile”; and

  3. Dr Halim’s opinion that it was inappropriate to test only 22 soil samples from the 209 piles and treat them as representative of all of the materials in Mr Sullivan’s groups A to M, and to test only 17 samples of fibro cement fragments and treat them as representative of all such fragments that Mr Sullivan observed in 84 of the piles.

  1. Mr Sullivan disputed the importance of photographs of the piles, noting that the waste transportation and disposal provisions of the POEO Act do not require photographic evidence supporting the classification of the waste. Dr Halim maintained that photographic evidence was important, having regard to Mr Sullivan’s reliance on his visual observations in order to group the piles into his categories A to M. Ultimately, it seemed to me that Dr Halim’s complaint about the absence of extensive photographs was driven by a desire to be able to see photographic evidence of the piles in circumstances where she had not had the opportunity to physically inspect the piles before they were removed from the Land. That desire is understandable, but it does not cause me to doubt the accuracy of Mr Sullivan’s observations of the dominant soil type in each pile that he recorded in his field notes at the time of his inspection and in his waste classification table which is reproduced at Annexure B to these reasons. There was no challenge to Mr Sullivan’s expertise or independence as an expert witness in these proceedings, save for the submission that I have rejected at [121]-[122] above, and it was not put to Mr Sullivan in cross-examination that he had erred in characterising the soil types in the piles. Nor does it cause me to doubt the accuracy of Mr Sullivan’s record of the extent to which he observed fibro cement fragments in the piles during his visual inspection, which was conducted with the benefit of his 23 years’ experience.

  2. Mr Sullivan’s 11 February 2021 report stated that he had inspected the inner surface of each pile at up to three locations. Dr Halim’s report dated 14 May 2021 suggested that at least three samples were required by NEPM B2 for stockpiles of less than 75m3. Mr Sullivan emphasised that NEPM B2 sets out a recommended number and not a required number of samples for stockpiles less than 75m3. Mr Sullivan gave evidence that the piles on the Land varied size from 0.8m3 to 42.1m3. He accepted that he had not taken the recommended number of samples for each and every one of the 209 stockpiles, but gave evidence that he had applied his experience in designing a sampling program that he considered to be appropriate in the circumstances, having regard to the guidance in NEPM B2, his knowledge of the site, and commercial and financial constraints. Dr Halim opined that, in circumstances where the material was allegedly dumped on the Land by different persons from different locations, the similar appearance of that material did not warrant an assumption that the material would have the same chemical and contaminant composition. In the joint report prepared with Dr Halim, Mr Sullivan acknowledged that he had undertaken his waste classification process on the assumption that the material had not been sourced from multiple sites and that this assumption had informed his approach to sampling. Mr Sullivan agreed that, if he had known that the material in the piles had emanated from multiple sites, it would have been preferable to increase the sampling density. Contrary to the defendants’ submissions, this concession does not undermine Mr Sullivan’s unchallenged evidence of the dominant soil type that he observed in each of the 209 piles. Nor does it undermine his evidence referred to below concerning the extent to which he observed fibro cement fragments in the piles.

  1. It is not strictly necessary to address the defendants’ alternative submissions that, if they are each liable for the whole of the costs of Rove’s remediation exercise, that liability is a single “apportionable loss” within the meaning of s 34 of the Civil Liability Act that should be apportioned between them and other third parties as concurrent wrongdoers pursuant to s 35 of that Act. I make the following brief observations in case they become relevant in the context of any appeal.

  2. The alternative submissions of the defendants, and the submissions made on behalf of Rove, assumed that Rove’s claim was a claim for economic loss “arising from a failure to take reasonable care” and therefore an “apportionable claim” within the meaning of s 34(1)(a) of the Civil Liability Act. In my opinion, that assumption was incorrect. In order for s 34(1)(a) to apply, it is necessary for the absence of reasonable care to have been an element of the cause of action on which the plaintiff succeeded: Rahme v Benjamin & Khoury Pty Ltd (2019) 100 NSWLR 550; [2019] NSWCA 211 at [135]-[137] (Macfarlan JA, Bathurst CJ and McCallum JA agreeing). In the present case, negligence was neither pleaded as an element of the causes of action in trespass, [40] nor found as a matter of fact giving rise to the defendants’ liability for trespass. It follows that Rove’s claim, if properly characterised as a single claim contrary to my conclusion above, is not an “apportionable claim” within the meaning of s 34(1)(a), that s 35 of the Civil Liability Act therefore does not apply. That conclusion does not depend on s 34A of the Civil Liability Act and whether or not the defendants intended to cause the economic loss that is the subject of Rove’s claim.

    40. Although it was referred to in submissions, as referred to at [20] above.

  3. If it had been necessary to determine whether the defendants intended to cause the economic loss, I would have held that Chomp’s conduct described at [159]-[209] above exhibited contumelious disregard for Rove’s rights. In particular, Mr Tsompanidis pursued the opportunity to dump material on the Land without making any proper inquiries to ascertain whether waste could lawfully be dumped there, and whether the owner or lawful occupier of the Land wanted or agreed to receive the waste. Notwithstanding his knowledge of the environmental laws relating to the transport and disposal of waste, and his knowledge that illegal dumping was a plague on the construction industry, and that clandestine tipping operations burden land owners with unwanted waste and fill, Mr Tsompanidis was content to dump material on the Land for payment of a cash fee on the word of an unidentified caller and the unnamed gatekeeper, in circumstances where he knew that the Land was not a waste facility and he did not see any signage indicating that the Land was a construction site. I would have held that this conduct displayed an utter lack of concern for whether Rove would suffer loss as a result of Chomp dumping waste on the Land, but that it fell short of amounting to an intention to cause loss to Rove. The case is distinguishable from IBEB Pty Ltd v Duncan [2011] NSWCA 368, in which the defendant had deliberately provided false information to the purchaser about the business being sold, with the intention that the purchaser would act on that false information.

  4. I would have held that Haulbuild’s conduct referred to at [211]-[225] above did not involve contumelious disregard for Rove’s rights and did not exhibit an intention to cause loss to Rove. In instructing Mr De Bus to cart the material from the George Street site to the Land and dump it there, Mr Awick was relying on instructions that he had received from Mr Moussa of Belzig Pty Ltd, which had engaged Haulbuild for the job. Mr De Bus in turn relied on instructions from Mr Awick. Mr Awick readily accepted in cross-examination that he should have made further inquiries. That concession, made with the benefit of hindsight, constitutes carelessness rather than contumelious disregard for Rove’s rights, and falls a long way short of an intention at the time to cause loss to Rove. Section 34A of the Civil Liability Act does not exclude a defendant who is otherwise a “concurrent wrongdoer” in respect of an “apportionable claim” by reason of carelessness, or even gross negligence: Kayteal Pty Ltd v Dignan [2011] NSW ConvR 56-280; [2011] NSW Titles Cases 80-138; [2011] NSWSC 197 at [64]-[74] (Brereton J, as his Honour then was).

  5. I would have held that Mr El Kadomi’s conduct referred to at [227]-[232] above did not support a finding the he intended to cause loss to Rove. Although he is responsible for his employee’s conduct, Mr El Kadomi had no involvement in Mr Cimone’s decision to dump material on the Land. Mr El Kadomi made the decision not to dump the only load of material that he personally transported to the Land. For the same reasons, Mr El Kadomi cannot fairly be said to have acted with contumelious disregard for Rove’s rights, in my opinion.

  6. As referred to at [234]-[252] above, Mr George Abousleiman dumped waste on the Land on the basis of his brother’s telephone conversation with an unidentified person, without making any proper inquiries about whether the Land could lawfully receive the waste and without identifying any sign indicating that the Land was either a waste facility or a development site. I characterise this conduct in the same way as Chomp’s conduct referred to above. It displayed contumelious disregard for Rove’s rights, but fell short of exhibiting a positive intention to cause loss to Rove.

  7. Mr Daniel Gawidziel’s conduct referred to at [256]-[260] above exhibits carelessness in failing to ensure that he received a copy of the development consent promised by Mitch before allowing his subcontracted driver to dump material at the Land. In my opinion, his conduct falls short of contumelious disregard for Rove’s rights and does not support a finding that he intended to cause loss to Rove.

  8. I now turn to the assessment of the compensatory damages to which Rove is entitled against each defendant for the separate harm that it caused. The measure of damages is that which accords with the compensatory principle of putting Rove in the same position it would have been if that defendant had trespassed and dumped waste on the Land.

  9. Because neither Rove nor the defendants are able to identify the precise material that each of the defendants dumped, the assessment of those compensatory damages as against each defendant cannot be undertaken by quantifying the costs incurred by Rove in removing that precise material. Contrary to the defendants’ submissions, this does not relieve the Court of the obligation to assess damages as best it can on the basis of the available evidence, provided that it has a rational foundation to make an estimate. It is for the plaintiff to adduce such evidence as is reasonably available that will provide that rational foundation: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; (1991) 66 ALJR 123; (1991) 104 ALR 1; [1991] HCA 54 (at 174 CLR 83, per Mason CJ and Dawson J). Rove has provided that rational foundation in this case by adducing evidence from Mr Millard of the total cubic metre volume of waste that was discovered dumped on the Land on 16 July 2018, adducing documentary evidence of work done to remove that material and the costs of that work (including the difference between the cost per cubic metre of removing and disposing of asbestos waste compared to other waste), and by adducing evidence from each of the defendants in cross-examination about the cubic metre capacity of their trucks and the number of occasions on which each of those trucks dumped material on the Land.

  10. The starting point for the quantification of the compensatory damages payable by each defendant is that the total cost incurred by Rove in removing 1,427.3m3 of waste from the Land and disposing of that waste was $945,479.64, which would equate to $662.43 per cubic metre. However, applying that rate to the volume of material dumped by each defendant would incorporate part of the cost of removing and disposing of asbestos waste into the damages payable by each defendant in circumstances where Rove has not established that any defendant’s material in fact contained asbestos waste. Whilst the defendants bore the onus of proving their contention advanced for the purpose of their leave or licence defences that their material was free of asbestos waste, Rove bears the onus of proving that the defendants’ waste did contain asbestos if compensatory damages are to be awarded against them by reference to the cost of removal and disposal of asbestos waste. In my opinion, the approach that best gives effect to the compensatory principle in all the circumstances is to divide the remediation costs into two components for the purpose of quantifying the damages payable by each defendant:

  1. the total costs of $603,920 incurred for the removal and disposal of the waste, [41] which were charged at the rate of $521.38 per cubic metre for asbestos waste and $323.76 per cubic metre for waste that did not contain asbestos; [42]

  2. all other remediation costs paid by Rove, which amount to $341,559.64, [43] or $239.30 per cubic metre. [44]

    41. Exhibit 2, p 453.

    42. See [156] above.

    43. $945,479.64 less $603,920.

    44. $341,559.64 divided by 1,427.3m3.

  1. I reject the submissions made on behalf of Haulbuild and Mr George Abousleiman that the $84,589.07 supervision fee paid to Linx should be excluded from the second component of remediation costs above for the purpose of assessing compensatory damages. There is no principled basis to exclude those costs. As Mr Demian explained in cross-examination, Rove was a land-holding company and it subcontracted the management and supervision of the work to Linx, which had the staff to provide those services. There is no evidence that the amount of the fee for managing and supervising the work, which involved several contractors working on site at various times over the period of approximately six months between February 2019 and July 2019, was excessive.

  2. Applying the rates set out above, the compensatory damages to be awarded in favour of Rove to are to be quantified by applying a cubic metre rate of $563.06 to the cubic metre volume of material that each defendant dumped on the Land. [45] Given the wide variation in the volume of the 209 piles identified in Mr Millard’s report, I consider that this is a more accurate approach to quantification than the approach suggested by Chomp based on attributing a number of piles to each defendant out of the 209 piles.

    45. $323.76 plus $239.30.

  3. On the basis of the cubic metre rate of $563.06 referred to above, together with my earlier findings about the volume of material dumped on the Land by each defendant, I quantify the compensatory damages to be awarded against each defendant as follows:

  1. $20,270.16 against Chomp, which dumped a total volume of approximately 36m3 on the Land;

  2. $23,648.52 against Haulbuild, which dumped a total volume of approximately 42m3 on the Land;

  3. $13,513.44 against Mr El Kadomi, whose employed driver Mr Cimone dumped approximately 24m3 on the Land;

  4. $13,513.44 against Mr George Abousleiman, who dumped approximately 24m3 on the Land; and

  5. $9,386.21 against Mr Daniel Gawidziel, whose subcontracted driver dumped approximately 16.67m3 on the Land.

  1. Rove’s closing submissions made no mention of its pleaded claim for aggravated damages. That claim is therefore taken to be abandoned.

  2. It remains to consider Rove’s claim for exemplary damages.

  3. Exemplary damages are punitive rather than compensatory in nature. They are awarded to express the court’s disapproval of, and to punish, conduct of a defendant who has been guilty of conscious wrongdoing in contumelious disregard of the plaintiff’s rights, and to deter conduct of that nature by the defendant and by other like-minded persons. There is no necessary proportionality between compensatory and exemplary damages: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; (1985) 59 ALJR 352; (1985) 57 ALR 639; [1985] Aust Torts Reports 80-317; [1985] HCA 12 (at 155 CLR at 461, per Gibbs CJ, Mason and Wilson JJ agreeing, and 471, per Brennan J, as his Honour then was), cited with approval in Lamb v Cotogno (1987) 164 CLR 1; (1987) 61 ALJR 549; (1987) 74 ALR 188; [1987] Aust Torts Reports 80-124; (1987) 5 MVR 449; [1987] HCA 47 (at 164 CLR 9-10); TCN v Anning, at [157] and [166] (Spigelman CJ, Mason P and Grove J agreeing).

  4. Consistently with those principles, exemplary damages should be awarded against Chomp and Mr George Abousleiman, but not against Haulbuild, Mr El Kadomi, or Mr Daniel Gawidziel, for the reasons explained at [270]-[274] above.

  5. Rove submitted that exemplary damages should be awarded in such amount as the Court thinks fit. In order to achieve the deterrence objective referred to above, it is my opinion that exemplary damages should be awarded in an amount which makes it prohibitively costly for Chomp, Mr George Abousleiman, and other persons involved in the transport and disposal of waste to dump material on land without first taking proper steps to ascertain whether the owner or lawful occupier consents to receive the material. In my opinion, the determination of such an amount in the case of Chomp and Mr George Abousleiman would be informed by evidence of the revenue they earned from carting each load of material to the Land. There was no evidence before the Court would facilitate an approximately calculation of that revenue. Doing the best I can in the circumstances, I consider that $5,000 per load is an amount of exemplary damages that appropriately marks the Court’s disapproval of the conduct of Chomp and Mr George Abousleiman’s conduct, and that will also have the intended deterrent effect. It follows that exemplary damages will be awarded against Chomp in the amount of $25,000 and against Mr George Abousleiman in the amount of $20,000, in addition to the compensatory damages referred to above.

  6. I acknowledge that the amount of $5,000 per load is significantly less than the penalties payable in respect of an offence under s 143 of the POEO Act. However, I do not consider that the criminal penalty imposed in aid of the protection of the environment should be regarded as a guide to the amount of exemplary damages that appropriately marks disapproval of conduct interfering with Rove’s right of exclusive possession of its land and achieves the desired deterrent effect. The POEO Act and the tort of trespass to land have different objects.

  7. Rove also sought interest under s 100 of the Civil Procedure Act 2005 (NSW). Such interest will be awarded in respect of the awards of compensatory damages for the period from 14 July 2018 until the date of judgment. Such interest is to be calculated in accordance with Practice Note SC Gen 16 – Pre-judgment interest rates. Exemplary damages do not bear interest until the date of judgment: TCN v Anning at [166] (Spigelman CJ, Mason P and Grove J agreeing).

Rove’s applications for default judgment

  1. Rove’s pleaded case against Carlo relates to one alleged trespass on 13 July 2018. Carlo has not filed a defence or played any active role in the proceedings, and did not appear at the final hearing.

  2. Rove’s pleaded case Mr Kataieh relates to one alleged trespass on 13 July 2018. Mr Kataieh has not filed a defence or played any active role in the proceedings, and did not appear at the final hearing.

  3. Rove’s pleaded case against Mr Richard Gawidziel relate to one alleged trespass on 13 July 2018. Mr Richard Gawidziel has not filed a defence or played any active role in the proceedings and did not appear at the final hearing. Mr Daniel Gawidziel sought to represent Mr Richard Gawidziel, but I declined to grant leave to Mr Daniel Gawidziel to do so.

  4. Rove filed a notice of motion on 16 February 2021 seeking default judgment against Carlo, Mr Kataieh, and Mr Richard Gawidziel for damages in an amount to be assessed. On the last day of the final hearing, Rove moved on that motion and adduced evidence of service of the statement of claim in each of those defendants.

  5. The evidence that Rove relied on for the purpose assessing the quantum of damages sought against each of those three defendants by way of default judgment was limited to Mr Demian’s evidence of the remediation operation and the total costs thereof in his affidavit sworn on 12 February 2021. That evidence does not enable the Court to assess the quantum of damages that should be awarded by way of default judgment against each of Carlo, Mr Kataieh and Mr Richard Gawidziel in respect of the undefended claim that each of them trespassed the Land on 13 July 2018. There is no evidence that would provide a rational basis for the Court to estimate the amount of material that each of them dumped on the Land and to then quantify compensatory damages by reference to the total remediation costs in the manner set out at [275]-[280] above. Accordingly, there will be an award of nominal damages of $100 each against Carlo, Mr Kataieh and Mr Richard Gawidziel.

  6. I note for completeness that Rove did not move on the notice of motion for default judgment against Empire Transport Solutions Pty Ltd, Mr Jones, or Mr Daniel Gawidziel. The claim against Mr Daniel Gawidziel has been determined on the basis of his defence filed and evidence given during the final hearing. As referred to at earlier in these reasons, Rove discontinued its claim against Mr Jones during the final hearing and informed the Court that it no longer wished to press its claim against Empire Transport Solutions Pty Limited. As no notice of discontinuance was filed in relation to that defendant, there will be an order dismissing the proceedings against it so as to formally dispose of that claim.

Conclusion and orders

  1. For all of the reasons above, the orders of the Court are as follows:

  1. Judgment in favour of the plaintiff against the first defendant, Chomp Excavation & Demolition Pty Ltd:

  1. for compensatory damages in the sum of $20,270.16, plus interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14 July 2018 calculated in accordance with Practice Note SC Gen 16; and

  2. for exemplary damages in the sum of $25,000.

  1. Judgment in favour of the plaintiff against the second defendant, Carlo Excavations Pty Ltd, for nominal damages in the sum of $100.

  2. Judgment in favour of the plaintiff against the third defendant, Haulbuild Pty Ltd, for compensatory damages in the sum of $23,648.52, plus interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14 July 2018 calculated in accordance with Practice Note SC Gen 16.

  3. Dismiss the plaintiff’s claim against the fourth defendant, Empire Transport Solutions Pty Ltd.

  4. Judgment in favour of the plaintiff against the fifth defendant, Mr Ahmad El Kadomi, for compensatory damages in the sum of $13,513.44, plus interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14 July 2018 calculated in accordance with Practice Note SC Gen 16.

  5. Judgment in favour of the plaintiff against the sixth defendant, Mr Ahmad Kataieh, for nominal damages in the sum of $100.

  6. Judgment in favour of the plaintiff against the eighth defendant, Mr George Abousleiman:

  1. for compensatory damages in the sum of $13,513.44, plus interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14 July 2018 calculated in accordance with Practice Note SC Gen 16; and

  2. for exemplary damages in the sum of $20,000.

  1. Judgment in favour of the plaintiff against the ninth defendant, Mr Daniel Gawidziel, for compensatory damages in the sum of $9,386.21, plus interest on that sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the period from 14 July 2018 calculated in accordance with Practice Note SC Gen 16.

  1. Judgment in favour of the plaintiff against the tenth defendant, Mr Richard Gawidziel, for nominal damages in the sum of $100.

  1. I will hear the parties in relation to costs.

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Annexure A

Annexure B

I certify that the 295 preceding paragraphs

are a true copy of the reasons for judgment

herein of Justice Williams

Dated: 24/03/2023

Associate to Williams J

Endnotes

Amendments

25 March 2023 - Cover sheet amendment: Counsel

Decision last updated: 25 March 2023

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