Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 2) [2020] NSWLEC 98 Hearing dates: 17 June 2020 Decision date: 24 July 2020 Jurisdiction: Class 5 Before: Pain J Decision: See [66]-[67] of judgment Catchwords: PROSECUTION – two charges of knowingly supplying false information – order made at outset of substantive hearing that both charges proceed ex parte – state of mind of individual attributed to corporate defendant – two charges proved beyond reasonable doubt Legislation Cited: Corporations Act 2001 (Cth) Criminal Procedure Act 1986 (NSW) ss 246, 250, Pt 5 Div 2 Land and Environment Court Rules 2007 (NSW) r 5.2 Protection of the Environment Operations Act 1997 (NSW) ss 144AA, 169, 169C, 211 Supreme Court Rules 1970 (NSW) Pt 75 (r 11A) Uniform Civil Procedure Rules 2005 (NSW) r 10.14 Cases Cited: Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 Environment Protection Authority v Aussie Earthmovers Pty Ltd [2018] NSWLEC 91 Environment Protection Authority v Hargraves [2002] NSWLEC 113 Environment Protection Authority v Mouawad [2020] NSWLEC 1 Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65 Harrison v Baring [2012] NSWLEC 117 HL Bolton (Engineering) Company Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159 Leichhardt Council v GRC Projects Pty Ltd (in liquidation) [2014] NSWLEC 122 Lennard's Carrying Company Ltd v Asiatic Petroleum Company Ltd [1915] AC 705 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 R v Cassell (1998) 45 NSWLR 325 Ronowska v Kus (No 2) (2012) 221 A Crim R 261; [2012] NSWSC 817 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Category: Principal judgment Parties: Environment Protection Authority (Prosecutor) Aussie Earthmovers Pty Ltd (Defendant) Representation: COUNSEL: E Muston SC and J Caldwell (Prosecutor) N/A (Defendant) SOLICITORS: Environment Protection Authority (Prosecutor) N/A (Defendant) File Number(s): 18/104771 and 18/104773 Judgment 1. The Prosecutor moves on two summonses filed on 4 April 2018 in which it is alleged that the Defendant committed two offences of knowingly supplying false and misleading information about waste contrary to s 144AA(2) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). 2. The charges concern the alleged supply of false and misleading information about the disposal of asbestos-contaminated waste from a site at 293-297 Abercrombie Street Darlington NSW (Darlington Premises) on 30 June 2016 and 7 July 2016. The Defendant had been subcontracted by Peter O'Brien Constructions Pty Ltd (Peter O'Brien Constructions) to engage in a range of works at the Darlington Premises, including demolishing the existing building, undertaking excavation work and removing all material from the site (Statement of Facts (SOF) pars 5-6 set out below at [35]). In May 2016, asbestos was discovered at the Darlington Premises. Peter O'Brien Constructions engaged the Defendant to dispose of the contaminated waste at a landfill in Kemps Creek (SITA Landfill) operated by SUEZ Recycling and Recovery Pty Ltd, previously known as SITA Australia Pty Ltd (Suez). 3. In proceedings No 104771 of 2018, it is alleged that the Defendant supplied Peter O'Brien Constructions with a "Ticket List Report" purportedly created by Suez in relation to the purported disposal of approximately 84 truckloads of soil contaminated with asbestos at the SITA Landfill (Ticket List Report). In proceedings No 104773 of 2018, it is alleged that Mr Mouawad caused Peter O'Brien Constructions to be supplied with approximately 29 waste disposal dockets purportedly issued by Suez containing information in relation to the purported disposal of 29 truckloads of soil contaminated with asbestos at the SITA Landfill (Waste Disposal Dockets). The Prosecutor alleges that the Ticket List Report and the Waste Disposal Dockets were known to be false at the time they were provided to Peter O'Brien Constructions; they were not created by Suez and, with the exception of one truckload, the waste referred to in those documents was not disposed of at the SITA Landfill. The 29 truck movements referred to in the Waste Disposal Dockets are also referred to in and are a subset of the truck movements referred to in the Ticket List Report. To this extent, there is an overlap in the content of the information which is the subject of the two charges. 4. At the time of the alleged offences, the sole director of the Defendant was Mrs Amal Mouawad (SOF par 2 set out below at [15]). Mr Paul Mouawad, Mrs Mouawad's son, was the Defendant's representative in its dealings with Peter O'Brien Constructions. 5. In separate proceedings, Mr Mouawad has been charged with two offences contrary to s 144AA(2) of the POEO Act in respect of the same conduct which is the subject of the present proceedings (proceedings Nos 104770 and 104772 of 2018). Mr Mouawad entered pleas of guilty to those charges on 23 November 2018. On 6 September 2019, Mr Mouawad filed a notice of motion seeking an order that he be granted leave to reverse his pleas of guilty in the proceedings. On 5 February 2020, Robson J declined to grant leave to Mr Mouawad to withdraw his guilty pleas: Environment Protection Authority v Mouawad [2020] NSWLEC 1. Mr Mouawad is yet to be sentenced for these offences. A sentencing hearing is set down for two days in August 2020. 6. The Prosecutor also moves on an amended notice of motion filed 11 June 2020 seeking an order that the proceedings be heard and determined in the absence of the Defendant on 17 June 2020. The original notice of motion sought an order that the proceedings be heard and determined in the absence of the Defendant on 2 and 3 April 2020. Those hearing dates were vacated. 7. On 8 June 2018, the Prosecutor filed a notice of motion seeking orders for substituted service under r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). On 15 June 2018, Robson J granted the motion and made orders that, in the case of any documents required to be served personally on the Defendant, personal service of the documents on Mrs Mouawad or Mr Mouawad was deemed to be effective service. His Honour also ordered that, in the case of other documents, posting the documents to Mrs Mouawad or Mr Mouawad at their residential addresses was deemed to be effective service: Environment Protection Authority v Aussie Earthmovers Pty Ltd [2018] NSWLEC 91 (CB vol1 tab 5). Legislation Criminal Procedure Act 1986 (NSW) 1. Relevant provisions of the Criminal Procedure Act 1986 (NSW) (CP Act) provide: Part 5 Summary jurisdiction of Supreme Court and other higher courts … Division 2 Appearance of accused persons 246 Orders for appearance or apprehension of accused persons (1) A prosecutor may apply for an order— (a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or (b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order. (2) The application must be in accordance with the rules. (3) The order may be made in the absence of one or both parties. … Division 3 Trial procedure … 250 Procedure where accused person does not obey order to appear If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), the court may, if satisfied that the order was served on the accused person— (a) proceed to hear and determine the matter in the absence of the accused person, or (b) if the court thinks the matter should not proceed on that day or without the accused person, adjourn the hearing to a specified time and place and make an order for the apprehension of the accused person under Division 2. Supreme Court Rules 1970 (NSW) 1. Relevant provisions of the Supreme Court Rules 1970 (NSW) (SCR) provide: Part 75 Criminal proceedings … Division 2 Summary jurisdiction … 11A Procedure where defendant does not appear If a defendant charged with two or more offences, whether of a like or different nature, does not appear at the time and place appointed for the hearing of the charges by the orders relating thereto, the Judge, upon proof in the manner prescribed of the due service of the orders upon him a reasonable time before the time appointed for his appearance, may proceed to hear and determine all or any of the charges together and adjudicate thereon in the absence of the defendant. Protection of the Environment Operations Act 1997 (NSW) 1. Relevant provisions of the POEO Act provide: Part 5.6 Land pollution and waste … Division 3 Waste offences … 144AA False or misleading information about waste (1) A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence. It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect. Maximum penalty— (a) in the case of a corporation—$250,000, or (b) in the case of an individual—$120,000. (2) A person who supplies information about waste to another person in the course of dealing with the waste, being information that the person knows is false or misleading in a material respect, is guilty of an offence. Maximum penalty— (a) in the case of a corporation—$500,000, or (b) in the case of an individual—$240,000 or imprisonment for 18 months, or both. (2A) If the court is satisfied that a person charged with an offence under subsection (2) is not guilty of that offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), the court may find the person guilty of the offence under subsection (1), and the person is liable to punishment accordingly. (2B) Proceedings for an offence under subsection (2) may not be dealt with before the Local Court despite section 215. (3) In this section, information is taken to be supplied to a person in the course of dealing with waste if it is supplied— (a) in the course of an activity relating to the sale or disposal of waste, or (b) in the course of an activity relating to the storage, transport, handling, deposit, transfer, processing, recycling, recovery, re-use or use of the waste. (4) In this section, information about waste means information about any of the following— (a) the type, classification, characteristics, composition or quantity of the waste, (b) the actual or proposed storage, transport, handling, deposit, transfer, disposal, processing, recycling, recovery, re-use or use of the waste, (c) the hazards or potential harm to the environment or human health associated with the waste or an activity referred to in paragraph (b). (5) In this section, information includes a record containing information. (5A) In this section, supply information includes cause or permit information to be supplied. (6) Proceedings for an offence against this section may be instituted only by the EPA. … Part 5.9 General offences … 169C Evidence as to state of mind of corporation (1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind. (2) In this section, the state of mind of a person includes— (a) the knowledge, intention, opinion, belief or purpose of the person, and (b) the person's reasons for the intention, opinion, belief or purpose. 1. The Prosecutor provided the Court with a three volume court book from which evidence relied on in both the ex parte notice of motion and the hearing on liability was drawn. The evidence relied on in the ex parte notice of motion is summarised in [13]-[14] below. The evidence relied on in the hearing on liability is summarised in [32]-[34] below. Ex parte hearing notice of motion 1. The Prosecutor's amended notice of motion to proceed ex parte on 17 June 2020 was determined first and an order was made in court on 17 June 2020. This judgment records the Prosecutor's evidence and my reasons for making that order. Evidence on ex parte notice of motion hearing 1. The Prosecutor read the following affidavits on the ex parte notice of motion: 1. an affidavit of service of Tara Mills sworn on 29 June 2018 (CB vol 2 tab 31); 2. an affidavit of service of Kevin Willis affirmed on 2 April 2020 (CB vol 2 tab 32); 3. an affidavit of Ryan Verzosa affirmed on 15 April 2020 (CB vol 2 tab 33); and 4. an affidavit of service of Perry Gamsby sworn 15 June 2020 (filed 16 June 2020). 1. In addition the Prosecutor relied on a letter from the Prosecutor to Mrs Mouawad as former director of the Defendant dated 10 June 2020 attaching amended orders made under s 246(1)(a) of the CP Act (see [23] below) and advising on how to attend the hearing on 17 June 2020 by Microsoft Teams and a letter from the Prosecutor to Mrs Mouawad dated 17 April 2020 enclosing the affidavits listed above in [13(a)]-[13(c)]. A letter from the registry of the Australian Securities and Investment Commission (ASIC) to the Prosecutor dated 23 April 2020 advising that the Prosecutor's application to defer the deregistration of the Defendant had been approved was also read. All documents were marked Exhibit A. Statement of facts relevant to ex parte notice of motion 1. The Prosecutor's SOF was marked MFI-1. The SOF referred to the evidence for each stated fact. The relevant paragraphs for the amended ex parte notice of motion are as follows: The defendant 2. Aussie Earthmovers is registered as a company under the Corporations Act 2001 (Cth) (Corporations Act). At the time of the offences, the sole director of Aussie Earthmovers was Mrs Amal Mouawad. The sole shareholder of Aussie Earthmovers is Ozzy Earthmovers Pty Ltd. The registered office of both Aussie Earthmovers and Ozzy Earthmovers Pty Ltd is recorded as SRS Business & Accounting Solutions, 517 Church Street, North Parramatta (Certificates under s 1274B of the Corporations Act 2001 (Cth) dated 26 March 2018 and 1 April 2020 (Exhibit F / CB Volume 1, pp 40-51). 3. Mr Paul Mouawad, also known as Boulos Isaac (Mr Mouawad), is the son of Mrs Mouawad. He was the defendant's representative in its dealings with Peter O'Brien Constructions. … Service of documents in the Proceedings on Aussie Earthmovers 74. On 4 April 2018, the EPA commenced the Proceedings against Aussie Earthmovers by the filing of two summonses. On that date, the Court also made orders under s 246(1)(a) of the Criminal Procedure Act 1986 (NSW) (CP Act) that Aussie Earthmovers appear before a judge of the Court to answer the charges in the Proceedings. Due to an administrative oversight, these orders did not specify the date and time at which Aussie Earthmovers must appear to answer the charges. 75 The EPA's solicitor, Ryan Verzosa, attempted to serve the summonses by posting the documents to Aussie Earthmovers at its registered office. However, the summonses were returned to the EPA, having been marked by Australia Post as "return to sender", prompting Mr Verzosa to make enquiries as to the status of Aussie Earthmovers (Affidavit of Ryan Verzosa affirmed 15 April 2020 (Verzosa Affidavit) at [2], [4]-[8] and Annexure B (CB Volume 2, pp 247-248, 261-262)). The enquiries confirmed (Verzosa Affidavit at [8] and Annexure D (CB Volume 2, pp 248, 265-269)): (a) Aussie Earthmovers' registered office was vacant; (b) There were no longer any current company directors or secretaries for Aussie Earthmovers; and (c) The most recent company director and company secretary was "Amal Mouawad, 52 Gladstone Street, North Parramatta NSW 2151", who was removed as a company director and the company secretary on 20 December 2017. 76. On 8 June 2018, the EPA filed a notice of motion seeking orders for substituted service of the summonses under r 10.14 of the Uniform Civil Procedure Rules 2005 (UCPR) (Verzosa Affidavit at [9]-[10] (CB Volume 2, p 249)). 77 On 15 June 2018, the EPA's notice of motion seeking orders for substituted service was heard by the Court. Orders were made under r 10.14 of the UCPR as follows: (1) Service of the Court documents in proceedings numbered 00104771 and 00104773 of 2018 be deemed to be effective service on the defendant if served in the following manner: (a) In the case of any documents requiring to be served personally on Aussie Earthmovers Pty Ltd, by personally serving the Court documents on either of the following: (i) Amal Mouawad of 52 Gladstone Street, North Parramatta NSW 2151; or (ii) Paul Mouawad (also known as Boulos Isaac) of 19 Settlers Close, Castle Hill NSW 2154. (b) In the case of any other Court documents requiring to be served on Aussie Earthmovers Pty Ltd, by posting the documents to either of the following: (i) Amal Mouawad of 52 Gladstone Street, North Parramatta NSW 2151; or (ii) Paul Mouawad (also known as Boulos Isaac) of 19 Settlers Close, Castle Hill NSW 2154 (Verzosa Affidavit at [11] (CB Volume 2, p 249)). 78. On 20 June 2018, Mrs Mouawad was personally served by a licensed process server with the two summonses in the Proceedings, sealed copies of the Court's orders dated 4 April 2018 and 15 June 2018, two certificates under s 1274B of the Corporations Act and s 49 of the Births, Deaths and Marriages Registration Act 1995 and six affidavits filed in the Proceedings (Affidavit of Tara Mills sworn 29 June 2018 (CB Volume 2, p 233); Verzosa Affidavit at [12] and Annexure E (CB Volume 2, pp 249-250, 270-271)). 79. On 22 June 2018, the EPA sent by post to Mrs Mouawad a further 21 affidavits filed in the Proceedings (Verzosa Affidavit at [13] and Annexure F (CB Volume 2, pp 250, 272-273)). 80. On 7 September 2018, the EPA sent by post to Mrs Mouawad a copy of a notice of prosecution case under s 247E of the CP Act, the prosecutor's statement of facts, an affidavit of service and nine statements and two records of interview relating to the Proceedings (Verzosa Affidavit at [17] and Annexure H (CB Volume 2, pp 250, 275-276)). 81. On 8 March 2019, the EPA filed a notice of motion seeking an order under s 250 of the CP Act for the Court to proceed to hear and determine the matter in the absence of Aussie Earthmovers on 2 and 3 April 2019 (the ex parte motion) (Verzosa Affidavit at [23] (CB Volume 2, p 252)). 82. On 8 March 2019, the EPA sent by post to Mrs Mouawad a copy of the ex parte motion (Verzosa Affidavit at [23] and Annexure M (CB Volume 2, pp 252, 282)). 83. On 18 March 2020, the EPA sent by post to Mrs Mouawad a further copy of the ex parte motion and advising Mrs Mouawad that the Proceedings and the ex parte motion were listed for hearing on 17 June 2020 (Verzosa Affidavit at [32] and Annexure O (CB Volume 2, pp 253, 284)). 84. On 30 March 2020, Mrs Mouawad was personally served (in accordance with the requirements under r 10.26 of the UCPR) with a copy of the ex parte motion and with a letter from the EPA in relevantly identical terms to its letter dated 18 March 2020 (Affidavit of Kevin Willis affirmed 2 April 2020 (CB Volume 2, p 236); Verzosa Affidavit at [33] and Annexure P (CB Volume 2, pp 253, 285). See also r 10.26 of the UCPR). 85. On 17 April 2020, the EPA sent by post to Mrs Mouawad a further 3 affidavits in the Proceedings (Court Book, Volume 2, Tab 37 (Exhibit A (see Letter from EPA to Mrs Mouawad dated 17 April 2020) / CB Volume 2, p 364)). 86. On 10 June 2020, the Court made amended orders under s 246(1)(a) of the CP Act that Aussie Earthmovers appear before a judge of the Court to answer the charges in the proceedings at 10:00am on 17 June 2020 via Microsoft Teams as notified to Aussie Earthmovers by the EPA, or by alternative means to be applied for by Aussie Earthmovers, such as telephone. 87. On 13 June 2020, Mrs Mouawad was personally served with copies of the amended orders under s 246(1)(a) of the CP Act Attempts are presently being made to serve the amended orders under s 246(1)(a) of the CP Act on the defendant, along with an amended copy of the ex parte motion, which seeks an order under s 250 of the CP Act for the Court to proceed to hear and determine the matter in the absence of Aussie Earthmovers on 17 June 2020, rather than on 2 and 3 April 2019 (Affidavit of Perry Gamsby sworn 15 June 2020; Exhibit A (see Letter from EPA to Mrs Mouawad dated 10 June 2020)). 88. Between 1 June 2018 and 3 April 2020, the Proceedings were listed for mention 16 times. On each occasion, there was no appearance entered for Aussie Earthmovers (Verzosa Affidavit at [9]-[34] (CB Volume 2, pp 249-254)). At no time has the EPA received any communication from Mrs Mouawad or Aussie Earthmovers in relation to the Proceedings (Verzosa Affidavit at [9]-[34] (CB Volume 2, pp 249-254)). Status of Aussie Earthmovers 89. On 18 April 2017, the Australian Securities & Investments Commission (ASIC) published a notice of proposed deregistration under s 601AB of the Corporations Act in relation to Aussie Earthmovers (Verzosa Affidavit at [35] and Annexure R (CB Volume 2, pp 254, 287). On a number of occasions since the publication of the notice of proposed deregistration, the EPA has applied to defer the deregistration of Aussie Earthmovers until such time that the Proceedings have been finalised. The EPA has received several emails and letters from ASIC confirming that it has deferred its proposal to deregister Aussie Earthmovers (Verzosa Affidavit at [36] and Annexure S (CB Volume 2, pp 254, 288-294)). 90. On 1 April 2020, an ASIC Company Extract was obtained for Aussie Earthmovers, which confirmed that the company continued to exist as a company under the Corporations Act as at that date (Verzosa Affidavit at [37]-[38] and Annexure T (Exhibit F / CB Volume 2, pp 254, 295-299)). 91. On 29 April 2020, the EPA received a letter from ASIC stating that the deregistration of Aussie Earthmovers had been extended by 90 days from 23 April 2020, the date of ASIC's letter (Court Book Volume 2, Tab 38 (Exhibit A (see Letter from ASIC dated 23 April 2020)./ CB Volume 2, p 365)). Prosecutor's submissions on ex parte notice of motion 1. The Prosecutor submitted that the first precondition to the Court proceeding to hear and determine a matter in the absence of an accused person under s 250(1)(a) of the CP Act is that the Defendant has not appeared on the day and at the time and place set by an order served under Div 2 of Pt 5 of that Act (namely, an order under s 246 of the CP Act) or on a day to which a hearing has been adjourned. The second precondition to the Court proceeding to hear the matter in the absence of a defendant under s 250(1)(a) is that the Court is satisfied that the order made under s 246 was served on the Defendant. If the two preconditions are satisfied, the Court has a discretion under s 250(1)(a) as to whether to proceed to hear and determine the matter in the absence of the accused person: Leichhardt Council v GRC Projects Pty Ltd (in liquidation) [2014] NSWLEC 122 at [17]-[20] (Preston CJ); see also Ronowska v Kus (No 2) (2012) 221 A Crim R 261; [2012] NSWSC 817 at [61] per Pembroke J. 2. This Court may also proceed to hear and determine two or more charges in the absence of a defendant under Pt 75 r 11A of the SCR – which applies to Class 5 proceedings by virtue of r 5.2 of the Land and Environment Court Rules 2007 (NSW) – if the defendant "does not appear at the time and place appointed for the hearing of the charges by the orders relating thereto" and the Court is satisfied of the due service of the orders upon the defendant at a reasonable time before the time appointed for the defendant's appearance: Harrison v Baring [2012] NSWLEC 117 at [1] (Pain J). 3. On 4 April 2018, the Court made orders under s 246(1)(a) of the CP Act that the Defendant appear before a judge of the Court to answer the charges in the proceedings. Due to an administrative oversight, these initial s 246 orders did not specify the date and time at which the Defendant must appear to answer the charges (SOF par 74). 4. The Prosecutor attempted to serve the summonses and the initial s 246 orders on the Defendant at its registered office, but they were returned to the Prosecutor, having been marked "return to sender". Subsequent inquiries by the Prosecutor revealed that the Defendant's registered office was vacant and that the Defendant no longer had any current company directors or secretaries (SOF par 75). 5. On 8 June 2018, the Prosecutor filed a notice of motion seeking orders for substituted service under UCPR r 10.14 . On 15 June 2018, Robson J granted the motion and made orders that, in the case of any documents required to be served personally on the Defendant, personal service of the documents on Mrs Mouawad or Mr Mouawad was deemed to be effective service. His Honour also ordered that, in the case of other documents, posting the documents to Mrs Mouawad or Mr Mouawad at their residential addresses was deemed to be effective service: Environment Protection Authority v Aussie Earthmovers Pty Ltd (CB vol 1 tab 5). 6. The two summonses commencing the proceedings and copies of the initial s 246 orders were personally served on Mrs Mouawad on 20 June 2018 (SOF par 78). A copy of the ex parte motion was sent by post to Mrs Mouawad on 8 March 2019. Further copies of the ex parte motion were sent by post to Mrs Mouawad on 18 March 2020, and served on her personally on 30 March 2020, with cover letters advising her that the original ex parte motion and the substantive proceedings had been listed for hearing on 17 June 2020 (SOF pars 83-84). 7. On 10 June 2020, the Court made amended orders under s 246(1)(a) of the CP Act that the Defendant appear before a judge of the Court to answer the charges in the proceedings at 10:00am on 17 June 2020 via Microsoft Teams as notified to the Defendant by the Prosecutor, or by alternative means to be applied for by the Defendant such as telephone. 8. The amended s 246 orders have been served on the Defendant, along with a copy of the amended ex parte motion. 9. As the amended s 246 orders have been served on the Defendant and there was no appearance for the Defendant on 17 June 2020, the two preconditions to the making of an order under s 250 of the CP Act have been satisfied. 10. No appearance has been entered on behalf of the Defendant at any stage of the proceedings and the Prosecutor has received no correspondence or communication from the Defendant (SOF par 88). The Defendant has been on notice since at least 30 March 2020 that the proceedings were listed for hearing on 17 June 2020. There do not appear to be any circumstances suggesting that it would be unfair or unjust for the Court to proceed to hear and determine the matter in the absence of the Defendant. 11. The Defendant is registered as a company under the Corporations Act 2001 (Cth) (SOF par 2). There are no current company directors or secretaries for the Defendant (SOF par 75(b)). The most recent company director was Mrs Mouawad who was removed as company director and as company secretary on 20 December 2017 (SOF par 75(c)). 12. ASIC published a notice of proposed deregistration in respect of the Defendant on 18 April 2017. The Prosecutor has made multiple requests to ASIC for the deregistration of the Defendant to be postponed until these proceedings have been finalised. Most recently on 29 April 2020 ASIC advised the Prosecutor that the deregistration of the Defendant had been extended by 90 days from 23 April 2020 (SOF pars 89-91). 13. Accordingly this Court should exercise its discretion to proceed to hear and determine the matter in the absence of the Defendant under s 250 of the CP Act. Finding on ex parte notice of motion 1. I accepted the Prosecutor's submissions that the preconditions in s 250 of the CP Act were satisfied given the evidence relied on by the Prosecutor. This included substituted service of the amended order made on 10 June 2020 advising of the hearing date of 17 June 2020. I also note that the company continues to exist as identified by ASIC correspondence referred to in [14] above. 2. I made the order sought in the amended notice of motion that both charges proceed ex parte in the following terms: That the court, pursuant to s 250 of the Criminal Procedure Act 1986, proceed to hear and determine Matters No. 104771 and 104773 of 2018 in the absence of the Defendant at the hearing listed on 17 June 2020. Liability of Defendant for two charges Elements of offences under s 144AA(2) of the POEO Act 1. In order to establish that the Defendant committed the alleged offences, the Prosecutor must prove to the criminal standard: 1. that the Defendant supplied information about waste to another person; 2. that the information was supplied in the course of dealing with the waste; 3. that the information was false or misleading in a material respect; and 4. that the Defendant knew the information was false or misleading in a material respect. Evidence on liability for two charges 1. The Prosecutor read the following affidavits (CB vols 1 and 2): 1. Leanne Kable affirmed 1 February 2018; 2. Peter O'Brien sworn 1 February 2018; 3. Lawrence Crestani affirmed 9 February 2018; 4. Desmond John Powell affirmed 10 February 2018; 5. Nathan Cussen affirmed 20 February 2018; 6. Gerard Hartmann sworn 2 March 2018; 7. Carol Martin affirmed 2 March 2018; 8. Carney Yu sworn 6 March 2018; 9. Bradley Thomas Wade sworn 7 March 2018; 10. Stan Gallo sworn 12 March 2018; 11. Laura Ansted affirmed 12 March 2018; 12. Michelle Ann Roberts sworn 13 March 2018; 13. Philip James Carbins affirmed 15 March 2018; 14. Stephen Rich affirmed 20 March 2018; 15. Catherine Betro sworn 23 March 2018; 16. Grace Pollock sworn 26 March 2018; 17. Philip James Carbins affirmed 27 March 2018; 18. Roberto Antonio Pupo sworn 28 March 2018; 19. Roberto Antonio Pupo sworn 4 May 2018; 20. Neil Pascua sworn 11 May 2018; 21. Arnold Jansen sworn 23 May 2018; and 22. Ian Miller sworn 8 June 2018. 1. Copies of the annexures to some of the affidavits where not in the court book, were provided to the Court in separate folders. The Prosecutor also provided full copies of the exhibits to several of the affidavits listed in the preceding paragraph from which the documents in volume 3 of the court book were extracted. The Prosecutor tendered volume 3 of the court book which consisted of the most relevant documents extracted from various exhibits to the affidavits. Volume 3 was marked as Exhibit B. 2. The Prosecutor also tendered additional affidavits and documents as follows: 1. an affidavit of Lawrence Crestani affirmed on 9 August 2016, which forms part of tab 1 of Exhibit LC-1 to the affidavit of Lawrence Crestani affirmed on 9 February 2018 (CB vol 2 tab 34), attesting to events in June 2016 when Mr Crestani as project manager for Peter O'Brien Constructions was liaising with Mr Mouawad and subsequent communications with Suez confirming that dockets provided to him by Mr Mouawad were fraudulent (Exhibit C); 2. a statement of Lawrence Crestani dated 21 September 2017, which also forms part of Tab 1 of Exhibit LC-1 to the affidavit of Lawrence Crestani affirmed on 9 February 2018 (CB vol 2 tab 35), which sets out Mr Crestani's experiences as project manager for Peter O'Brien Constructions and his dealings with Mr Mouawad in 2016 (Exhibit D); 3. Exhibit CB-1 pp 83-85 to the Betro affidavit sworn 23 March 2018 consisting of: (i) a copy of a handwritten document dated 14 September 2015 appearing to sign over all shares in the Defendant company to Mr Mouawad inter alia (p 83); (ii) a letter from Mr Mouawad as general manager of the Defendant to Vodafone Hutchison Australia Pty Ltd (Vodafone) identifying himself as new owner, sole shareholder and general manager of the Defendant company and requesting that the prior director's name and details be removed from the company's Vodafone account (p 84); and (iii) a copy of minutes of a meeting of shareholders of the Defendant company dated 14 September 2015 resolving to appoint Mr Mouawad as authorised representative to act on behalf of Mrs Mouawad as director of the company (p 85) (Exhibit E); 4. an ASIC "Current & Historical Extract" for the Defendant detailing current and former company addresses and officers inter alia (CB vol 1 tab 7 pp 47-51) (Exhibit F); and 5. exhibit PC-2 to the affidavit of Phillip Carbins affirmed 15 March 2018 made up of copies of dockets referred to in par 12 of the affidavit, being copies of dockets held in Suez's business systems (Exhibit G). Statement of facts relevant to liability 1. The parts of the SOF marked MFI-1 relevant to liability for the two charges are as follows: The SITA Landfill 4. Suez operates a landfill site located at 1725 Elizabeth Drive, Kemps Creek (Affidavit of Philip James Carbins affirmed 27 March 2018 (27 March 2018 Carbins Affidavit) at [8] (CB Volume 2, p 18)). Suez is licensed to receive various types of waste at that landfill site, including asbestos waste (27 March 2018 Carbins Affidavit at [11] (CB Volume 2, p 19)). Suez was formerly registered as SITA Australia Pty Ltd (SITA) until the company name was changed on 24 December 2015 (27 March 2018 Carbins Affidavit at [1] (CB Volume 2, p 17). As a result, references to "SITA" are used interchangeably with "Suez" within this document. At the time of the offences, the landfill site was still referred to as the "SITA Landfill". As such, the landfill site at Elizabeth Drive, Kemps Creek is referred to below as the "SITA Landfill". The Darlington Premises 5. On or about 23 December 2015, a developer, Northwest 1 Pty Ltd (Northwest), engaged Peter O'Brien Constructions as the principal contractor to construct residential apartments at 293-297 Abercrombie Street, Darlington NSW (the Darlington Premises) (Affidavit of Peter O'Brien sworn 1 February 2018 (O'Brien Affidavit) at [6] and [8]-[9] (CB Volume 1, pp 59-60)). The project involved the demolition of existing structures and the construction of 17 boutique apartments at the Darlington Premises (O'Brien Affidavit at [8] (CB Volume 1, p 60)). Included in the works were the demolition of the existing building, bulk excavation, detailed excavation, shoring and the removal and disposal of waste generated at the Darlington Premises (O'Brien Affidavit at [8] (CB Volume 1, p 60)). The following staff of Peter O'Brien Constructions were involved in managing the works at the Darlington Premises: a. Mr Stephen Rich, the Site Manager, who was responsible for running the building site, site safety, managing site subcontractors and liaising with the local council (Affidavit of Stephen Rich affirmed 20 March 2018 (Rich Affidavit) at [1] and [8] (CB Volume 1, pp 191-192)); b. Mr Lawrence Crestani, the Project Manager, who was responsible for overseeing the construction activities and building works and the activities of the Site Manager (Affidavit of Lawrence Crestani affirmed 9 February 2018 (9 February 2018 Crestani Affidavit) at [2] (CB Volume 1, p 68)); and c. Mr Desmond Powell, the Construction Manager, who was responsible for ensuring compliance with the contract with Northwest and the construction program and overseeing the activities of the Project Manager (Affidavit of Desmond John Powell affirmed 10 February 2018 (Powell Affidavit) at [2] (CB Volume 1, p 75); 9 February 2018 Crestani Affidavit at Tab 1 of Exhibit LC-1 (see Statement of Lawrence Crestani dated 21 September 2017 at [4]) (Exhibit D / CB Volume 2, p 314)). 6. On or about 11 February 2016, Peter O'Brien Constructions entered into a subcontract with Aussie Earthmovers for demolition, piling, shoring and bulk excavation works at the Darlington Premises. The subcontract was to demolish the existing building, provide ground works (piers, shotcrete and capping beams) and to excavate and remove all material from site to design levels. (Rich Affidavit at [10] (CB Volume 1, pp 192-193); Powell Affidavit at Tab 1 of Exhibit DJP-1 (Exhibit B / CB Volume 3, pp 11-53)) Under the subcontract: a. Mr Mouawad was listed as the "Principal / Owner" of Aussie Earthmovers (See Powell Affidavit at Tab 1 of Exhibit DJP-1 at p 26 (Exhibit B / CB Volume 3, p 36)); b. Mr Mouawad was listed as the "Subcontractor's representative" (See Powell Affidavit at Tab 1 of Exhibit DJP-1 at p 27 (Exhibit B / CB Volume 3, p 37)); and c. Mr Rich was listed as the "Contractor's representative" (See Powell Affidavit at Tab 1 of Exhibit DJP-1 at p 27 (Exhibit B / CB Volume 3, p 37)). 7. In his role as Site Manager, all of Mr Rich's dealings with Aussie Earthmovers under the subcontract were with Mr Mouawad (Rich Affidavit at [11] (CB Volume 1, p 193)). In his role as Project Manager, Mr Crestani dealt with Mr Mouawad on site, as Mr Mouawad was the person who made the decisions in relation to the demolition (9 February 2018 Crestani Affidavit at [5] (CB Volume 1, p 69)). Discovery of asbestos-contaminated waste at the Darlington Premises 8. In May 2016, a few weeks after demolition of the existing building had commenced, the ground slab was removed and possible asbestos was observed in the filling material under the slab (9 February 2018 Crestani Affidavit at [6] (CB Volume 1, p 69); Rich Affidavit at [13] (CB Volume 1, p 193)). At the time, Mr Rich and Mr Mouawad alerted Mr Crestani, who subsequently alerted Northwest (9 February 2018 Crestani Affidavit at [6] (CB Volume 1, p 69)). Northwest subsequently engaged JBS&G Australia Pty Ltd (JBS&G) to conduct testing of the fill located at the Darlington Premises (9 February 2018 Crestani Affidavit at [6] (CB Volume 1, p 69)). A detailed site inspection was subsequently undertaken by JBS&G to determine the extent of contamination (Affidavit of Nathen Cussen affirmed 20 February 2018 (Cussen Affidavit) at [13]-[16] (CB Volume 1, p 91)). 9. On 6 May 2016, Mr Mouawad sent Mr Rich an email attaching an Asbestos Removal Control Plan (ARCP), setting out Aussie Earthmovers' proposal for the removal of waste from the Darlington Premises (Rich Affidavit at [38] and Tab 6 of Exhibit SR-1 (CB Volume 1, p 197; Exhibit B / CB Volume 3, pp 55-57)). The ARCP included the following statements: a. "All waste to be taken and disposed of at an EPA licensed Landfill"; b. "Tip dockets to be provided to Peter O'Brien Constructions"; and c. "Representative responsible for the preparation of the ARCP is Paul Mouawad. Consultation of all personnel to be implemented by Paul Mouawad Site manager for Aussie Earthmovers Pty Ltd and Stephen Rich site manager for Peter O'Brien Constructions" (See Tab 6 of Exhibit SR-1 and Tab 2 of Exhibit DJP-1, p 2 (Exhibit B / CB Volume 3, p 57).). 10. On 10 May 2016, Mr Mouawad sent Mr Crestani an email stating that: "The cost for the removal of the soils containing asbestos is $180.00 per tonne + GST. The tip for the material is Sita" (referring to the SITA Landfill) (Affidavit of Catherine Betro affirmed 23 March 2018 (Betro Affidavit) at Exhibit CB-1, p 197 (Exhibit B / CB Volume 3, p 59)). 11. On 11 May 2016, Mr Mouawad sent Mr Rich an email advising him that Aussie Earthmovers could not proceed with the works any further "as over half the site contains a large quantity of asbestos within the fill material and on the existing surface" (Rich Affidavit at [39] and Tab 7 of Exhibit SR-1 (CB Volume 1, p 197; Exhibit B / CB Volume 3, p 61)). 12. On 23 May 2016, Mr Nathan Cussen, an Environmental Consultant at JBS&G, issued a waste classification report for the Darlington Premises, which concluded that: a. Approximately 10m3 of Hazardous Waste/Special (asbestos) (HW/S) was present at the Darlington Premises; and b. Approximately 400m3 of General Solid Waste (GSW)/Special (asbestos) was present at the Darlington Premises, comprising the top 0.5 metres of fill across the Darlington Premises (Cussen Affidavit at [17] and Tab 3 of Exhibit NC-1 (CB Volume 1, pp 91-92; Exhibit B / CB Volume 3, pp 63-360)). 13. On 26 May 2016, Mr Mouawad submitted a Notification of Asbestos Removal Work form (the Notification Form) to WorkCover NSW. The Notification Form indicated that up to 500m2 of asbestos-contaminated soil was proposed to be loaded onto trucks and disposed of at a landfill. The Notification Form listed Aussie Earthmovers as the licensed asbestos removalist and Mr Mouawad as the supervisor of the proposed works (Betro Affidavit at Exhibit CB-1, pp 218-224 (Exhibit B / CB Volume 3, pp 361-367)). 14. On 2 June 2016, Mr Crestani sent an email to Mr Mouawad setting out Peter O'Brien Constructions' proposal for the removal of the asbestos-contaminated material from the Darlington Premises (9 February 2018 Crestani Affidavit at [9] and Tab 2 of Exhibit LC-1 (CB Volume 1, p 70; Exhibit B / CB Volume 3, p 369)). 15. On 2 June 2016, Mr Mouawad sent Mr Crestani an email with a counter offer in relation to the removal of the asbestos-contaminated material from the Darlington Premises (9 February 2018 Crestani Affidavit at [9] and Tab 2 of Exhibit LC-1 (CB Volume 1, p 70; Exhibit B / CB Volume 3, p 373)). 16. On 2 June 2016, Mr Crestani sent Mr Mouawad an email confirming Peter O'Brien Constructions' agreement with Aussie Earthmovers' counter offer to dispose of the asbestos-contaminated waste at the Darlington Premises (Betro Affidavit at Exhibit CB-1, pp 231-232 (Exhibit B / CB Volume 3, p 377)). 17. On 2 June 2016, Mr Mouawad sent Mr Rich an email attaching a copy of a Safe Work Method Statement (SWMS) for the removal of asbestos-contaminated soil at the Darlington Premises (Rich Affidavit at [40] and Tab 8 of Exhibit SR-1 (CB Volume 1, p 197; Exhibit B / CB Volume 3, pp 381-390)). The SWMS included, inter alia: a. A statement that "All waste to be taken and disposed of at an EPA licensed landfill"; b. A statement that the "Representative responsible for the preparation of the SWMS is Paul Mouawad"; and c. A table identifying risks associated with removal of the asbestos-contaminated soil and the safety controls in place to minimise these risks. One of the risks identified in the table was "Waste could be disposed of at the wrong place". The safety control said to be in place to mitigate this risk was "Tipping dockets to be provided" (A copy of the SWMS is at Tab 8 of Exhibit SR-1 (Exhibit B / CB Volume 3, p 381-390)). 18. On 3 June 2016, Mr Crestani sent Mr Mouawad an email advising him that Aussie Earthmovers was required to comply with Development Application conditions that had been placed by the local council on the removal of asbestos. Under condition 45(f), it was a requirement that: "Asbestos to be disposed of must only be transported to waste facilities licensed to accept asbestos" (9 February 2018 Crestani Affidavit at [9] and Tab 2 of Exhibit LC-1 (CB Volume 1, p 70; Exhibit B / CB Volume 3, pp 391-393)). The transport of asbestos-contaminated waste from the Darlington Premises 19. During June and July 2016, Mr Mouawad arranged for trucks to remove asbestos-contaminated waste from the Darlington Premises (Rich Affidavit at [17]; 9 February 2018 Crestani Affidavit at [8] (CB Volume 1, p 193; CB Volume 1, pp 69-70)). The trucks used to remove asbestos-contaminated waste from the Darlington Premises were under contract to Mr Mouawad (Rich Affidavit at [17] (CB Volume 1, p 193)). During this period, Peter O'Brien Constructions employees created the following records in order to ensure that material from the Darlington Premises was disposed of at the SITA Landfill: a. Waste Tracking Forms: As each truck left the Darlington Premises, a "Waste Tracking Form" (containing details of the time the truck left the site, the type of material on the truck and where the material was to be taken) was given to each truck driver by a Peter O'Brien Constructions employee (Rich Affidavit at [20] (CB Volume 1, p 194)). On each occasion, the truck driver was told that the Waste Tracking Form was to be handed to the weighbridge at the SITA Landfill, where it had been agreed that the material would be disposed (Rich Affidavit at [20] (CB Volume 1, p 194)). b. Truck Run Sheets: Peter O'Brien Constructions employees also kept logs of what trucks attended the Darlington Premises and what they were leaving with on "Truck Run Sheets" (Rich Affidavit at [22] (CB Volume 1, p 194). A copy of the Truck Run Sheets is at Tab 4 of Exhibit SR-1 (Exhibit B / CB Volume 3, p 395)). The Truck Run Sheets were a daily record of the types and registration numbers of trucks on site, the times each truck left the site, the number of times each truck took loads from the site that day, the type of load (eg classification) on each truck and where the material on each truck was going to be tipped (Rich Affidavit at [22] (CB Volume 1, p 194); Affidavit of Gerald Hartmann affirmed 2 March 2018 (Hartmann Affidavit) at [6] (CB Volume 1, p 95)). The Truck Run Sheets were recorded to enable Peter O'Brien Constructions to cross check what left the site with what was disposed of at the SITA Landfill (Rich Affidavit at [23] (CB Volume 1, pp 194-195); Hartmann Affidavit at [6] (CB Volume 1, p 95). The Truck Run Sheets indicate that between 3 June 2016 and 29 July 2016, a total of 134 truckloads of asbestos-contaminated waste was transported from the Darlington Premises by vehicles with the registration numbers BX88NU, CG33XH, CB87NU, CH61ZZ, CG41GA, CD69AW, CE03HI, CH24YS, CH45NL, CH08VZ, CB90WR, CH16HO, CH86PN and CG45ML (Rich Affidavit at [22]-[23] and Tab 4 of Exhibit SR-1 (CB Volume 1, pp 194-195; Exhibit B / CB Volume 3, pp 395-413)). 20. Mr Mouawad engaged a company by the name of S A Civil (Aust) Pty Ltd (S A Civil), owned by Mr Sam Ali, to remove the material from the Darlington Premises (Rich Affidavit at [17] (CB Volume 1, p 193); Affidavit of Ian Miller sworn 8 June 2018 (Miller Affidavit) at [8] (CB Volume 2, p 229)). S A Civil was the registered owner of 3 of the vehicles that were used to transport and dispose of asbestos waste from the Darlington Premises. During the relevant period, S A Civil hired an additional 10 vehicles that were used to transport and dispose of asbestos-contaminated waste from the Darlington Premises, which were owned by different individuals and entities (Affidavit of Roberto Antonio Pupo sworn 28 March 2018 (28 March 2018 Pupo Affidavit) at [20] Table 11 and Tab 6 of Exhibit RAP-1, (CB Volume 2, pp 36, 40-42; Exhibit B / CB Volume 3, pp 415-534)). 21. In total, 134 truckloads of asbestos-contaminated waste were transported and disposed of from the Darlington Premises between 3 June 2016 and 29 July 2016 (Rich Affidavit at [22]-[23] and Tab 4 of Exhibit SR-1 (CB Volume 1, pp 194-195; Exhibit B / CB Volume 3, pp 395-413)). Provision of Ticket List Report and Waste Disposal Dockets by Mr Mouawad to Peter O'Brien Constructions 22. During the period 3 June 2016 to 29 July 2016 when asbestos-contaminated waste was being removed from the Darlington Premises, Peter O'Brien Constructions employees requested Mr Mouawad to provide waste disposal dockets from the SITA Landfill as proof that the asbestos-contaminated waste had been lawfully disposed of at that site. 23. On 3 June 2016, Mr Rich sent Mr Mouawad an email which stated: "Please have all epa tickets for truck today and next week emailed to me by 12 tomorrow. So I can have copies on site" (Rich Affidavit at [41] and Tab 9 of Exhibit SR-1 (CB Volume 1, p 197; Exhibit B / CB Volume 3, p 535)). 24. On 3 June 2016, Mr Mouawad sent a text message to Mr Crestani stating that: "Lawrence, I need that $35k payment through today. I gave my word to the landfill and I can't stuff this up. We both need to use my account facility because there is in excess of $150k required over the next week and I don't have that amount to cover. Plus I'm not making any margin" (9 February 2018 Crestani Affidavit at [13] and Tab 3 of Exhibit LC-1 (CB Volume 1, pp 70-71; Exhibit B / CB Volume 3, pp 537)). 25. On 10 June 2016, Mr Mouawad sent a text message to Mr Crestani stating that: "By close of today my tip balance stands at $82,000.00 and there is at least another 350 tonne stockpiled for next week". 9 February 2018 Crestani Affidavit at [14] and Tab 3 of Exhibit LC-1 (CB Volume 13, p 71; Exhibit B / CB Volume 35, p 539)). 26. In about early-June 2016, Mr Mouawad advised Mr Crestani that he had reached his account limit with SITA of around $25,000 (9 February 2018 Crestani Affidavit at [11] and Tab 1 of Exhibit LC-1 (Statement of Lawrence Crestani dated 21 September 2017 at [14]) (CB Volume 1, p 70; Exhibit D / CB Volume 2, p 317)). Peter O'Brien Constructions had originally paid Mr Mouawad the tip fees directly, however, after Mr Mouawad advised Mr Crestani that he had reached his account limit with SITA, Peter O'Brien Constructions considered paying SITA directly for the tip fees (9 February 2018 Crestani Affidavit at [11] (CB Volume 1, p 70)). At that time, Mr Mouawad and Mr Crestani had a conversation to the following effect: Mr Crestani: "We will pay SUEZ directly." Mr Mouawad: "Ok I'll give you the account details." Mr Crestani: "Ok who do I speak to at SUEZ to confirm that." Mr Mouawad: "Margaret." (9 February 2018 Crestani Affidavit at [11] (CB Volume 1, p 70)). 27. On 15 June 2016 at 11:38am, Mr Mouawad sent a text message to Mr Crestani stating that: "Hey mate, the tip account is over my limit by $41,000.00 and needs to paid [sic] today otherwise I cannot tip tomorrow" (9 February 2018 Crestani Affidavit at [15] and Tab 3 of Exhibit LC-1 (CB Volume 1, p 71; Exhibit B / CB Volume 3, p 541)). 28. On 15 June 2016 at 2:55pm, Mr Mouawad sent an email to accounts@obrienconstructions.com stating that "This email serves to authorize Peter O'Brien Constructions to pay Sita the sum of $41,000.00. Please email remittance to my email thank you. BSB 062301, Account: 1041 3790, Ref: AE Darlington" (Affidavit of Leanne Kable affirmed 1 February 2018 (Kable Affidavit) at Annexure A (Statement of Leanne Kable dated 17 October 2017 at [12] and Annexure C) (CB Volume 2, pp 336, 343-344); Betro Affidavit at Exhibit CB-1, p 256 (Exhibit B / CB Volume 3, p 543)). 29. On 15 June 2016 at 4:55pm, Mr Mouawad sent an email to accounts@obrienconstructions.com attaching Invoice 0094 in the amount of $41,000 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill. The email stated that "Attached is our invoice for the tip fees which is to be deducted from our claim and paid on our behalf to Sita. Please email me the remittance thank you. The bank details as follows; BSB 062 301, Account 10413790" (the Bank Account) (Kable Affidavit at Annexure A (Statement of Leanne Kable dated 17 October 2017 at [11] and Annexure B) (CB Volume 2, pp 336, 341-342); Betro Affidavit at Exhibit CB-1, pp 257-258 (Exhibit B / CB Volume 3, pp 545-346)). 30. On 15 June 2016 at 5:06pm, Mr Mouawad sent an email to accounts@obrienconstructions.com attaching revised Invoice 0094 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill. Invoice 0094 was amended by Mr Mouawad specifically to state that the invoice was for: "Progress claim for portion of Tip fees for disposal of GSW to be paid to Sita on behalf of Aussie Earthmovers" (Betro Affidavit at Exhibit CB-1, pp 259-260 (Exhibit B / CB Volume 3, pp 547-348)). 31. On 20 June 2016 at 10:48am, Mr Mouawad sent an iMessage on his mobile phone to himself which stated: Hi Paul Your total charges for GSW Asbestos to date are $149,978.40. We have received only one payment of $41,000.00. You will need to transfer another $58,978.40 tomorrow which will bring it down to $50,000.00 as discussed. Regards Margaret" (Betro Affidavit at Exhibit CB-1, Tab 8 (Exhibit B / CB Volume 3, p 549)). 32. On 20 June 2016 at 12:06pm, Mr Mouawad sent a text message to Mr Crestani forwarding a message purportedly from "Margaret" at Suez. The text message stated: Message received from tip Hi Paul Your total charges for GSW Asbestos to date are $149,978.40. We have received only one payment of $41,000.00. You will need to transfer another $58,978.40 tomorrow which will bring it down to $50,000.00 as discussed. Regards Margaret" (9 February 2018 Crestani Affidavit at [16] and Tab 3 of Exhibit LC-1 (CB Volume 1, p 71; Exhibit B / CB Volume 3, p 551)). 33. On 20 June 2016 at 1:04pm, Mr Mouawad sent an email to Mr Crestani attaching Invoice 0095 in the amount of $58,978.40 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill (Betro Affidavit at Exhibit CB-1, pp 270-271 (Exhibit B / CB Volume 3, pp 553-554)). 34. On 21 June 2016 at 11:28am, Mr Mouawad sent a further email to Mr Crestani stating that: For your information, I spoke to Steve regarding the tip fees yesterday morning as we discussing [sic] the activities moving forward. I then spoke to the tip and requested the running balance. One [sic] I received it, I spoke to you and sent you a message with the tonnages and the amount required to be paid. As soon as I got back to my office I also sent through email which based on the last payment proceeded to generate an invoice as requested by Leanne. I don't know how much more prompt you require bearing in mind all of this is happening on a daily basis. I have spoken to the tip and will have duplicate dockets tomorrow afternoon" (Betro Affidavit at Exhibit CB-1, p 272 (Exhibit B / CB Volume 3, pp 555-556)). 35. On 21 June 2016 at 12:36pm, Mr Crestani sent a text message to Mr Mouawad stating: "What is sita phone number and who do we talk to" (9 February 2018 Crestani Affidavit at [17] and Tab 3 of Exhibit LC-1 (CB Volume 1, p 71; Exhibit B / CB Volume 3, p 557)). Mr Mouawad then rang and said words to the following effect: "Contact Margaret, she is my account manager, just go through the switch here is the phone number…". After this conversation, Mr Crestani immediately rang the SITA Landfill on the number provided to him by Mr Mouawad and spoke with a person identified as "Margaret" (9 February 2018 Crestani Affidavit at [17]-[18] and Tab 1 of Exhibit LC-1 (see Affidavit of Lawrence Crestani affirmed 9 August 2016 at [6]) (CB Volume 1, p 71; Exhibit C / CB Volume 2, p 301)). Mr Crestani asked whether Aussie Earthmovers had an active account and she said words to the following effect: "Yes, we draw down from that account like a credit card" (9 February 2018 Crestani Affidavit at [17]-[18] and Tab 1 of Exhibit LC-1 (see Affidavit of Lawrence Crestani affirmed 9 August 2016 at [6]) (CB Volume 1, p 71; Exhibit C / CB Volume 2, p 301)). The person identified as "Margaret" provided Mr Crestani with details for a bank account said to be specific to Aussie Earthmovers, which Mr Crestani recorded (9 February 2018 Crestani Affidavit at [4] and Tab 1 of Exhibit LC-1 (see Statement of Lawrence Crestani dated 21 September 2017 at [14]) (CB Volume 1, p 68; Exhibit D / CB Volume 2, p 317302)). Mr Crestani provided those details to Ms Kable and approved the payment of Invoice 0095 (9 February 2018 Crestani Affidavit at [4] and Tab 1 of Exhibit LC-1 (see Statement of Lawrence Crestani dated 21 September 2017 at [14]) (CB Volume 1, p 68; Exhibit D / CB Volume 2, p 317302); Kable Affidavit at Annexure A (Statement of Leanne Kable dated 17 October 2017 at [16] and Annexure G) (CB Volume 2, pp 336-337, 348-349)). Ms Kable's handwritten notes of the bank account details are recorded on a copy of Invoice 0095 retrieved from Ms Kable's original file as "062301 10413790" (Kable Affidavit at Annexure A (Statement of Leanne Kable dated 17 October 2017 at [16] and Annexure G) (CB Volume 2, pp 336-337; CB Volume 2 pp 348-349; Exhibit B / CB Volume 3, p 559)). 36. On 21 June 2016 at 1:42pm, Mr Crestani sent an email to Ms Kable stating: "sita- contact is Margret [sic] at eastern creek"(Kable Affidavit at Annexure A (Statement of Leanne Kable dated 17 October 2017 at [25] and Annexure Q) (CB Volume 2, pp 338-339; Exhibit B / CB Volume 3, p 561)). 37. At some point on 21 June 2016, Mr Mouawad attended the JRC International Pty Ltd shop in Kings Park, NSW and purchased an Epson TMT88V thermal printer with serial number MY7F701609 (the Epson Printer) and a box of 80mm x 80mm Calibor Thermal Plain Paper Rolls (the Calibor Thermal Rolls) (Affidavit of Carol Martin affirmed on 2 March 2018 (Martin Affidavit) at [1]-[6] and Annexure A (CB Volume 1, pp 138, 140)). Mr Mouawad was driven to the shop by Mr Ian Miller, who was employed by Aussie Earthmovers as a general business consultant and personal driver for Mr Mouawad (Miller Affidavit at [3] (CB Volume 2, p 227)). Mr Miller sat in the car while Mr Mouawad purchased the Epson Printer and the Calibor Thermal Rolls (Miller Affidavit at [12] (CB Volume 2, pp 230-231).) When Mr Mouawad returned to the car, Mr Miller asked why Mr Mouawad had bought the Epson Printer, to which Mr Mouawad replied: "The good thing about the thermal machine is that once you produce a receipt because they're thermal and you know then all of a sudden you go to read them and there's nothing there" (Miller Affidavit at [12] (CB Volume 2, pp 230-231)). Mr Miller then drove Mr Mouawad to his home and helped him carry the Epson Printer inside his house. Mr Mouawad later told Mr Miller that a family friend had helped Mr Mouawad connect and install the Epson Printer to his computer to get the receipts started (Miller Affidavit at [12] (CB Volume 2, pp 230-231)). 38. On 22 June 2016, Mr Mouawad sent an email to Mr Rich attaching a photo of Suez tipping docket ED310262725.0 for the disposal of one load of "Contaminated Asbestos Soil – 8032" at the SITA Landfill by vehicle registration CB87NU on 22 June 2016 (the Suez Tipping Docket) (Betro Affidavit at Exhibit CB-1, p 274 (Exhibit B / CB Volume 3, pp 565-566); Rich Affidavit at [43] and Tab 11 of Exhibit SR-1 (CB Volume 1, p 198; Exhibit B / CB Volume 3, pp 565-566)). 39. On 27 June 2016, Mr Mouawad sent Mr Crestani an email attaching Invoice No 0096 for tip fees to SITA for payment. Mr Crestani responded by email advising Mr Mouawad that: "As advised I need truck dockets / sita dockets for confirmation of loads before any invoice is processed". In a later email on that date, Mr Crestani advised Mr Mouawad that: "Again, no dockets no pay, I cant make it any more simple." Mr Crestani then sent a further email to Mr Mouawad advising that: "Please note the attached invoice will be rejected by cob today if required confirmation of loads and cost are not forwarded for appraisal". Mr Mouawad replied by email that "I will get a copy of the dockets emailed over to you later this afternoon" (Betro Affidavit at Exhibit CB-1, pp 276-283 (Exhibit B / CB Volume 3, pp 567-576)). 40. On 27 June 2016, Mr Mouawad requested Mr Rupert Simpson, Weigh Bridge Administrator at SITA, to provide him with a copy of the Suez Tipping Docket. Mr Simpson subsequently sent an email to Mr Mouawad attaching an electronic copy of the Suez Tipping Docket (file name "Docket.pdf"), together with a spreadsheet titled "WasteMan 2G Detailed Ticket List Report" (file name "CB87NU 220616.xlsx"). These documents indicate that 1 load of "Contaminated Asbestos Soil – 8032" was disposed of at the SITA Landfill by vehicle registration CB87NU on 22 June 2016 (Betro Affidavit at Exhibit CB-1, pp 285-287 (Exhibit B / CB Volume 3, p 577-579); 27 March 2018 Carbins Affidavit at Tab 7 of Exhibit PJC-1 (Exhibit B / CB Volume 3, p 577-579)). 41. On 29 June 2016, Mr Crestani sent an email to Mr Mouawad advising him that: "As advised no dockets no can pay". Mr Mouawad responded by email advising him that: "I have just come from the physiotherapist and will get the dockets to you this afternoon" (9 February 2018 Crestani Affidavit at [22] and Tab 4 of Exhibit LC-1 (CB Volume 1, p 72; Exhibit B / CB Volume 3, pp 581-584)). 42. On 30 June 2016, Mr Mouawad sent an email to Mr Crestani, copying in Mr Rich and Ms Gerry Hunter of Peter O'Brien Constructions, forwarding an email purportedly from accounts@suez.com. It attached a spreadsheet titled "WasteMan 2G Detailed Ticket List Report" (file name "Detailed Ticket List Report for AE003-Darlington.pdf") (the Ticket List Report). The Ticket List Report indicated that between 3 June 2016 and 24 June 2016, a total of 84 loads of "Contaminated Asbestos Soil – 8032" were purportedly disposed of at the SITA Landfill (9 February 2018 Crestani Affidavit at [24] and Tab 5 of Exhibit LC-1 (CB Volume 1, p 72; Exhibit B / CB Volume 3, pp 585-588)). 43. On 30 June 2016, Mr Crestani sent an email to Mr Mouawad advising him that: "Hi Paul, This is nice but I require and have asked for each individual docket, no more and no less. This is what our client has requested (each day from each driver). You advised that a copy of each would be forwarded. I await such detail" (Betro Affidavit at Exhibit CB-1, pp 314-316 (Exhibit B / CB Volume 3, p 589)). 44. On 30 June 2016, Mr Crestani sent a further email to Mr Mouawad advising him that: "I need up to 30.6.16, I can work with that up to now, but need dockets. I will arrange some pay" (Betro Affidavit at Exhibit CB-1, pp 317-319 (Exhibit B / CB Volume 3, p 593)). 45. On 30 June 2016, Mr Mouawad sent an email to Mr Crestani attaching Invoice 0097 in the amount of $69,974.69 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill (Betro Affidavit at Exhibit CB-1, pp 320-325 (Exhibit B / CB Volume 3, pp 597-602)). 46. On 4 July 2016, Mr Mouawad sent an email to Mr Crestani and Ms Leanne Kable of Peter O'Brien Constructions advising that: "This email serves to confirm that I Paul Mouawad of Aussie Earthmovers Pty Ltd hereby authorize Simon Semaan Business Solutions to act on my behalf and Aussie Earthmovers Pty Ltd in the capacity of financial controller for outstanding invoices" (Betro Affidavit at Exhibit CB-1, p 327 (Exhibit B / CB Volume 3, p 603)). 47. On 6 July 2016, Mr Simon Semaan, of SRS Business & Accounting Solutions, sent an email to Ms Kable requesting confirmation of the amount to be paid by Peter O'Brien Constructions. Later that day, Mr Crestani advised Mr Semaan that: "as advised to Paul, we have not received all waste disposal dockets to date, that is up to and inclusive 30/6/16. To assist any further early payment this is required immediately as contracted and agreed. (No Dockets no payment for any of the un-docketed loads)" (Betro Affidavit at Exhibit CB-1, pp 330-331 (Exhibit B / CB Volume 3, pp 605, 607); Affidavit of Carney Yu sworn 6 March 2018 (Yu Affidavit) at [52] and Annexure A, pp 1-2 (CB Volume 1, pp 148-152); Affidavit of Laura Ansted affirmed 12 March 2018 (Ansted Affidavit) at [14] and Annexure D (CB Volume 1, pp 164, 172-175); Affidavit of Bradley Thomas Wade sworn 7 March 2018 (Wade Affidavit) at [20] and Tab 3 of Exhibit BTW-1 (CB Volume 1, p 157; Exhibit B / CB Volume 3, p 607)). 48. On 7 July 2016, Mr Mouawad sent an SMS message to Mr Semaan which stated: "Can u go to my place please and pick up the dockets Lawrance [sic] is requesting and scan and email them" (Betro Affidavit at Exhibit CB-1, Tab 9 (Exhibit B / CB Volume 3, p 609); Yu Affidavit at [52] and Annexure A, p 3 (CB Volume, pp 148-152); Affidavit of Michelle Ann Roberts sworn 13 March 2018 at [37] and Tab 7 of Exhibit MAR-1 (CB Volume 1, p 183; Exhibit B / CB Volume 3, p 609); Affidavit of Grace Pollock at [25] and Annexure A (CB Volume 2, pp 7, 12)). 49. On 7 July 2016, Mr Semaan sent an email to Mr Crestani, copying in Mr Rich, Ms Kable and Mr Mouawad, attaching scanned copies of 29 waste disposal dockets purportedly issued by SITA and dated 17 June 2016 to 24 June 2016 (the Waste Disposal Dockets) (The scanned copies of the 29 Waste Disposal Dockets were attached to the email in 8 electronic files titled "07072016134309.pdf", "07072016134414.pdf", "07072016134454.pdf", "07072016134537.pdf", "07072016134638.pdf","07072016134717.pdf", "07072016134743.pdf", "07072016134800.pdf": 9 February 2018 Crestani Affidavit at [25] and Tab 6 of Exhibit LC-1 (CB Volume 1, p 72; Exhibit B / CB Volume 3, pp 611-620); Betro Affidavit at Exhibit CB-1, pp 330-339 (Exhibit B / CB Volume 3, p 611-620).). 50. On 13 July 2016, Mr Rich sent an email to Mr Mouawad and Mr Crestani advising that three truckloads of material were removed from the Darlington Premises on that day (Betro Affidavit at Exhibit CB-1, pp 340-341(Exhibit B / CB Volume 3, p 621)). 51. On 14 July 2016, Mr Crestani sent an email to Mr Semaan stating that no dockets had been received as yet for material removed on the previous day (Betro Affidavit at Exhibit CB-1, pp 340-341 (Exhibit B / CB Volume 3, p 623)). 52. On 14 July 2016, Mr Semaan sent an email to Mr Crestani attaching the Ticket List Report previously sent to Mr Crestani by Mr Mouawad on 30 June 2016 (indicating that between 3 June 2016 and 24 June 2016, a total of 84 loads of "Contaminated Asbestos Soil – 8032" were purportedly disposed of at the SITA Landfill) (Betro Affidavit at Exhibit CB-1, pp 340-344 (Exhibit B / CB Volume 3, pp 625-629)). 53. On 18 July 2016, Mr Crestani sent an email to Mr Mouawad and Mr Semaan stating that: As requested and advised from day 1 and in accordance with EPA requirements. Again you have failed to comply with not only site instructions but with governing requirements. Please collect and forward by COB all truck run tip dockets (each individual docket). Failure to provide will result in both fines and termination of contract. This is a serious matter and to date the information provided has not meet [sic] the requirements of the epa or the certifying authority. The summary you have provided to date and invoices has established the location and cost of tipping but as always stated the individual truck docket is ultimately required for certification of the site. I also note that the current summary is not up to date and complete" (Betro Affidavit at Exhibit CB-1, p 348 (Exhibit B / CB Volume 3, p 631)). 54. On 18 July 2016, Ms Hunter sent an email to Mr Mouawad advising that: "We require all the tip weighbridge dockets to match up with our paperwork, if you could email them through" (Betro Affidavit at Exhibit CB-1, p 349 (Exhibit B / CB Volume 3, p 633)). 55. On 18 July 2016, Mr Mouawad sent an email to Mr Semaan requesting that he send through the weighbridge dockets to Ms Hunter. Later that day, Mr Semaan sent an email to Ms Hunter attaching the Waste Disposal Dockets, as previously provided to Mr Crestani on 7 July 2016 (Betro Affidavit at Exhibit CB-1, pp 350-361 (Exhibit B / CB Volume 3, pp 635-647)). 56. On 20 July 2016, Mr Crestani sent an email to Mr Mouawad and Mr Semaan advising that: "Hi Paul, As you are aware to date we have not received all of the associated waste removal dockets, which in turn is causing a delay in our approval of works. Your urgent attention is requested." (Betro Affidavit at Exhibit CB-1, p 367 (Exhibit B / CB Volume 3, p 649) Mr Mouawad responded by email stating that: "I will be arranging the second round of dockets today and will hand deliver them to site first thing tomorrow" (Betro Affidavit at Exhibit CB-1, p 384 (Exhibit B / CB Volume 3, p 651)). Mr Crestani then responded by email to Mr Mouawad stating that: "Need them today, need them everday" [sic] (Betro Affidavit at Exhibit CB-1, p 386 (Exhibit B / CB Volume 3, p 653)). 57. On 21 July 2016, Mr Semaan sent an email to Mr Crestani and Ms Kable attaching Invoice 0102 in the amount of $55,923.67 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill (Betro Affidavit at Exhibit CB-1, pp 409-410 (Exhibit B / CB Volume 3, pp 657-658)). 58. On 22 July 2016, Mr Crestani sent an email to Mr Mouawad and Mr Semaan stating: "Could you please arrange to get a proof of payment from Sita of all waste tipped to date, Very Urgent" (Betro Affidavit at Exhibit CB-1, p 411 (Exhibit B / CB Volume 3, p 659)). 59. On 22 July 2016, Mr Semaan sent an email to Mr Crestani with details of the account terms with SITA (9 February 2018 Crestani Affidavit at [29] and Tab 9 of Exhibit LC-1(CB Volume 1, p 72; Exhibit B / CB Volume 3, p 661)). 60. On 25 July 2016, Mr Rich sent an email to Mr Mouawad requesting that the removal of asbestos from the Darlington Premises be expedited (Betro Affidavit at Exhibit CB-1, p 420 (Exhibit B / CB Volume 3, p 663)). 61. On 26 July 2016, Mr Mouawad sent an email to Mr Rich advising that: "It has come to my attention that the clients superintendent has been approaching my truck drivers requesting tip dockets. This is totally acceptable [sic] and against protocol and our safety policy not to mention an invasion of privacy. Please note that all communications to my subcontractors and personnel are to be strictly through myself or my site representative Wayne ONLY" (Betro Affidavit at Exhibit CB-1, p 421 (Exhibit B / CB Volume 3, p 665)). 62. On 27 July 2016, Mr Semaan sent an email to Mr Crestani and Ms Kable attaching Invoice 0103 in the amount of $42,571.20 for tip fees relating to the disposal of asbestos-contaminated waste at the SITA Landfill (Betro Affidavit at Exhibit CB-1, pp 424-425 (Exhibit B / CB Volume 3, pp 667-668)). 63. On 28 July 2016, Mr Crestani took one of the tipping dockets provided by Mr Mouawad to the SITA Landfill to verify that it was an actual tipping docket generated by Suez. The next day he was contacted and advised words to the effect: "The details on the docket are not correct, they are fraudulent" (9 February 2018 Crestani Affidavit at Tab 1 of Exhibit LC-1 (see Statement of Lawrence Crestani dated 21 September 2017 at [18] and 9 August 2016 Crestani Affidavit at [11]-[12]) (Exhibit D / CB Volume 2, p 318; Exhibit C / CB Volume 2, pp 301-302)). 64. On 2 August 2016, Mr Crestani sent an email to Mr Mouawad attaching a Notice of Termination in relation to the subcontract (9 February 2018 Crestani Affidavit at [32] and Tab 10 of Exhibit LC-1 (CB Volume 1, p 73; Exhibit B / CB Volume 3, pp 669-673)). 65. On 3 August 2016, Mr Crestani sent an email to Mr Simpson to verify if the email sent to Mr Crestani by Mr Mouawad on 30 June 2016 was actually sent from the accounts division of Suez. On 4 August 2016, Mr Simpson responded and advised that the email did not originate from Suez (9 February 2018 Crestani Affidavit at Tab 1 of Exhibit LC-1 (9 August 2016 Crestani Affidavit at [14]-[15] and Annexure E) (Exhibit C / CB Volume 2, p 302; Exhibit B / CB Volume 3, p 675)). The EPA's investigation of the transport and disposal of asbestos-contaminated waste from the Darlington Premises 66. The Environment Protection Authority (EPA) carried out an investigation into the transportation and disposal of asbestos-contaminated waste from the Darlington Premises and potential breaches of the POEO Act. 67. That investigation revealed that approximately 134 truckloads of asbestos-contaminated waste (being approximately 1,400 tonnes) was transported from the Darlington Premises and disposed of between 3 June 2016 and 29 July 2016. The EPA has not been provided with information to determine the location of the asbestos-contaminated waste. The EPA is aware that 1 truckload of asbestos-contaminated waste was disposed of at the SITA Landfill. However, the location of the remaining asbestos-contaminated waste remains unknown (Rich Affidavit at [22]-[23] and Tab 4 of Exhibit SR-1 (CB Volume 1, pp 194-195; Exhibit B / CB Volume 3, pp 395-413); 28 March 2018 Pupo Affidavit at [45] (CB Volume 2, p 47)). 68. On 27 October 2017, the EPA executed a search warrant at Mr Mouawad's residential address. During the execution of the search warrant, EPA officers seized a number of hard copy and electronic records, including the following: a. the Epson Printer and the Calibor Thermal Rolls (Betro Affidavit at p 4 [10s] and Exhibit CB-1, pp 87-89 (CB Volume 1, p 202; Exhibit B / CB Volume 3, pp 679-681); Ansted Affidavit at [14] and Annexure D (CB Volume 1, pp 164, 172-175); Wade Affidavit at [20] and Tab 3 of BTW-1 (CB Volume 1, pp 157; Exhibit B / CB Volume 3, pp 679-681)); b. a number of tipping dockets printed on thermal paper or on plain A4 paper. The printed tipping dockets had either "Suez" or "SITA Australia" marked on the paper (Betro Affidavit at p 4 [10m] and Exhibit CB-1, pp 63-71 (CB Volume 1, p 202; Exhibit B / CB Volume 3, pp 683-691); Ansted Affidavit (CB Volume 1, p 161); Wade Affidavit (CB Volume 1, 153)) and included a number of different versions of a tipping docket with the reference number "ED310262725" (the same reference number as the reference number on the Suez Tipping Docket) (Betro Affidavit at p 4 [10m] and Exhibit CB-1, pp 63-69 (CB Volume 1, p 202; Exhibit B / CB Volume 3, pp 683-689)); and c. an Acer Veriton S490G computer (the Acer Computer), which contained various electronic records, including electronic copies of the Ticket List Report and a Microsoft Office Word version of a "SITA Australia" tipping docket with the reference number "ED310256429" (Tipping Docket ED310256429) (Betro Affidavit at p 11 [16a(xii)], p 16 [16a(ixxxviii)] and Exhibit CB-1, pp 310-313 and 476 (CB Volume 1, pp 202, 209, 214; Exhibit B / CB Volume 3, pp 693-699); Yu Affidavit at [52] and Annexure A, pp 1-2 (CB Volume 1, pp 148-149, 150-152); Ansted Affidavit at [14] and Annexure D (CB Volume 1, pp 164, 172-175); Wade Affidavit at [20] and Tab 3 of Exhibit BTW-1 (CB Volume 1, p 157; Exhibit B / CB Volume 3, pp 679-681)), printed copies of which were found at Mr Mouawad's residential address (Betro Affidavit at p 4 [10m] and Exhibit CB-1, pp 70-71 (CB Volume 1, p 202; Exhibit B / CB Volume 3, pp 693-699)). Falsity of Waste Disposal Dockets supplied by Aussie Earthmovers 69. The Waste Disposal Dockets Mr Mouawad caused to be supplied to Peter O'Brien Constructions employees on 7 July 2016 were false, as established by the following evidence: a. Phillip Carbins, a Sydney Landfill and Organics Manager at Suez, caused a search to be undertaken of business records held by Suez to determine the authenticity of tipping dockets provided by Mr Mouawad to Peter O'Brien Constructions. This search revealed that: i. Aussie Earthmovers did not hold a customer account with Suez between 3 June 2016 and 27 July 2016 (27 March 2018 Carbins Affidavit at [31] (CB Volume 2, p 26)). ii. There was only 1 occasion during that period when a vehicle was recorded as disposing of asbestos-contaminated waste from the Darlington Premises at the SITA Landfill (vehicle registration CB87NU, disposing of asbestos-contaminated soil on 22 June 2016); and iii. There was no record of the other 133 occasions when vehicles were used to transport loads of asbestos-contaminated waste from the Darlington Premises and which were said to have been disposed of at the SITA Landfill (27 March 2018 Carbins Affidavit at [38]-[39] (CB Volume 2, pp 27-28)). b. A comparison of the Waste Disposal Dockets which Mr Mouawad caused to be supplied to Peter O'Brien Constructions employees (9 February 2018 Crestani Affidavit at [25] and Tab 6 of Exhibit LC-1 (CB Volume 1, p 72; Exhibit B / CB Volume 3, pp 611-620); Betro Affidavit at Exhibit CB-1, pp 330-339 (Exhibit B / CB Volume 3, pp 611-620)) and the tipping dockets with the same reference numbers in the records of Suez (Affidavit of Philip James Carbins affirmed 15 March 2018 at [12] and Exhibit PC-2 (CB Volume 1, p 189; Exhibit B / CB Volume 3, pp 717-745 / Exhibit G)) reveals that none of the tipping dockets supplied by Mr Mouawad matched the tipping dockets held by Suez. Although one of the Waste Disposal Dockets which Mr Mouawad caused to be supplied to Peter O'Brien Constructions (ED310262725) (CB Volume 1, p 2419; Exhibit B / CB Volume 3, p 618) had the same reference number as the Suez Tipping Docket (ED310262725.0), (Exhibit B / CB Volume 3, p 737) some of the details in the Suez Tipping Docket had been altered. These included the customer reference ("ED" in the Suez Tipping Docket and "AE003 – Darlington" in Mr Mouawad's version), the price per tonne ($180.00/t in the Suez Tipping Docket and $163.00/t in Mr Mouawad's version), the total price excluding GST ($1,065.24 in the Suez Tipping Docket and $984.63 in Mr Mouawad's version) and the removal of the payment details in Mr Mouawad's version. c. Stan Gallo, a Partner at KPMG Forensic, carried out a forensic examination of electronic records seized from the Acer Computer. As part of his forensic analysis, Mr Gallo examined Tipping Docket ED310256429. His expert opinion was as follows: i. Tipping Docket ED310256429 was created by someone using the user account "Paul" on the Acer Computer, using a copy of one of two documents of the same name which had been attached to emails sent to Mr Semaan on 30 June 2016, found within an email archive file with the user profile "Paul" on the Acer Computer (Affidavit of Stan Gallo affirmed 12 March 2018 (Gallo Affidavit) at [2] and Exhibit SG-1 at [4.2] and [6.9] (CB Volume 1, p 160; Exhibit B / CB Volume 3, pp 756, 775)); and ii. Some of the details in Tipping Docket ED310256429 differed from the details in the original two documents found within the email archive file (Gallo Affidavit at [2] and Exhibit SG-1 at [4.2] and [6.9] (CB Volume 1, p 160; Exhibit B / CB Volume 3, pp 756, 775)). d. Mr Roberto Antonio Pupo, investigator for the EPA, carried out an analysis of records received from Roads and Maritime Services (RMS) via a statutory notice issued by the EPA under s 191 of the POEO Act. The records provided by RMS indicated that on at least 23 occasions, vehicles purportedly involved in disposing of asbestos-contaminated waste at the SITA Landfill were recorded by the Bargo Safe-T-Cam as travelling on the Hume Highway, Bargo, at the same time (or less than 45 minutes from the time) the vehicles were purportedly disposing of waste at the SITA Landfill (28 March 2018 Pupo Affidavit at [20] Table 5 and Tab 6 of Exhibit RAP-1 (CB Volume 2, pp 36, 38; Exhibit B / CB Volume 3, p 835-873); Affidavit of Roberto Antonio Pupo sworn 4 May 2018 at [4]-[7] and Tab 4 of Exhibit RAP-3 (CB Volume 2, pp 50-51; Exhibit B / CB Volume 3, p 871); Affidavit of Arnold Jansen sworn 23 May 2018 (CB Volume 2, p 188)). Falsity of Ticket List Report supplied by Aussie Earthmovers 70. The Ticket List Report supplied by Mr Mouawad to Mr Crestani on 30 June 2016 was false. In addition to the matters set out in the preceding paragraph (which indicate that the information in the Ticket List Report was false as there was only 1 occasion when a vehicle was recorded as disposing of asbestos-contaminated waste at the SITA Landfill): a. Mr Carbins caused a search to be undertaken of business records held by Suez to determine if any emails had been sent to Mr Mouawad from a Suez email account during the period 1 January 2016 to 29 August 2017. The search revealed that: i. The only email found in Suez's email accounts to Mr Mouawad was the email from Mr Simpson to Mr Mouawad on 27 June 2016; and ii. There were no emails in Suez's email accounts from the email address accounts@suez.com to Mr Mouawad in this period (27 March 2018 Carbins Affidavit at [37] (CB Volume 2, p 27)). b. As part of his forensic analysis, Mr Gallo examined the email from Mr Mouawad to Mr Crestani dated 30 June 2016, which attached the Ticket List Report. Mr Gallo's expert opinion was as follows: i. The Ticket List Report was not an original attachment to an email from accounts@suez.com (Gallo Affidavit at [2] and Exhibit SG-1 at [4.1] and [6.6] (CB Volume 1, p 160; Exhibit B / CB Volume 3, pp 756, 759)); and ii. The Ticket List Report was created by someone using the user account "Paul" on the Acer Computer. According to Mr Gallo, the Ticket List Report appeared to have been created by copying contents of an original version of the document (forwarded by Mr Simpson to Mr Mouawad on 27 June 2016) and editing and adding additional rows to the document by the user account "Paul" on the Acer Computer (Gallo Affidavit at [2] and Exhibit SG-1 at [4.1] and [6.3] (CB Volume 1, p 160; Exhibit B / CB Volume 3, pp 756, 762)). Prosecutor's submissions Corporate criminal liability 1. The Prosecutor submits that the conduct which lies at the heart of these prosecutions was engaged in by Mr Mouawad. The Court must be satisfied that his actions and associated state of mind are to be attributed to the Defendant. 2. When determining whether the mental state or conduct of a person should be attributed to a corporation, it is necessary to identify the "rules of attribution" (Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270 (MT) at [19] (Spigelman CJ, Ipp JA and Hunt AJA agreeing), citing Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 506 (Lord Hoffmann); Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312 (Wollondilly Abattoirs) at [19] (Brereton JA, Harrison J and Bellew JJ agreeing)). In many cases, the conduct of persons in actual control of particular operations of the company will constitute the company for particular statutory purposes (MT at [17]; Wollondilly Abattoirs at [20]). In Tesco Supermarkets Ltd v Nattrass [1972] AC 153 (Tesco) at 170 (Lord Reid) cited in Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65 at 127 (Mason CJ, Wilson and Toohey JJ) said that a company may also be liable for an act performed by a person if the person is: …acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. 1. Where the question is one which involves the statutory liability of a corporation, the terms of the statute are critical to determining whether a person's conduct or state of mind may be attributed to the corporation (Wollondilly Abattoirs at [14]; Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 (Kojic) at [100] (Edelman J)). Section 169C(1) of the POEO Act provides that "without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind". "State of mind" is defined in s 169C(2) to include the "knowledge, intention, opinion, belief or purpose of the person" and "the person's reasons for the intention, opinion, belief or purpose". 2. Section 169C of the POEO Act does not attribute the state of mind of an officer, employee or agent of a corporation to the corporation – it is an evidentiary provision, which has the effect that evidence of the state of mind of the person (while acting in his or her capacity as such) is some evidence of the state of mind of the corporation. It facilitates proof of a corporation's state of mind, in that if the only evidence adduced is that of the state of mind of the person, that will be sufficient evidence to discharge the prosecutor's onus of proof: Wollondilly Abattoirs at [33]-[34] . 3. The Prosecutor submits that Mr Mouawad was so centrally concerned with the Defendant's operations as to be considered its "directing mind or will" (Lennard's Carrying Company Ltd v Asiatic Petroleum Company Ltd [1915] AC 705 at 713 (Viscount Haldane); HL Bolton (Engineering) Company Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159 at 172 (Denning LJ); Tesco at 171 (Lord Reid), 180 (Lord Morris), 187 (Viscount Dilhorne), 190 (Lord Pearson); Kojic at [95] (Edelman J, Allsop CJ and Besanko J agreeing); Wollondilly Abattoirs at [19]). 4. In the subcontract between the Defendant and Peter O'Brien Constructions for works at the Darlington Premises, Mr Mouawad was listed as the "Principal / Owner" of the Defendant and the "Subcontractor's representative" (SOF par 6). The "Asbestos Removal Control Plan" (ARCP), which set out the Defendant's proposal for the removal of asbestos-contaminated waste from the Darlington Premises, stated that the representative responsible for the preparation of the ARCP was Mr Mouawad and that consultation of all personnel was to be implemented by Mr Mouawad (SOF par 9(c)). The "Notification of Asbestos Removal Work" form, which Mr Mouawad submitted to WorkCover NSW, listed the Defendant as the licensed asbestos removalist and Mr Mouawad as the supervisor of the proposed works (SOF par 13). A "Safe Work Method Statement" (SWMS) for the removal of asbestos waste from the Darlington Premises, which was prepared by Mr Mouawad, stated that the "representative responsible for the preparation of the SWMS is Paul Mouawad"(SOF par 17(b)). 5. Mr Mouawad was the Defendant's representative in all its dealings with Peter O'Brien Constructions' site manager Mr Stephen Rich and its project manager Mr Lawrence Crestani in respect of the works at the Darlington Premises (SOF par 7). 6. Documents found during the execution of a search warrant at Mr Mouawad's premises also support a conclusion that Mr Mouawad was in "actual control" (MT at [17]; Wollondilly Abattoirs at [20]) of the Defendant at the time of the alleged offences. A handwritten, witnessed document dated 14 September 2015 which is signed by Mr Mouawad and Wassim Choubassi (a director of the Defendant from 25 March 2015 to 14 September 2015 and a former shareholder of the Defendant) states: I Wassim Choubassi withdraw all my shareholdings in Aussie Earthmovers Pty Ltd and sign them over to Paul Mouawad. Paul Mouawad is obligated to pay all outstanding creditor [sic] including but not limited to the Australian Taxation Office. Following items to be given to Wassim Choubassi as pay outs – 4 x Volvo Boigie, 1 x Volvo PM, 1 x Mercedes PM, 3 x Dog Trailors [sic] [Exhibit E / Betro Affidavit at Exhibit CB-1, p 83]. 1. Minutes of a meeting of shareholders of the Defendant dated 14 September 2015 which are signed by Mrs Mouawad and Mr Mouawad, state: Whereas: 1. I Amal Mouawad DOB 05/12/1950 hereby authorise Paul Mouawad DOB 12/01/1970 to represent the company and act on my behalf as director of the company. I Amal Mouawad authorise Paul to sign all documents relating to the company. Resolutions: 2. Paul Mouawad accepted the appointment as authorised representative and signatory of Aussie Earthmovers [Exhibit E / Betro Affidavit at Exhibit CB-1, p 85)] 1. An undated letter from the Defendant to Vodafone which is signed by Mr Mouawad also describes Mr Mouawad as the "new owner (sole shareholder) and general manager" of the Defendant (Exhibit E / Betro Affidavit at Exhibit CB-1, p 84). 2. Having regard to the above matters, Mr Mouawad may be regarded as the controlling mind and will of the Defendant at the time of the alleged offences. It was in that capacity that he supplied the Ticket List Report and the Waste Disposal Dockets to Peter O'Brien Constructions. As such, this aspect of his conduct and his associated state of mind may be attributed to the Defendant. It is also clear that Mr Mouawad was, at the very least, an agent of the Defendant for the purposes of s 169C of the POEO Act at that time. The Defendant supplied information about waste to another person 1. The phrase "information about waste" in s 144AA(2) of the POEO Act is defined to mean information about any of the following: "(a) the type, classification, characteristics, composition or quantity of the waste", "(b) the actual or proposed storage, transport, handling, deposit, transfer, disposal, processing, recycling, recovery, re-use or use of the waste" and/or "(c) the hazards or potential harm to the environment or human health associated with the waste or an activity referred to in paragraph (b)": s 144AA(4). "Information" includes a record containing information: s 144AA(5). "Supply information" is defined to include causing or permitting information to be supplied: s 144AA(5A). 2. The facts on which the Prosecutor relies to prove that the Defendant supplied information about waste to another person are set out in the SOF pars 22-49. 3. In respect of proceedings No 104771 of 2018, the evidence establishes beyond reasonable doubt that Mr Mouawad sent an email to employees of Peter O'Brien Constructions on 30 June 2016, forwarding an email purportedly from Suez which attached the Ticket List Report. The Ticket List Report contained information about the disposal of waste, namely, that between 3 June 2016 and 24 June 2016 a total of 84 loads of asbestos- contaminated soil were purportedly disposed of at the SITA Landfill (SOF par 42). 4. In respect of proceedings No 104773 of 2018, the evidence proves, beyond reasonable doubt, that Mr Mouawad caused Simon Semaan, of SRS Business & Accounting Solutions, to email scanned copies of the Waste Disposal Dockets, which were purportedly issued by Suez, to employees of Peter O'Brien Constructions on 7 July 2016. The Waste Disposal Dockets contained information about the disposal of waste, namely that between 17 June 2016 to 24 June 2016, 29 loads of asbestos-contaminated soil were purportedly disposed of at the SITA Landfill (SOF pars 48-49). The information was supplied in the course of dealing with waste 1. Information is taken to be supplied to a person "in the course of dealing with waste" for the purposes of s 144AA(2) of the POEO Act if it is supplied "in the course of an activity relating to the sale or disposal of waste" or "in the course of an activity relating to the storage, transport, handling, deposit, transfer, processing, recycling, recovery, re-use or use of the waste": s 144AA(3). 2. The facts on which the Prosecutor relies to prove that the Defendant supplied the information about waste in the course of dealing with waste are set out in the SOF pars 5-49. 3. Peter O'Brien Constructions had engaged the Defendant to remove asbestos- contaminated waste from the Darlington Premises and to dispose of the waste at a licenced landfill (SOF pars 8-19). In total, 134 truckloads of asbestos-contaminated waste were transported from the Darlington Premises and disposed of at an unknown location between 3 June 2016 and 29 July 2016 (SOF par 67). The evidence proves, to the criminal standard, that the Defendant supplied the Ticket List Report and the Waste Disposal Dockets to Peter O'Brien Constructions in the course of disposing of the asbestos-contaminated waste from the Darlington Premises. The information was false or misleading in a material respect 1. The facts on which the Prosecutor relies to prove that the information in the Ticket List Report and the Waste Disposal Dockets was false or misleading in a material respect are set out in the SOF pars 63-70. 2. The Ticket List Report did not originate from Suez. The evidence establishes, beyond reasonable doubt, that the information in the Ticket List Report was false or misleading in a material respect, as it purported to record that between 3 June 2016 and 24 June 2016 a total of 84 loads of asbestos-contaminated soil from the Darlington Premises were disposed of at the SITA Landfill when only one such load was disposed of at the SITA Landfill during that period. 3. Similarly the Waste Disposal Dockets did not originate from Suez. None of the Waste Disposal Dockets which Mr Mouawad caused to be supplied to Peter O'Brien Constructions employees matched the tipping dockets with the same reference numbers in the records of Suez (SOF par 69(b)). The evidence proves beyond reasonable doubt that the information in the Waste Disposal Dockets was false or misleading in a material respect as it purported to record that between 17 June 2016 and 24 June 2016, 29 loads of asbestos-contaminated soil from the Darlington Premises were disposed of at the SITA Landfill when only one such load was disposed of at the SITA Landfill during that period. The Defendant knew the information was false or misleading in a material respect 1. The facts on which the Prosecutor relies to prove that Mr Mouawad knew that the information in the Ticket List Report and the Waste Disposal Dockets was false or misleading in a material respect are set out in the SOF pars 22-70. 2. Mr Mouawad engaged in a range of conduct which had the purpose and effect of deceiving Peter O'Brien Constructions about the purported disposal of the asbestos-contaminated waste at the SITA Landfill. He sent an "iMessage" to himself on his mobile phone, which he then sent to Mr Crestani as a message purportedly from "Margaret" at Suez, regarding payment for the purported disposal of asbestos-contaminated waste from the Darlington Premises at the SITA Landfill (SOF pars 31-32). Mr Mouawad provided Mr Crestani with contact details for "Margaret", the Defendant's alleged account manager at Suez, who provided Mr Crestani with details for a Suez bank account said to be specific to the Defendant but which were, in fact, details for a bank account held by the Defendant (SOF pars 35 and 71(b)). Suez did not have any "Margaret" working in its accounts area from May to July 2016 (SOF par 71(a)). 3. Mr Mouawad purchased a thermal printer and thermal paper rolls on 21 June 2016, nine days before he supplied the Ticket List Report and just over three weeks before he caused the Waste Disposal Dockets to be supplied to Peter O'Brien Constructions (SOF par 37). A number of tipping dockets printed on thermal paper or plain A4 paper were found at Mr Mouawad's premises, including a number of different versions of a tipping docket with the reference number "ED310262725" (the same reference number as that on the tipping docket which Suez provided to Mr Mouawad for the single load of asbestos- contaminated waste from the Darlington Premises that was disposed of at the SITA Landfill) (SOF par 68(b)). A Microsoft Office Word version of a tipping docket was also found on Mr Mouawad's computer, which Mr Stan Gallo, a Partner at KPMG Forensic, concluded was created by someone using the user account "Paul" on Mr Mouawad's computer, using a copy of one of two documents of the same name which were found within an email archive file with the user profile "Paul" on that computer (SOF pars 68(c) and 69(c)). 4. In addition, Mr Gallo concluded that the Ticket List Report was created by someone using the user account "Paul" on Mr Mouawad's computer by copying contents of an original version of the document forwarded by Robert Simpson, a weigh bridge administrator at Suez, to Mr Mouawad on 27 June 2016 and editing and adding additional rows (SOF pars 40 and 70(b)). 5. It may be inferred from this evidence that Mr Mouawad created the Waste Disposal Dockets and the Ticket List Report. If the Court is not satisfied that Mr Mouawad created those documents, it may nevertheless be comfortably satisfied to the criminal standard that Mr Mouawad knew the information they contained was false or misleading in a material respect. 6. By virtue of s 169C(1) of the POEO Act, Mr Mouawad's knowledge that the information was false or misleading in a material respect may be treated as evidence that the Defendant had that knowledge. Finding on liability 1. The Prosecutor has proved the four elements of the two offences under s 144AA(2) of the POEO Act as identified at [31] above beyond reasonable doubt. 2. Based on the evidence relied on by the Prosecutor outlined in the SOF pars 61-70 and evidence referred to in [32]-[34] above, particularly those documents referred to in [43]-[45] and for the reasons articulated in [36]-[46] above, including the authorities identified in [37]-[38] and [40] and the effect of s 169 of the POEO Act identified in [39] and [46], Mr Mouawad's actions and state of mind can be attributed to the Defendant as the controlling mind and will of the Defendant in relation to both charges. 3. The Prosecutor submitted that in relation to s 211(2) of the POEO Act, which makes it an offence to furnish information in purported compliance with a requirement made under Ch 7 of that Act "knowing that it is false or misleading in a material respect", it has been held that the Prosecutor "does not have to prove that the Defendant knew [it] was making statements on material matters. The question of whether information is material is one for the court": Environment Protection Authority v Hargraves [2002] NSWLEC 113 at [100]-[104] (Lloyd J), citing R v Cassell (1998) 45 NSWLR 325 at 334 (Smart J, Ireland and Dunford JJ agreeing) and that this analysis applies equally to s 144AA(2) of the POEO Act. Also as the Prosecutor submitted, such an approach need not be considered in this case as it may be readily inferred that Mr Mouawad knew that the information in the Waste Disposal Dockets and the Ticket List Report was false or misleading on material matters. 4. In proceedings No 104771 of 2018 (Ticket List Report) the four elements of the offence identified in [31] above have been established beyond reasonable doubt because: 1. The Defendant "supplied information about waste" as defined in s 144AA(4)(a), (b), and (c), "supply information" being defined in subs (5A) to include "cause or permit information to be supplied". The facts in the SOF pars 22-49 based on the evidence identified therein establish this element as submitted by the Prosecutor in [48]-[49] above. 2. The information was supplied "in the course of dealing with waste", as defined in subs (3). The facts in the SOF pars 5-49 based on the evidence identified therein establish this element as submitted by the Prosecutor in [52]-[53] above. 3. The information supplied was false or misleading in a material respect. The facts in the SOF pars 63-70 based on the evidence identified therein establish this element as submitted by the Prosecutor in [54]-[55] above. 4. The Defendant knew the information was false or misleading in a material respect. The facts in the SOF pars 22-70 based on the evidence identified therein establish this element as submitted by the Prosecutor in [57]-[62] above. 1. In proceedings No 104773 of 2018 (Waste Disposal Dockets) the four elements of the offence identified in [31] above are established beyond reasonable doubt because: 1. The Defendant "supplied information about waste" as defined in s 144AA(4)(a), (b), and (c), "supply information" being defined in subs (5A) to include "cause or permit information to be supplied". The facts in the SOF pars 48-49 based on the evidence identified therein establish this element as submitted by the Prosecutor in [48], [50] above. 2. The information was supplied "in the course of dealing with waste" as defined in subs (3). The facts in the SOF pars 5-49 based on the evidence identified therein establish this element of the offence as submitted by the Prosecutor in [52]-[53] above. 3. The information supplied was false or misleading in a material respect. The facts in the SOF pars 63-70 based on the evidence identified therein establish this element of the offence as submitted by the Prosecutor in [54], [56] above. 4. The Defendant knew the information was false or misleading in a material respect. The facts in the SOF pars 22-70 based on the evidence identified therein establish this element of the offence as submitted by the Prosecutor in [57]-[62] above. 1. Arrangements for the sentencing of the Defendant for the two offences will now need to be made. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2020