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Saturday, 25 October 2008

Diamond Diary Part 3: Getting to grips with the costs regime in the NSW Land & Environment Court
Mood:

not sure
Topic: legal

In Part 1 posted by SAM micro news website last Wednesday environmental activist and litigation adventurer Neville Diamond talks about his community and public interest credentials 1985 to 2008. His focus has been the various developments adjacent to now World Heritage listed Wollemi and Yengo National Parks about 50 km west of Sydney such as Tinda Creek shown in images above and below, and also the sandmining precinct at Maroota about 45 north west of Sydney. In this phase had some famous victories via the Land & Environment Court.

In Part 2 Diamond describes hitting the wall regarding costs orders doing litigation financed by covert principal Ken Dixon of Dixon Sands (Penrith) Pty Ltd from 1997 to 2005.

In Part 3 here Diamond describes via his affidavit filed in the Land & Environment Court on 14 October 2008, reproduced here by permission, getting to grips with the legal costs/security for costs regime of that jurisdiction, alas all too late given his formal bankruptcy from around 2000.

A professional approach to costs in this case [Diamond v Birdon Contracting Pty Ltd & Anor 40733 of 2008]

30. I can assure the court through my agent and supporters that I understand and accept the legal framework regarding costs in LEC litigation and that I am not a frivolous or vexatious litigant in these proceedings. In this respect I refer to previous successful cases I have been a party to above. I understand for instance as advised by the Environmental Defenders Office principal solicitor the following rules apply:

The costs issue arises in the Land and Environment Court Rules 2007 in rule 4.2. It relates to class 4 appeals.

4.2 Proceedings brought in the public interest

(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.

(2) The Court may decide not to make an order requiring an applicant in any proceedings to give security for the respondent’s costs if it is satisfied that the proceedings have been brought in the public interest.

…..

I am also aware of Rule 3.7 which strictly speaking applies to class 1, 2 and 3 matters however the criteria appear to be indicative:

3.7 Costs in certain proceedings

Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:

(a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:

(i) in one way was, or was potentially, determinative of the proceedings, and

(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,

(b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents:

(i) that are required by law to be provided in relation to any application the subject of the proceedings, or

(ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application,

(d) that a party has acted unreasonably in the conduct of the proceedings,

(e) that a party has commenced or defended the proceedings for an improper purpose,

(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:

(i) the claim or defence (as appropriate) did not have reasonable prospects of success, or

(ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

With the support of my agent I can reassure the court that I will respect these rules and stay within the boundaries of these rules.

31. Regarding security for costs in this case I submit under a proper consideration of the legal tests in Cable’s Case and Melville Case I should not be obliged to provide a security for costs. My submissions on this are outlined to some degree below under a separate heading.

32. I have a reference in my case from Peter Waite OAM. I am in current discussions with Peter Waite OAM, a successful businessman who campaigns on integrity in Local Govt in Hornsby shire, and who has attended meetings with me and the Mayor of HCC and site inspection of the site. Peter has authorised me to reveal these negotations publicly that if I am forced to he will consider underwriting any security for costs order against me in these proceedings to better protect the WHA. However before he decides to do that there is still the legal question of whether I am barred based on Birdon arguing in their notice of motion:

(a) my bankruptcy – I say the evidence shows this is not legally relevant as found in previous public interest litigation

(b) consent conditions of 2005 are binding or not given the systemic and extreme breaches of those conditions by the Birdon in effect and regrettably making them a dead letter;

I have to weigh up in these proceedings whether to seek to join with another environmentalist such as my agent Tom McLoughlin to re-apply to the court whereby Peter Waite can underwrite my colleague’s security for costs as a separate party against the sandminer who is not so potentially handicapped by the 2005 consent orders depending on how the court decides on their ongoing legal efficacy/viability given the evidence of systemic breaches by Birdon.

However there was not sufficient time to organise that approach in these proceedings as a matter of practicality: When HCC issued their planner’s report for council meeting on 29 July 2008 proposing refusal of the s.96 modification application, I was advised in the week approaching the full council meeting by Liberal Party councillor Robbie Porter words to the effect of: “We are going to vote for it anyway, whatever the council officers recommend.” Given the history of this matter I had to him at their word and felt a public duty to intervene to prevent an approval.

My agent faxed a court stamped application in class 4 that very afternoon of 29 July 2008 to the HCC prepared at short notice, while I was already in court over the Kettle/Coca Cola case public interest case. Since then I have had time to organise an Amended Application with further orders sought, filed and served with this Affidavit of evidence in reply.

Picture (above): Tinda Creek on site of Birdon Contracting Pty Ltd interrupted by giant tailings pond in foreground (and scroll to far right off screen), with dubious site works in background on new areas subject to 's.96 modification application' for another 1.3 million tonnes of sand. An expert Chris Jewell says the evaporation of the lake in the final landform will cut off 53% of the creek running into wetlands in the Wollemi World Heritage Area.

Previous posts in this series are here:

Thursday, 23 October 2008 Diamond Diary Part 2: How I went bankrupt 'doing litigation for Dixon Sands' Mood:

accident prone Topic: legal