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1997-2008 - litigation history of Neville Diamond 'for Dixon Sands (Penrith) Pty Ltd'

Photo of dog rescueTrig Hill Area late 1998
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Community inspection discovers pet in distress in slurry pit, Neville Diamond digging with hands

Appendix M
 

Neville Diamond (ND)alleges as early as 1996-1999 he was authorised/instructed verbally by Ken Dixon, Managing Director of Dixon Sands, that ‘if it was necessary’ for NDto commence legal action against Dixon Sands to expose BHSC officers alleged collusion with PF Formation. Diamond says Ken Dixon said this should happen ‘regardless of what his son David Dixon said’.

 

This tactic revolved around getting officers of BHSC monitoring the extractive industry in Maroota into the witness box. From there they would be questioned on the S.94 developer contributions system. Dixon Sands (Penrith) Pty Ltd believed PF Formations had fraudulently underpaid $2M in s.94 fees to BHSC which goes to the RTA for road work. There was great dissatisfaction with the lack of credible auditing within BHSC of the s.94 contributions by the sandmining industry and BHSC were thought to be strangely secretive.

 

ND alleges the tactic of having a suit by Diamond was to get BHSC officers Lee and Zadeian into the witness box and explain in fine detail the method of collection and accounting of s.94 contributions thought to be highly irregular and dishonest, as well as lack of regulatory enforcement of sandmining. According to Diamond, Ken Dixon was confident their company had paid all s.94 contributions due and they wanted to compare and contrast how the council officers dealt with PF Formation, even at the expense of being sued themselves by ND to get at the officers and the truth.

 

At first ND sued BHSC in 1997 under cover of Tinda Creek Spiritual Environment Pty Ltd to appeal consent of PF Formation s.102 extension of Lot 198 (consent no.90/03). He lost with court costs of $104K to BHSC and $25K to PF Formation. Ken Dixon paid for all legal disbursements and $500 per week to Diamond via TCSE Pty Ltd for most of 1997 and 1998. In June 1998 Diamond sued BHSC and PF Formation with legal support of Bruce Woolf Solicitor arranged by Tom McLoughlin of Friends of the Earth Sydney Inc (strictly pro bono) given the business competitive motives of other vested interests, and Diamond advised then as now that all disbursements were paid in cash by Ken Dixon amounting to about $50K:

 

Diamond v BHSC and John Graham (PF Formation/Etra Pty Ltd No. 10061/1998)

 

The 1998 case was remarkable in that unlike the 1997 case, both BHSC and Graham/PF were forced to negotiate legal settlement terms of DA consent, and there was no prospect of any order for costs against Diamond because it was a partial victory. This was despite BHSC retaining Brian Preston, later chief judge of the Land & Environment Court and who literally wrote the 1989 book "Environmental Litigation". Indeed Preston stated to Woolf and Tom McLoughlin at the time based on the expert evidence submitted in the 1998 case that "we had some good stuff" that presumably the council and PF were forced to address.

 

In fact there was even more "good stuff" in the form of expert Sullivan Report and ERM McCotter Report that did not get sufficient attention in the case because they were paid for late and missed the court deadline. These in particular related to excessive water usage. Refer to the Appendices to our DA 2008 submission here:

 

C3. June 1998 - Extract: ERM McCotter expert report PF Formation sandmining Maroota Lot 167, 198

 

C4. 14 June 1998 Sullivan Environmental Consulting expert evidence on water consumption by FP Formation

 

and also community submissions in 1998 with significant expert component

 

C1. 27 Oct 1988 - Max Taylor/Toomakoo Pty Ltd objection to sand mining Lot 167 Trig Hill area, Maroota

 

C2. David Taylor expert report “Maroota Trig Station Development Application, Diamond V Baulkham Hill Shire Council and Other, June 1998.

 

 

 

Diamond understood his legal costs were underwritten by Ken Dixon for DS as financial supporter of these two litigations 1997 and 98, and as previously evidenced from ND in Statement of Evidence, Volume 11 filed in the Land & Environment Court on 27 January 2004 (Diamond v Minister Dept of Planning).

 

Tom McLoughlin (then a paralegal in 1998, now a solicitor) can verify the payment of solicitor Woolf and experts in the 1998 litigation from Dixon Sands via Diamond because there was no other source of funds and the solicitor and experts were paid, including Sullivan and ERM McCotter reports above. And ND told him of the funding source at the time. McLoughlin for then Friends of the Earth environment group said he didn’t mind where the funding came from as long as there was no financial payment to FoE or its representatives by a commercial competitor and they would help in the public interest to bring discipline on PF Formation and BHSC.

 

Diamond claims that Ken Dixon still supported such a litigation strategy against especially BHSC and officers Peter Lee and Peter Zadeian, and that Ken Dixon did so on behalf of his company in 2002-3. There is nothing in writing to evidence this.

 

Diamond went bankrupt by 2000 from the 1997 first case and feels DS are legally responsible for the debt as actual litigation supporters of that case, who broke their covert agreement to underwrite his financial exposure.

 

Prior to the bankruptcy Diamond was instructed by son of the patriarch Ken,  David Dixon to hold off attacks on BHSC and PZ and to not give any evidence to the bankruptcy court of the DS financial support for the first and second cases because this would expose DS to further problems with BHSC under their newly acquired consent of date 2000.

 

ND says he complied with the request, and was made bankrupt for lack of contrary evidence as to who he was working for. David Dixon then warned ND off any mention of Dixon Sands and the first two litigation cases, which he did until 2003.  Diamond alleges there was a promises to pay him off for his bankruptucy trouble with a block of land namely 100 acres at Colo Heights. Diamond says David Dixon agreed around 2001. But this has never happened.

 

Diamond complaint letter to David Dixon, Ken's son
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Diamond alleges Ken Dixon late 2001 agreed ND sue BHSC again for Dixon Sands

Diamond alleges the block of land promise was firstly to smooth over the bankruptcy in thee service of DS and secondly as consolation for DS not going ahead with a $15M suit of BHSC with 1/3 cut for Neville Diamond. The basis of the $15M figure was alleged lost revenues as a consequence of preferential treatment to PF Formation. However a peace deal around 2000 brokered between David & Mark Dixon and John Graham, and other Graham brother made this suit redundant (‘the meeting at the Kunzea’).

 

ND alleges that even so patriarch Ken Dixon still wanted to expose and punish the officers of BHSC “regardless of what David says”. The father and son were often in disagreement about the plans of the company. ND alleges Ken Dixon who has known for over 25 years and as a friend of the family and his own father, never withdrew his instructions to ND to attack the council officers, based on previous cash payments for such cases in 1997 and 98 as well.

 

Diamond alleges he went ahead with this litigation plan in 2003 with Ken Dixon’s blessing though probably not the son David Dixon, for Diamond to appeal their own DA consent granted by the Dept of Planning, proceedings 10206/03 Diamond v Minister for Dept of Planning in the Land and Environment Court.

 

Indeed in that case Justice Talbot stopped the questioning of BHSC officer Peter Lee so he could get his own legal advice to avoid self incrimination. On return Lee announced that Diamond was a bankrupt. Justice Talbot challenged counsel for Dixon Sands if they already knew this after 8 days in the court. Barrister Phil Clay for DS said he did know of ND’s bankrupt status. Very significant because it meant DS counsel deliberately never sought security for costs contrary to all normal practices and experience in that jurisdiction. A private litigant is always asked for security for costs.

 

Why the DOP counsel didn’t also ask for a security of costs order at the outset is a mystery also.

 

From that point on in the case Justice Talbot refused to let the BHSC officers be questioned without any direct evidence of fraud to base questions alleging the same. Diamond could not provide such evidence to satisfy the court.

 

Diamond lost the case and has been advised of legal costs of the DOP of approximately $160K (pers. comm. Susan Budd, legal officer for DOP in 2004). Legal costs owed to Dixon Sands Pty Ltd was a bill (untaxed) for $200,000. A total legal costs burden of up to $360,000.

 

Neither DOP or DS have sought to progress payment of such large legal costs with the Trustee in Bankruptcy to date and ND has not sought to hide from them. ND has sought a bill from the DOP which they refuse to submit to date. David Dixon in the absence of Ken Dixon who is now an invalid has submitted an untaxed bill and not pursured it further.

 

Diamond alleges that his bankruptcy in 2000 is only one reason for this soft approach to his debt. He alleges that to press the legal costs debt would bring out the whole litigation scheme cooked up with Ken Dixon and other supporters of Dixon Sands to get at the BHSC officers in the witness box and to progress ‘the sand wars’. This plan by Diamond/Dixon Sands is itself a major embarrassment as is the reality of highly irregular sandmining practices at Maroota tolerated by BHSC not least as regards PF Formation.

 

Diamond believes rather than seek to stir up a hornets nest over this litigation legacy Yoland Stone as senior bureaucrat with DOP responsible for operation of SREP9 provision of construction sand to the Sydney market, has preferred to start afresh by diplomatic appeasement of all sand miners to neutralise ‘the sand wars’ between the two main companies which only reduces sand supply to the market: Dixon Sands have received two consents in 2003-4 and PF Formation have been allowed to flaut their rehabilitation obligations and water breaches.

 

Even so it is a matter of record that David Mead former General Manager of Baulkham Hills Shire Council was effectively forced to resign for some secretive reason by the Minister for Local Government in 2004, and one can speculate whether sand mining had any role to play in this outcome:

 

Council suspends manager who turned its fortunes around

By Tim Dick, [Sydney Morning Herald]
December 23, 2004

A council crucial to housing Sydney's future population and business growth is being investigated by the State Government after it suspended its general manager and then refused to explain why.

Inspectors from the Department of Local Government are investigating Baulkham Hills Shire Council after it suspended David Mead on full pay, the day he was due back from extended stress leave. The move came after the Minister for Local Government, Tony Kelly, warned that any dismissal could lead to a "substantial" payout.

He said the department could ask individual councillors to personally meet any such payouts, and warned of a possible public inquiry that could eventually lead to all 12 councillors being sacked.

Since elections in April, the council has asked to review Mr Mead's employment contract and medical records, and prohibited him from speaking to the media.

The suspension comes as the area prepares for some of an expected 60,000 new homes in north-western Sydney.

But the probable departure of its general manager has cast doubt on its ability to help implement the State Government's plans, 14 years after it was turned around from the brink of bankruptcy, under Mr Mead's stewardship.

Baulkham Hills will not say, even generally, what Mr Mead is alleged to have done, referring to vague allegations of breaches of his employment contract. The details, it says, are confidential.

But the former mayor, Geoff Brooke-Cowden, who has spoken to Mr Mead since the suspension, said: "He hasn't been confronted with any allegation at any stage. You can imagine the lawsuit that's going to follow from this.

"David would have to be one of the best chief executive officers I've ever come across," he said.

 

 

It seems incredulous the lawyers for DOP, if not Dixon Sands, in the 2003 case by ND didn’t seek a security for costs order. Naturally if lawyers for either party had sought a security for costs order they would have lost their very expensive fees for  2 weeks of litigation, including 20 volumes of evidence. Or Ken Dixon may have agreed to underwrite the security for costs order as per the financial support for litigation attacking the staff of the BHSC as in 1997 and 98.

Sydney Morning Herald article around 1996
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Neville Diamond is shown with Environmental Defenders Office t-shirt

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