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sydney alternative media - non-profit community independent trustworthy
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,

(c)  that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,

(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;

(c)   previous record of litigation.

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
Wednesday, 22 October 2008 Diamond Diary Part 1: Amazing career of environmental litigation Mood:  on fire Topic: legal
Tuesday, 21 October 2008 World heritage vandal gets technical win in Land & Environment Court ...for now Mood:  accident prone Topic: legal

16 October 2008 Hawkesbury City Council public duty to protect their World Heritage park in court Friday 9.30am Mood:  blue Topic: legal

Posted by editor at 8:57 AM NZT
Updated: Saturday, 25 October 2008 12:34 PM NZT
Friday, 24 October 2008
Big Bill Heffernan talks his book on 4 Corners .... aka Australian Story?
Mood:  d'oh
Topic: aust govt

Sarah Ferguson, esteemed journalist and partner as it happens of ABC rottweiler Tony Jones, ran the story. But was she also sold a pup (!) by Howard's rural mate last Monday night on 4 Corners?

There was Big Bill, Senator of the Liberal Party in the Australian Parliament, with a tendency to crash other people's media conferences like an all round smart arse.

The cartoon above says it all from 2007 in the big press and ought to have been a warning to Ferguson too: Specifically Big Bill was whining about, in words to this effect: "How could anyone buy Toorale for $23M sight unseen?"

Let's just test that proposition for a moment: Controversial part buyer of the long, long established farming property Tooralie - in fact national party royal heritage back to the 19C - is the NSW Govt. The NSW Govt is the traditional land manager at provincial govt level.

Is Heffernan saying no one from the NSW ALP Govt - in partnership with the Federal ALP Govt - has inspected or visited the property over the years? Not very credible that.  You can be sure the NSW NPWS and NGO groups like the big National Parks Association and Western Conservation Alliance have a pretty decent idea of what is at Toorale. As would Professor Richard Kingsford who was advising the Federal Govt.

And then consider the Federal Govt's recent past - Drought exceptional circumstances applications back to 2002 anyone? We wonder. Notice this report of hard times August 2008. And notice this retirement after 50 years in January 2008 by the MD of Clyde Agriculture owner of Tooralie/Toorale itself owned by the John Swire and Sons.

Secondly, it's a demolition sale. What's to inspect when you're taking the rural business apart to return it to nature? The value of the diversion banks that are going to be bulldozed? It's like an abandoned factory - which we took a lease on once in our potted history.

(This writer recalls the experience of a factory lease term along the lines of 'leasee takes in an abandoned state'. In other words the fixtures and fittings - or in this case the factory worker theft on decommissioning of most of the copper plumbing - was all part of the "abanonded state". We got it at a tiny $30sqm p.a. for 1000 sqm, so no complaints regardless. A bit of rural polypipe and we were back in the sub-lease business the next 4 years.)



And then there is the real trump of Heffernan's blather - the miracle that is Google Earth. Who needs to drive a thousand kilometres from Sydney, or fly, when you can look at satellite pictures. And not just Google Earth which can be 5 years out of date. The NSW Land's Dept have much more up to date satellite images and even greater resolutions when they want to.

So what is really going on here? The recent Port Macquarie by-election debacle for the National Party is the biggest clue. Alby Shultz MP (Liberal, rural) comes from down Tumut way not so far from Big Bill Heffernan's Junee digs. Shultz visited and endorsed the 'Liberal' independent who won in Port (aka Porpoise Spit), over the Coalition endorsed National candidate. Good decision voters!

Liberal senator Bill Heffernan welcomes Barnaby Joyce yesterday.

What it shows is the RARA (rural and regional) turf war Libs v Nats with gun play talk by the latter, metaphorically of course. Heffernan is trawling that fertile vein of voter sentiment not just on the coast but in the heartland at Tooralie: All those Big Agri jobs converted to tourism and National Parks, science, river health in an age of dangerous climate change leaving anxious Nat voters 'not happy' stuck on the losing side of a federal ALP govt, and a federal election in Nov 2007.

And no wonder the UK based company Clyde was a "willing seller" of Tooralie. Notwithstanding their Sydney office, their home base in Britian is the the most active and sensitive place in the world on global warming as London 'sinks'. There is even a movie out at the local DVD shop called The Flood (2007) because people are scared about storm surges. And well they might.

All in all Minister Wong was right to buy that property, not just the water rights to start the long haul of reforming the arrogance and dissembling of Big Agri with all those over allocations, and politician Heffernan is talking his book as the shudder goes through the irrigation business model from climate shift. By taking the land as well there can be no backsliding with water allocations to the farm in the future under duress from the good folk of Bourke in a National/Liberal Party rearguard action. That's what Federal Govt is for.

When you take into account all this real politik context above you start to see why our SAM headline alludes to Australian Story at 8pm on Monday - famous for subjective free rein - merging into flagship 4 Corners at 8.35 pm, which is designed to be hard edged and polished journalism. It's a big task no doubt and the show had an awful lot to recommend it still, like that room full of big irrigator business men leveraged to the hilt and about to go bust in the Global Financial and Climate Change crisis. And coverage of sainted river ecologist Prof Richard Kingsord.




Posted by editor at 5:49 AM NZT
Updated: Friday, 24 October 2008 11:23 AM NZT
Thursday, 23 October 2008
Diamond Diary Part 2: How I went bankrupt 'doing litigation for Dixon Sands'
Mood:  accident prone
Topic: legal



In Part 1 of the serial published yesterday Neville Diamond lists his many successful legal cases. In part 2 Diamond ran into turbulence after he had some great wins protecting his local Tinda Creek valley sandwiched between the now World Heritage Wollemi and Yengo national parks.

In particular he says in this second section of his sworn affidavit he has consented to being published here he organised a case for Dixon Sands (Penrith) Pty Ltd, or rather patriarch of that family company Ken Dixon who was a former employer and family friend for most of the 1980ies.

Ken Dixon is now an invalid apparently and can't speak up for himself anymore, and his son David Dixon rejects the Diamond sworn evidence. It's for readers to decide ....

My public interest environmental litigation credentials – unsuccessful cases

17. I know that I have mixed reputation before the LEC due to my lack of formal education and some serious losses in 3 previous cases 1 of which resulted in my bankruptcy. In 2 of the 3 cases I lost I was unrepresented.  I address my bankruptcy below. I say this should be balanced up with my many successes in the public interest as outlined above especially with professional support as I do have in this case from my agent Tom McLoughlin, indirectly via principal solicitor Kirsty Ruddock at the Environmental Defenders Office and community sector groups.


18. After I lost my property at Tinda Creek to Birdon I decided I needed to get inside the sand mining industry to better learn how to beat these racketeers tending to corruption of local government planning and enforcement processes. It was then that I offered to work for the Dixon family company mining sand at Maroota as they are family friends of ours. My father and Ken Dixon were good friends and business colleagues for 8 years when my father and I worked as contractors for Marefine Pty Ltd oil recycling business owned by Ken Dixon.




19. The case which resulted in my bankruptcy was still an efficiently run case with Bruce Woolf as solicitor and Greg Newport as barrister. This was Diamond v PF Formations Pty Ltd & Baulkham Hills Shire Council 40066 of 1997. That case was funded from start to finish by Ken Dixon of Dixon Sands (Penrith) Pty Ltd as patriarch of the family company and rival sandminer to the tune of about $20,000 paid in cash in $4,000 amounts paid covertly to me in the gents toilets in the LEC which was then paid to Woolf or Newport so they would go on that day in a 4 day hearing. We lost, not on the substantive issues, but over a contested security for costs order of $90,000 to proceed.  We had costs ordered against us in this interlocutory matter, it was appealed with barrister Tim Robertson to the NSW Court of Appeal to get to the substantive issues but we lost again on the security for costs threshold issue and I got a costs order against of $104,000. That hearing in the CA of NSW was funded from start to finish by Ken Dixon ($5,000) and David Dixon ($4000) out of their personal accounts.

This financing was based on a deal I made verbally with them at the Richmond Leagues Club in early 1996 - following my easy success in the Mushroom Composters legal project at Wollemi in 1995 - in a meeting with Ken Dixon, xxxxxxx, xxxxxxxx, and xxxxxxx, who were all in the sandmining business at Maroota as rival of PF Formations. The deal was pursuant to s.123 (3) of the EP&A Act that they

(a) would pay me $500 a week plus expenses through the Tinda Creek Spiritual & Environment Centre fighting fund to run litigation against PF Formation Pty Ltd

(b) fund litigation by me on their behalf to “level the playing the field with Baulkham Hills Shire Council.

Later on xxxxxxx dropped out but the other three continued for all of 1997 to 2000.


20. The Birdon also relies on the adverse comments about me by Talbot J in 2004 and the costs order against me in favour of Dixon Sands and the Dept of Planning. However there are extenuating circumstances there:

(a)   I was given direct authorisation by Ken Dixon patriach Dixon Sands (Penrith) Pty Ltd to initiate proceedings against his own company as a strategy to force certain allegedly corrupt council officers into the witness box. Being legally untrained I didn’t realise I needed more than circumstantial evidence of corruption to pursue my line of questioning. However one officer xxxxx xxxxx in particular refused to answer a subpoena and fled to WA to avoid having to answer questions under oath. I understand and verily believe he was later forced to resign from BHSC for improper use of council property to secretly run a private consultancy using BHSC resources. My unusual and covert relationship agency relationship with Ken Dixon as my undisclosed principal is published as per the article at annexure 23, which has been forwarded to the DIPNR in lengthy submissions by my agent on sandmining DAs in Maroota area in early 2008.

(b)   The significance of Ken Dixon as undisclosed principal is that he in fact and on behalf of his family company are the ultimate debtor in the costs for cases run for him in my own name under section 123 (3) of the EP&A Act 1979. DIPNR actually knows this and it is at least partly why they refuse to enforce their costs against me knowing it leads to Dixons’ which then stirs up the ‘sand wars’ again at Maroota between rival companies Dixon Sands and PF Formations Pty Ltd:  The allegation by Dixon’s being that the BHSC were biased to PF. It is true xxxxxxx  who now runs the company rejects this interpretation of events but it remains my sworn evidence and Ken Dixon won’t deny it on oath because it is the truth as God is my witness. Secondly Dixon Sands have never sought their costs against me given the role of patriarch Ken Dixon;


(c)   Also regrettably xxxxxxx has taken over the running of the company since his father Ken had a stroke and is now an invalid and unable to speak up for me anymore;

(d)   The reason Dixon Sands wanted my help from 1996 was because of my Tinda Creek experience and my contacts in the regulatory regime at local and state government level. In fact though unsuccessful in 1997 litigation undertaken for Ken Dixon, I was successful in 1998 against PF Formation again on instructions from Ken Dixon who paid all the bills. I was unsuccessful in 2003 but again on instructions of Ken Dixon.

(e)   In this light I have been a willing dupe of Dixon Sands to run litigation for them but they are responsible for the BHSC costs orders against me and they know it. His son xxxxxx has [allegedly] taken a ruthless attitude to cut me off, not least because [allegedly] he knows Baulkham Hills Shire Council and the Dept of Planning will seek their legal costs from his family company and also possibly seek revenge with their regulatory powers;

(f)     Some corroboration of my version of the situation is contained in correspondence of 21 June 2001 to xxxxx, Ken & xxxxxx and letter from xxxxxxxxx to me on a letter dated “26.5.2001”. There is clearly an error in the dating of xxxxxxx xxxxx letter. He refers to “I confirm receipt of your letter dated 6 June 2001 faxed ” that is well after the date of his response. The letters are at annexure 24.

(g)   Finally, regrettably I was suffering post traumatic stress disorder during the middle of the 2004 case before Talbot J which required a 2 week adjournment relating to the memories of the violence and menaces suffered during this saga with the Tinda Ck sandminers as explained further below in this affidavit.


- bankruptcy

21. The Birdon takes completely out of context my bankruptcy at the hands of Baulkham Hills Shire Council in my case against them and PF Formation, conducted efficiently on my behalf by Bruce Woolf and barrister Greg Newport, and then efficiently to the NSW Court of Appeal with conduct by barrister Tim Robertson. I did lose and have a costs order against me but it was all at the direction of patriarch Ken Dixon of Dixon Sands (Penrith) Pty Ltd working for him under s.123 (3) who is legally responsibility for the costs. I could never have paid for any of these legal practitioners from my resources, they were paid by Ken Dixon.


22. Further I was directed in the strongest possible terms by xxxxx xxxxx to not attend my bankruptcy hearing or I would suffer extreme prejudice. I obtained a doctor’s certificate for stress and sent it to the court and BHSC. David didn’t want the truth of the litigation conducted on their behalf to be revealed which would set the BHSC against them even more. The general context is described in my affidavit elsewhere.



23. I submit the issue of bankruptcy is not properly legally relevant to the test of an order for security for costs or standing in the court in this case. Rather the test is whether I have a strong case, whether it is in the public interest and other special factors outlined in the precedent cases such as KP Cable Investments v Meltglow read in light of the Melville Case, and other guidelines such as those in North Cronulla Precinct Committee Incorporated v Sutherland Shire Council by Pearlman J, unreported 29 July 1998:

- proceedings involve no private gain

- contribute to the proper understanding of the law

- the basis of the challenge is arguable

- the purpose is clearly to protect the environment


24.  I have written and my agent has left a message as recently as 9 October 2008 for xxxx xxxxxx for the Official Receiver at the office of the Insolvency and Trustee Service Australia.  I’ve had no response to date but can advise his view in previous similar environmental litigation in the LEC that:

 “it is not a matter for the Trustee neither to consent nor to object for the bankrupt commencing or to continuing these preccedings” dated 22 April 2005.


 This letter was provided to me in relation to proceedings Diamond v Birdon, Poyneed & HCC 40230/05 and 40430/05.  This and other recent correspondence to ITSA are attached at annexure 25.


- costs and fines paid in past cases

25..By way of notice to admit facts Birdon’s solicitor wrote by email received about 9 Sept 08 stating:

I further request that Mr Diamond advise as to whether or not he as ever paid any of the costs orders made against him in any of the proceedings he has been ordered to pay costs in the Land & Environment Court.


The answer is yes as In 1990 I was fined in the LEC $2,100 and costs of about $4,129 costs for a pollution event which was the result of sabotage by persons most likely involved with the sand mine seeking revenge for their own pollution fine of $10,000 in 1989. That is certainly what I believe. Bignold J accepted that it wasn’t caused by me in Farrell v Diamond 1990. This is discussed further below. I paid the full amount in about 1991 or 1992 from memory and had an order by the sheriff Gary Mills at Windsor taken off my 15 tonne crane held as security.


- costs still owed in previous cases

26. The case where I was made bankrupt for unpaid costs to BHSC never got to the substantive issues because I was blocked in a huge highly contested ‘security for costs order for $90,000’ before I could even litigate the main issues. This was a prohibitive amount to provide security for. The costs order was appealed to NSW Court of Appeal and I lost despite Bruce Woolf instructing Tim Robertson with conduct of the matter, and had costs against me at both levels, even though it was for and on behalf of Ken Dixon as explained below. Similarly in the costs orders against me by Birdon of $28K in 40900/2006 again I never got to the substantive issues with an arguably strong case of illegal sandmining because a security for costs order was made against me before. Clearly even in blatantly illegal sandmining operations a security for costs order literally using unlawful profits from sandmining to fund a legal defense is being used as a device to avoid the law. In this way I submit the security for costs rules at that time were being used in an abuse of process and a denial of natural justice.


27.  As regards costs of about $28,000 owed to the Birdon regarding my loss of a contested  interlocutory hearing regarding security for costs in 40900/2006– preventing me seeking orders for contempt of the 2005 consent orders:  My view remains that this amount should properly be set off against the property stolen or converted in a criminal way in order to keep me impecunious. This question was raised by way of admission of fact by the First Repondent in an email letter 9 Sept 08, page 4. We responded by my agent’s email  of October 7th 2008 as follows:


"Please advise what arrangements if any Mr Diamond wishes to make with respect to my client's outstanding judgement for costs which is presently in excess of $30,000 including interest."


Please refer to the attached letter of 24/1/07 [Diamond] to Mr Tom Bruce: Mr Diamond advises he is authorised by the owners of the stolen property listed (namely his son and mother) to say that the $27K($30K?) should be set off against the $88,500 owed as per the legal letter of demand. To anticipate your response I am instructed that these movable assets were agreed as under the custody of Bruce held for Diamond as an outsome of a negotiated mediation including HCC in 4/12/96, which included an option to buy [back lot 1] of 2 years granted to Diamond by Bruce. Further that just prior to the expiration of the written option expired in 1999, Diamond met in Byrnes office and was given a verbal indefinite extension [to buy back lot 1] subject to finances to Diamond which representation Diamond relied on, and in return maintained diplomatic and benign legal relations in respect of the impacts of the sandmine up until 2004-5. At this time Birdon/Bruce wrote and refused formally to honour the verbal agreement of an option to buy. But the resolution of return of the movable assets was never resolved to the present.

 [SAM editor: Solicitor for Birdon Contracting Pty Ltd has rejected this allegation of legal obligation to Diamond so the alleged debt of $88,500 is highly contested.]

The attached letter of 24/1/07 [Diamond] to Mr Tom Bruce setting out some $88,500 in stolen goods owed by Birdon Contracting Pty Ltd/Tom Bruce to Neville Diamond is at annexure 26.


The letter refusing to allow Diamond to exercise an option to buy his land back in breach of undertakings and representations is annexure ……



28. Costs owed in the 1997-8 case to BHSC have been explained as genuinely owed by Ken Dixon and Dixon Sands (Penrith) Pty Ltd for whom the litigation was conducted and financed under s.123 (3) of the EP&A Act 1979.

28A. Costs owed to Dixon Sands and then Dept of Planning are also genuinely owed by Dixon Sands ( Penrith) Pty Ltd for whom the litigation was conducted and financed under s.123 (3) of the EP&A Act 1979.

29. Costs owed to Birdon in the interlocutory hearing over security for costs in the contempt proceedings should be set off against money owing for criminal property conversions, damage and theft by his staff. [This view is contested by Birdon Contracting Pty Ltd which through their lawyer says they are "spurious" assertions. SAM editor has seen extensive photographic evidence of vandalism and other corroborating evidence of theft.]


Posted by editor at 9:16 AM NZT
Updated: Friday, 24 October 2008 9:15 AM NZT
Ken Henry, Treasury Secretary, too green for Coalition, too redneck?
Mood:  cool
Topic: aust govt

 Dr Ken Henry

Members of the big meeja and public might need to cross refer to this piece of extensive quotation of Alan Ramsey from early 2007 ... quoting Ken Henry in all the news.

Notice especially the regrets over the family history of old growth logging and the false resource economics behind that futile and tragic pursuit by his own beloved father, no less.

Ken Henry is getting a blowtorch from avowed rednecks in the Senate Estimates by Coalition MPs. But is it because at least in part for his prediliction for environmental economics? In the age of climate change. As the Murray Darling dies? As Opposition Leader Turnbull has a history as investor or director of a Solomon Islands clear fell operation?

Mmm. One wonders the mixed motives for attacking Ken Henry. And remember champ, it's not easy being green! But it's the right thing to do.

7 April 2007 More than enough dirt under his fingernails - Opinion - smh.com.au 

Growing up near Taree, Ken Henry would wade out, with his father and brothers, in the river estuaries of the NSW North Coast and stand there, up to his armpits, to catch flathead late at night on the turn of the tide. That was 35 years and more ago. He learnt early to move with stealth among predators. Henry still risks deep water. He still lives with sharks. And he still stalks flathead fish and, at times, boofhead ministers.

This week was one such time.

The Howard Government appointed Henry head of the Commonwealth Treasury on April 27, 2001. At 43 he was already one of our most respected bureaucrats. He has an honours degree in commerce and a doctorate in economics. For five years in the late '80s and early '90s he was Treasury adviser to Paul Keating. Now, at 49, he has 22 years in Treasury and Peter Costello is his sixth treasurer. Last Australia Day, the Government made him a Companion of the Order of Australia, our highest gong. The award jointly acknowledged his "care of native wildlife". It meant the real thing, not the politicians.

Nothing better explains Henry than one of his speeches. And no, I don't mean the behind-closed-doors speech leaked to The Australian Financial Review this week that hugely embarrassed the Government and its Treasurer over water and climate policy (see panel at right). That speech saw Costello respond: "Treasury is no water expert. Treasury is good at Treasury." The minister known as The Smirk was at a school for circus performers at the time. It seemed appropriate.

Malcolm Turnbull made an even bigger dill of himself.

Turnbull is John Howard's "water boy" and behaves as such. He told ABC radio loftily on Wednesday: "Treasury don't know anything about water … This is really a political issue. All that's required is political leadership." And when the ABC persisted, Turnbull said: "You've got to make judgements, but they are not judgements, frankly, that a, you know, that someone who is only a sort of financial person can make … It involves dealing with practical people, people who've got a lot of dirt under their fingernails, who work all day in the bush and know how things work."

What an arrogant twit he can be.

Turnbull should read Henry's speech to the Australian National University in Canberra on September 21, 2001. Maybe he might learn more than sneering banalities about "people who work all day in the bush and know how things work". Henry dedicated that speech to "my father, John Henry, timber worker". It was the year the timber worker's son became the most senior economic bureaucrat in the country.

Here is what he said, in part: "At the age of 13 I didn't know what economics was. But I had already had my first lesson in economic policy. It is, quite plausibly, a lesson that may well explain why I am where I am today.

"Some 38 years ago, my parents walked off the dairy farm they had been leasing and my father returned to cutting railway sleepers and, later, logs for local sawmills. For all but a few years of the remainder of his working life, my father worked in the timber industry, mostly felling logs in state forests. He worked long hours, leaving at dawn and returning after sunset.

"One day, about 30 years ago, he arrived home in the late afternoon. He had something he wanted to show his three young sons. He bundled us in the car and took us down to the sawmill. There, on the ground was the biggest log we had ever seen. When our father stood at its base it was apparent it measured some two metres in diameter. And it was 12 metres in length, as long a log as a truck could carry. All up, about 7000 super feet of timber.

"He was very proud of his achievement: to have taken out a log of that immense girth, single-handedly, with nothing more than his chainsaw. And we were very proud of him.

"Then the questions started. 'Dad, how old do you reckon that tree must have been?' 'Oh, very old. At least 100 years. Anywhere up to 500 years.' 'Where did you find it?' 'It came out of the Lansdowne State Forest.' 'How many houses do you reckon you could build out of it?' 'The framing for at least three houses.' 'So how much would that log be worth?' 'I'm not sure, but certainly thousands of dollars.'

"When I think about it now, it seems to me it could have been at that instant that my future career was set. The continuing questions and answers went something like this: 'How much do you get?' 'Not much, only a couple of hours' wages' 'So the sawmill gets the rest?' 'Not all of it. The state government charges royalties on all timber taken out of state forests. Royalties are like a tax.' 'So what would the royalties be on that log?' 'A few dollars I guess, perhaps not that much.'

"Our father told us he had cut down hundreds of trees just like the one from which this log had come, but he'd had to leave them lying in the bush. He explained that old hardwoods typically had hollow cores - 'pipes' he called them - and the sawmill didn't consider it economic to pay the transport costs to bring in a log with less than one foot of solid timber around the hollow core.

"The problem was you couldn't tell how hollow a tree was until you cut it down. That didn't trouble the sawmill, because it paid royalties only on what it took out of the forest. The Forestry Department didn't get a cent for what was left behind on the forest floor. So hundreds of trees, hundreds of years old, were torn down, their carcasses left to rot where they fell. The memory of that afternoon has troubled me ever since.

"I don't know if I managed, at the age of 13, to discover the source of the sense of unease I felt at the time. But if I did, I hope that as I looked at that enormous hardwood log, that I found entirely unacceptable the fact that somebody could legally appropriate, for only a few dollars, this extraordinary asset of the people of NSW that would take perhaps hundreds of years to replace. I hope this smacked to me of highway robbery. I hope I was less than impressed that the elected representatives of the people of NSW appeared to be demonstrating such disregard for the protection of their citizens' property. I hope I wondered about the ability of governments - and not just the venal - to redistribute wealth so arbitrarily, and to disenfranchise future generations. And I hope I vowed that one day I would do something about it…

"Growing up on the NSW mid-North Coast, I was reminded, constantly it now seems, of the failure of economic policy. I recall my disquiet on learning that ancestors on both sides of my family were 'cedar getters'. 'What's a cedar getter, Dad?' What I heard him say was something like: 'Well, that's why we don't have cedar trees anymore.'

"I remember being concerned when I learned that every generation of Australians caught fewer and smaller fish than the preceding generation. I remember learning that weeds were not native plants, and that rabbits that destroyed river banks and foxes that killed chooks were not native animals. I remember learning that soil erosion was caused by humans. I remember being horrified by the apparently wanton destruction wrought by the rutile miners who ripped through the sand dunes where I used to surf, leaving a moonscape devoid of the stunning Christmas bells that used to grow there in profusion.

"I remember being perplexed when the Killabakh Creek that tumbled down through the rainforests of the Comboyne Mountain and then swept around the periphery of my maternal grandmother's dairy farm simply dried up.

"I remember being absolutely staggered to learn that one of the conditions of my paternal grandfather's retaining possession of his 600-acre 'soldier settler' block of rainforest timber was that he clear a certain number of acres each year, and watching over the years as the trees were replaced by bracken fern and lantana, and as the soil washed into the creeks and gullies, replacing the native fish that had long since been exploited to extinction. And I remember, too, that as the weeds spread and farming became too difficult, my grandfather turned to more facile means of making a quid, stripping the native orchids out of what was left of his rainforest property. And if I didn't understand the 'how' or 'why' of these things at the time, I did at least develop a deep conviction that something was horribly wrong…

"When I asked my father the other day why the Killabakh Creek dried up when I was a schoolkid, I suggested that unpriced access to irrigation water was surely the culprit. He thought that might have had something to do with it. 'But don't forget,' he added, 'we fell timber all over the Comboyne Mountain, pushing in dozer and snigger tracks and roads for the log trucks. That's where the water would have gone. You can see it from the erosion left behind.' My question for policy advisers, then, is this: how much erosion are we going to leave behind?"

How's that, Malcolm Turnbull, for "someone who is only a sort of financial person"?

The view around town that got up Howard's nose

Ken Henry's speech to a closed meeting of Treasury staff in the main conference room of Canberra's Hyatt Hotel was made three weeks ago. When a copy of Henry's speech was leaked this week, the paragraph that most got right up multiple ministerial noses in the Howard Government was one on water and climate change. The paragraph of seven sentences totalled 127 words in a speech running to 2500 words.

It said: "We have also worked hard to develop frameworks for the consideration of water reform and climate change policy. All of us would wish that we had been listened to more attentively over the past several years in both of these areas. There is no doubt that policy outcomes would have been far superior had our views been more influential. That is not just my view. I know that it is increasingly widely shared around this town. But we are not giving up. Water has got away from us a bit in recent times, but it will come back for some quality Treasury input at some stage - it will have to - and we are, at last, right at the centre of policy development in the climate change area."

Then, much further on: "Many of the policy problems we face today have a whole-of-government character. Examples include the adverse impact on workforce participation from the interaction of the tax system with the welfare system; the severe capability deprivation suffered by most indigenous Australians; widespread environmental degradation, due in part to a history of inappropriate [cheap] pricing of the nation's natural resources; and water rationing. We can't tackle these problems alone. But neither can anybody else. More significantly, they won't be tackled without our input."

There you have the nub.

John Howard's $10 billion water "plan" is a political response to the growing crisis of (a) Kevin Rudd's runaway leadership of the Labor Party, and (b) the dying Murray-Darling river system and the communities that feed off it. What the plan proposes is $6.5 billion for "irrigation efficiency" and $3.5 billion to buy back water licences.

It is not a policy for the wider public interest. It is a policy to hand over $10 billion across 10 years to vested interests - farm irrigators - who are draining dry the two great rivers, the Murray and the Darling, and their tributaries. It is a policy that has nothing to do with regeneration of the river system. It is not about the proper pricing of water.

It is about bush votes in an election year.

Howard made this obvious this week.

He responded to the Henry speech on Wednesday, first with some rousing self-applause: "Let me say the greatest initiative that this country has seen in water security was the plan I announced on the 27th of January, and I think it's a very good plan that's been very widely applauded." Only then did he go on to say: "I didn't quite understand what [Henry] was getting at" - oh yes, he did - "but in any event the important thing is the Treasurer and I discussed that plan at some length and it's very strongly supported in the community. In the end you have to understand that governments make decisions on these things."

Indeed. Decisions by an increasingly ratty-sounding Government that is in trouble. That doesn't mean Howard can't win. Morris Iemma proved that. It does mean the Government will be spending heaps. As Ken Henry told Treasury staff: "We will confront uncommon policy challenges this year. But keep in mind that in every challenge there is an opportunity.

"Let me draw together some of the strands.

"1) Both the probability and the cost of policy error in the current environment is especially high. 2) This election year will increase our workload, responsibilities and risks. 3) But we can make a difference to the wellbeing of Australians by our rigorous analysis and taking advantage of the opportunity to pursue further reform … This role, this purpose, makes me proud to do what I do."

Posted by editor at 8:34 AM NZT
Updated: Thursday, 23 October 2008 6:47 PM NZT
Wednesday, 22 October 2008
Diamond Diary Part 1: Amazing career of environmental litigation
Mood:  on fire
Topic: legal


Over the last 2 months we have been doing pro bono work for Mr Diamond as his court agent in the Land & Environment Court jurisdiction.

He recently swore a 41 page affidavit which gives a history of his at times very effective legal activism from 1995 to 2008. Regretably his latest case was dismissed yesterday due inter alia to $30,000 in unpaid costs to the same sandminer in previous litigation, and bankruptcy.

Justice Lloyd in the Land & Environment Court stated he couldn't and wouldn't look to the detail of how he came to be owing $30,000 to Birdon Contracting Pty Ltd, or how he became bankrupt, we say fighting the (mostly) good fight against illegal sandminers. In fact Lloyd J said his affidavit was "inadmissable" for lack of relevance.

We respectfully disagreed with his Honour and duly lost but in any event we offer the same hot affidavit for the information of the court of public opinion, so to speak. Because there-in is quite a ripping yarn: Of 

  • evil sabotage,
  • fire bombing, home invasions and gunfire
  • polluted waterways,
  • stolen guns,
  • drains illegally bulldozed through crown land,
  • rival sandminer secretly funding litigation with thousands in cash paid over in the LEC toilet so lawyers would go on that day,
  • revenge by allegedly bent council officers resulting in $6M in lost revenues to one sandminer
  • same officers allegedly getting the boot including a general manager
  • Ministerial salve on the open wound of 'the sand wars at Maroota',
  • $50,000 payoffs to go away, and
  • ongoing illegal sandmining impacting World Heritage Tinda Creek under a lapsed consent since 1999-2008.

The decision yesterday by Lloyd J is a legal setback for an irrepressible character to be sure. Meanwhile he has given SAM permission to publish his affidavit, at least the first 41 pages given there is another 392 pages of cross referenced annexures as well. There will be some legal vetting too and deletion of some names where necessary.

Following is first installment of the Diamond Diary:


My environmental and community credentials, and public interest in this litigation

2. I have been campaigning for protection of the conservation values of Tinda Creek  which runs into Gibba Swamp, Wollemi Creek and the Colo River all in the Wollemi National Park for 24 years due to water pollution issues and now more recently over use of water resource and other environmental impacts. I am well known in the Tinda Creek area having supported various neighbours over the years including collective effort to fight bushfires in the area. For instance I co-ordinated the Seventh Day Adventist and Coptic Church helpers in 1994 – a very bad year for bushfire.


3.  I know from direct observation that Tinda Creek runs into the Wollemi National Park and I understand it has been listed as World Heritage since November 2000. Refer material from NSW NPWS and Australian Heritage Database at annexure …2…


4. I know from direct observation that Tinda Creek runs adjacent to the sandmine site on private property at Lot 2 owned by Birdon – and in part by the Crown, and a useful corroboration of that is figures 2 and 4 in the Chris Jewell expert report for HCC of June 2007 which shows the close proximity of Tinda Creek to the edge of the sandmine which sits on the former wetlands feeding the creek. This report is at annexure …3.. Another good location map for Tinda Creek is the extract from the NSW Government Topographical map 1:25,000 of 1977 which shows where the creek was before the sandmine sitting on its watercourse now in 2008.


5. Since 1999 onwards I have been very worried about  the combination effect of sandmining and prolonged drought and now in the last few years climate change impact on the water resource from Tinda Creek to

(a) this section of the Blue Mountains World Heritage Area (“WHA”) of Gibba Swamp, and

(b) other landholders in the area.


6. I have nothing to gain financially from taking this litigation that I am pursuing in this case. My motivation is the public interest in protecting the WHA and Tinda Creek waterway. I submit there are special circumstances to allow my case to go forward:

(a)  being one of the very few people with the working knowledge of the situation in this remote location;

(b)  with a genuine concern for Tinda Creek into the WHA; and

(c) the courage to stand up against the menaces and criminality I and other landholders nearby have encountered from the sandmine interests at Tinda Creek;

(d) that I can satisfy the legal tests for no order as to security for costs as outlined below in my affidavit under a separate heading.


7. I have a reference letters from peak green group The Wilderness Society with perhaps 20,000 members and Colong Foundation for Wilderness supporting my litigation in these proceedings. Colong in particular are highly respected for their dedication and expertise in relation to the WHA. Their founder Milo Dunphy was instrumental in promoting the World Heritage listing, as well as founder of the Total Environment Centre in 1973. Colong are cited in the Bibliography of the Australian Heritage Database linked to the website of the Australian Heritage Database, Federal Department of Environment, Water, Heritage and the Arts. Refer Annexure …2….



8. My agent informs me and I truly believe that he has spoken last week with Andrew Cox, Executive Officer for the peak green group NSW National Parks Association and that the NPA are “not happy with what is going on up there”. My agent also informs me and I truly believe he has spoken by phone to Tara Cameron with the President of the Blue Mountains Conservation Society and that she also is very concerned about any expansion of the sandmine affecting the water resources to that section of the WHA. Her email is attached at annexure …5…..


8A. Other neighbouring landholders are also worried about Tinda Creek drying up for instance xxxxxxxxx  downstream of the sandmine on Tinda Creek on the west of Singleton Rd. Refer email correspondence at annexure …6…


9. I am also supported by my accountant neighbour Mr Aldo Crino at xxxxxxx     who has provided me with pro bono support in the past, including use of his mailing address for personal security reasons. A letter evidencing his retainer is at annexure …7….


9A. I am similarly supported by my court agent Tom McLoughlin with a career back to 1992 in public service for the environment. He is working for me pro bono because he says this issue is so important to that part of the WHA. Tom’s mentor was Milo Dunphy from 1992 to 1996 until Milo died, and he has a zoology degree and is a solicitor in NSW on a restricted certificate, recommenced in 2006 having been admitted in 1990. His resume is attached at annexure …8..


10. My agent Tom McLoughlin also wrote a submission objecting to the 1996 sandmine development application for green group Friends of the Earth, refer annexure …9…. And he has had extensive correspondence with senior levels of then NSW Carr Govt about Tinda Creek around that time refer annexure …10..


11. My agent Tom McLoughlin is also owner and editor of the community news website SydneyAlternativeMedia established in January 2007 with about 20,000 pageviews per month readership. As further evidence of the public interest in this case he has written two web based articles outlining issues of public concern about the Tinda Creek sandmine operated by the Birdon entitled:

(a) 6 October 2008 “Google Earth reveals illegal drain intercepting Tinda Creek to World Heritage area?”

(b) 10 October 2008 “Misleading plan and letter by sandminer in threat to Blue Mtns World Heritage Area?”

A copy of both articles and record of readership figures are attached at annexure …11..


12. Other character references regarding my standing in the Hawkesbury community and public interest in this litigation include:

- Jackie Verzi, formerly public officer of Rapping Association Inc till it finished in 2006, now public officer of Hawkesbury Council Watch Inc

- Lydia Clare, Hawkesbury Spirtualist Centre

- Peter Waite OAM -


Refer Annexure 12. 


13. Recently I celebrated my 60th birthday with a party of 20 at a local restaurant in Windsor, although I have been living out of the district at Turramurra for several years now.


14. I was brought up in a strict Catholic family and have been a spiritual person of a Christian non denominational approach for at least 20 years and including with Hawkesbury Spiritual Centre for 6 years as per the reference from Lydia Clare referred to above and more recently MOSAIC Community Church Hornsby for 18 months. MOSAIC stands for Multicultural One Stop Information and Assistance Centre and every Sunday without fail I help Korean Australians with cross cultural lessons, and various other people. I have also attended Midway Pentacostal Church at South Maroota 1996-2000.


15. I am not an educated person in the formal sense in part because I was diagnosed with a tumour in 1971 and spent 6 months in hospital and was lucky to survive, and why I limp to this very day. My education has all been in the general workforce as a truck driver, and music business with the Musicians Union and trading in cars and managing land. I probably have a theatrical streak from working for such big names in the 1970ies like ACDC, Dragon, Deep Purple, Manfred Man and many others. This lack of education has affected my ability to conduct litigation on my own behalf in the Land & Environment Court where I have won several and lost a few. I have relied alot on the flexibility in section 39 (1) of the LEC Act 1979 giving access to people like me as it reads:

Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality ….. as the requirements of this Act …. permit”

I very much appreciate the help and patience given to me over the years by the Registry staff, Registrars and judges. I know I need more professional support in order to conduct public interest litigation efficiently and am making a lot of progress with that help in 2008. My goal in reality is to finish with this very case and then never return to the Land & Environment Court jurisidiction ever again and manage rock bands and do other ventures.


16. I am a pensioner in part because of medical problems with my spine, neck and back and I am primary carer of my 87 year old mother with whom I live.


My public interest environmental litigation credentials – successful cases


16. Contrary to the Birdon’s Grounds for the strike out motion at paragraph 1q and the compromised affidavit of Russel Byrnes dated ……..  I have always had as my main concern the environmental protection of Tinda Creek, and Wollemi National Park, now a WHA:


(a)   In 1994-95 I briefed my current court agent Tom McLoughlin who was then the Sydney City CBD based NSW Campaigns Coordinator for The Wilderness Society about a developer’s plan to install a big smelly water polluting mushroom composting ‘factory’ at Tinda Creek by Mushroom Composters Pty Ltd. It was located downstream of the sandmine at Tinda Creek, at the property known as the Slip Rails on Lot 5 at Mellong. The property is now owned by Uri Annin who is also an objector to the Tinda Ck Quarry today along with another downstream local landholder Danny Pullicin. Tom organised on my behalf in 1995 as a freelance organiser for a Wollemi Legal Fighting Fund supported by diverse green groups namely:

- Colong Foundation for Wilderness

- The Wildernes Society         

- Confederation of Bush Walking Clubs NSW

- Australian Conservation Foundation

- Coalition of Hawkesbury & Nepean Groups for the Environment

- NSW Nature Conservation  Council

- Total Environment Centre

- NSW National Parks Assoc.



We raised collectively about $15,000 from the Walkers and other local landholders, as well as an advert in the Sydney Morning Herald , to retain Bruce Woolf & Associates. Proceedings commenced in the Land & Environment Court as Diamond v Mushroom Composters Pty Ltd in 1995. The developer offered to buy me out at “market value” if I withdrew my objections and  litigation. My valuation at the time was $260,000 for Lot 1 which I owned under mortgage. However when we had a meeting at their office at Ebenezer and they showed me the 3 km odour buffer zone into the national park I declined the offer. This knew this would be an illegal use of the national park. This is all evidenced on the HCC’s council file for that DA such as letter of 1/8/94 Mushroom Composters to Mayor Wendy Sledge at annexure  12A…referring to a buyout clause.  I served the LEC Application to the LEC on the day the HCC were meeting to  consider an approval. The developer withdrew the DA, and there were no costs ordered after all our expense and time. Refer the attached community campaign materials from that time at annexure …13..

(b)    In about 1996 I also raised concerns about a large chicken farm in the headwaters of the Wollemi-Tinda Creek area at Mellong which development was still approved but greatly reduced in scale and does cause some pollution risk to the area to this day. Copies of relevant correspondence is at annexure ….

(c)   In 1997 I commenced legal action as public officer of Tinda Creek Spiritual & Environment Centre Inc v Birdon Contracting Pty Ltd & Poyneed Pty Ltd & Hawkesbury City Council 10041/1997 against unlawful sandmining as referred to at 1.n and 1.o in Byrnes/Birdon letter of 9 Sept 2008 setting out their Grounds for the strike out motion attached at appendix ……. The settlement of that court action, with no costs order, was based on an agreed option to purchase my block of land back from Birdon which they bought in a forced bank mortgagee sale at only $130,000 when the property was valued at $ 260,000. The option was to buy back half my property for $65,000 plus subdivision cost plus interest. A local press report of that outcome is at annexure …14..  dated August 20 1997 in the Hawkesbury Gazette.


(d)   Diamond v PF Formations Pty Ltd  and Baulkham Hills Shire Council 10064 of 1998 (unreported), which included Brian Preston then as counsel for BHSC who literally wrote the book Environmental Litigation. This case was run efficiently by Bruce Woolf as solicitor and undisclosed principal Ken Dixon paid for him and the expert reports. This was a sand mining case at Maroota settled by consent, resulting in protection of the public’s Maroota Trigonometric Reserve and strengthened rehabilitation conditions. There was no costs order. Preston told our solicitor at one stage we “had some good stuff” in our evidence. Issues included protection of threatened species of flora listed by the NSW Scientific Committee. The decision is unreported on the internet however my agent’s copy of the final consent orders and Friends of the Earth media release are attached at annexure 16.. These proceedings were financed up to some $40,000 by Ken Dixon paying costs and disbursements of experts and lawyer Bruce Woolf, with pro bono research help of Tom McLoughlin then representing Friends of the Earth Sydney.


 Picture: The infamous 30 metre deep so called surface road to nowhere sandmine at PF Formations Pty Ltd site, Maroota late 1990ies.

(e)   I understand from conversations with current and former Mayors of BHSC John Griffiths and Sonya Phillips (who happens to be Ken Dixon’s cousin) and I truly believe it to be the case that as a result of our successful and expensive case in 1998 of Diamond v PF & BHSC 10064/1998, the regulatory officers at BHSC knowing it was financed by Dixon’s, initiated legal action to close them down as revenge: Cr Rasmussen of Hawkesbury City Council told me he was told of this revenge motive by Peter Lee as  an officer with BHSC, previously HCC.  I was not a party to that litigation but it cost Dixon’s about $100K and they lost and it had the consequence that Dixon’s sand mine was closed in 1999 at Maroota. It also cost them $6M in sales for that year.  Dixon’s took their grievance/allegation about partial conduct in BHSC toward PF Formations to the State Govt ministers and hierarchy of the Planning Dept. Dixon’s were allowed to recommence mining in 2001 by the State Govt. This in turn brought great pressure on BHSC officers involved in the Maroota sandmine precinct with the following consequences :

-          planning officer xxxxxxx who [allegedly] perjured himself in the 1999 litigation (BHSC v Dixon) forced to resign in around 2002 for improper use of council resources for a private consultancy

-          xxxxxxx as special projects officer pressured to resign in late 2004.

-          xxxxxxx the GM was told to resign or be sacked by the Minister for Local Govt in 2004

-          xxxxxxx  was also pressured to resign about 2004 for maladministration

(f)      In 2005 I commenced legal action in Diamond v Birdon Contracting Pty Ltd, Poyneed Pty Ltd & Hawkesbury City Council in proceedings 40230/05, and Diamond & Kent v Birdon Contracting Pty Ltd, Poyneed Pty Ltd & Hawkesbury City Council  40430 of 2005 with another Applicant Peter Kent. Both cases were settled and – on the surface but not in fact - resolved by consent orders with all parties paying their own costs. This was yet another attempt to get some regulatory compliance discipline on the sandmine operation at Tinda Creek in the consent orders.  There were no orders for costs. Regretably Birdon blatantly breached those consent orders as per my letter of 24 Feb 2006 to the GM of HCC and Russell Byrnes for Birdon Contracting (refer annexure …16….) so I commenced contempt proceedings which were not successful and are discussed further below.  As part of the settlement of that case Birdon paid via his solicitor a total of $50,000. Initially they offered money without promising to fix Tinda Creek and I refused. Finally we agreed as I was a bankrupt to pay $40,000  to my son as compensation, stated expressly for past criminal events at Tinda Creek, with $5,000 to myself for my expenses in running the litigation, and $5,000 for Mr Kent for his expenses. In the Grounds dated 9 September 2008 served on me for this strike out motion there is significant reference to Mr Kent and Mr Richardson not attending court or revealing their personal details. The fact is they were too scared to given the vicious campaign of intimidation I have suffered from the sandmine staff and criminal associates. That is my sworn evidence.

(g)   David  Kettle Consulting [agent for Coca Cola Amatil] v Gosford City Council 2005, where Tom McLoughlin appeared for me as agent over a 2 day hearing. There was no order as to costs. The final judgement is reported on the Austlii website for 1 October 2008.  In an interlocutory hearing Pain J gave me judgement on 4 July 2008 (refer annexure …17…) despite severe contest by both other parties to participate as an intervenor under the Double Bay Marina rule applying s 38 (2) of the LEC Act 1979. Evidence for my intervenor application included reference from registered charity (since 1981) Mangrove Mountain District Community Group Inc signed by Margaret Pontifix a local authority figure, retired science and agriculture high school teacher of 40 years (refer annexure 18..). My participation was only on a limited basis but as a result my agent and I with the support of the local community were able to seriously influence proceedings with several expert reports that I believe both other parties wanted to keep away from Commissioners Moore and Taylor in the main hearing:


(i)                  170 page report of Dr Noel Merrick, UTS groundwater centre of 2006

(ii)                the 33 page report of the  CSIRO of July 2008 regarding climate change with major implications for future drought and extreme temperatures in NSW

(iii)               Weatherzone report of driest  month of May on record for New South Wales suggestive of a climate shift or change.



There were no costs orders in this case and the final decision of Commissioners Moore and Taylor leaned heavily on the precautionary principle regarding climate change which was bolstered by the contribution of my submission of expert evidence reports. Indeed I was the only participant to submit evidence on climate change issues because it appears Gosford Council were not up to the job. For instance the Commissioners in their  judgement state [bold added]:

32 In response to a question in relation to ground water recovery rates, Mr Lane [single parties expert] confirmed that he had assumed a continuation of past rainfall and aquifer recharge patterns.

33 The most recent information published by the Intergovernmental Panel on Climate Change makes it clear that the validity of such an assumption is improbable. Recent observational data show that relative to the worst-case scenario model developed by the IPCC, climate change is occurring more rapidly and at a greater magnitude than anticipated. These recent significant upwards increases in climate change rates coupled with an inherent uncertainty associated with the limited temporal data elucidating the ground water-extraction relationship, direct us to consider the matter with caution.

34 In BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237,
[2004] NSWLEC 399, McClellan CJ made the following relevant observation with respect to the consideration of an appropriate level of caution in such matters:

113. In my opinion, by requiring a consent authority (including the Court) to have regard to the public interest, s 79I(e) of the EP&A Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch, this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment.

114. Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment.

[later in the judgement Commissioners Moore/Taylor go on to say:]

39 We do not express our conclusion in precise terms as being a response to the precautionary principle (and without undertaking a rigorous analysis of whether or how that principle should be applied to this operation in light of the totality of Mr Lane’s evidence). However, we have concluded, consistent with the approach inherent in McClellan CJ’s observation, that this approach is the appropriate balance after weighing up the evidence of Mr Lane and the Department’s past estimate of the volume of water capable of being extracted from the aquifer without damaging it [on one hand] and the broader scientific uncertainty about the extent to which climate change is highly likely to continue modifying rainfall and inturn impact potentially on the health and resource capacity of this aquifer [on the other hand].

I am proud of the result in the Kettle/Coca Cola Case because contrary to a report in the mass media (Sydney Morning Herald 4th October 2008 “Coke clear to pump extra water, court says”  the community were quite successful in forcing CCA in the public interest to continue a further 3 years of trial conditions, which they greatly objected to. My agent has summarised the legal outcomes of the case in this legal article on SydneyAlternativeMedia website “Coke cola juggernaut hits corrugations: Pumping trial and risk continues until 2011, copy at annexure …19….  


(h) Most recently in these proceedings  Diamond v Birdon & HCC 40733 of 2008, I have been vindicated to date having stated for years to the HCC that the sandmine has lapsed consent for non compliance with their 1996 consent condition 4. This relates to failure to provide to the State Dept the details of   “Erosion and sedimentation control devices” critical to the proper functioning of the waterway. This finding is contained in the Chief planner Owen’s report of 29 July 2008 at pages 43-44 and page 70 (refer extract at annexure …20.). I am further vindicated by the expert report by hydrologist Chris Jewell of June 2007 (refer annexure …3..) for the HCC finding that the final landform of a proposed 22 ha lake will reduce the water resource to the WHA by 37 to 53% (at middle of page 11 of the report) and this would be against state govt policy. The evidence from the CSIRO and Weatherzone in the Coca Cola Case regarding climate change as a major impact matches up with the expert report by hydrologist Jewell. The Jewell report was only obtained by the HCC in large part due to my lobbying to bring greater regulation onto the Birdon.

I attach the CSIRO and weatherzone reports at annexures …21… and 22.. as they are relevant to the strength of my case in these current proceedings as regards precautionary approach to drought/climate change future impact on Tinda Ck into the National Park and as such relevant to the orders I seek regarding the urgency of rehabilitation of the final landform of the sand quarry literally on the natural creek line (orders in the Application/Amended Application 8, 9, 10, 11, 12, 13).  These reports of climate threat are also relevant to proposed order 20 for a new EIS subject to legal clarification by the court of whether s.96 modification can be designated development.

The NSW EPA have also written in 2007 to the HCC expressing concerns about the size of the tailings ponds at the sandmine causing excessive evaporation at point 10  on page 2 of their letter of 17 Sept 07  . The expert report is attached at annexure …..

(j) Additionally regarding the Kettle/Coca Cola Case I now have good evidence via a conversation with Margaret Pontifix secretary of the Mangrove Mountain District Community Group Inc, and farmer at Peats Ridge, that DWE licensing officer xxxxxxx xxxxxxx had solicited a bribe from her to obtain an increased water allocation around …2003…….. She gave sworn evidence on Sept 4 2008 making a general reference to this without naming xxxxxxxx as such to say the court should be wary of delegating future decisions to DWE. But in the car ride back to the northern suburbs on the night of 3rd Sept 2008 she was categorical it was xxxxxxxx  seeking a bribe and I took file notes of the conversation. The significance for me is that xxxxxxxx  was the licensing officer at Tinda Creek where clearly Birdon are using way more water than they are licensed to use as per the declaration I seek  at paragraph 23 in my Amended Application in Class 4.



[Next installment of the Diamond Diary Part 2: "unsuccessful cases"]

     Picture: Dog rescue Trig Hill Area, Maroota late 1998. Community inspection discovers pet in distress mired in slurry pit of PF Formations Pty Ltd, Neville Diamond digging with hands.

Posted by editor at 1:34 PM NZT
Updated: Wednesday, 22 October 2008 4:15 PM NZT
Forest friendly film maker fundraiser for free speech versus Govt loggers
Mood:  smelly
Topic: human rights


[This from Harriet Swift convenor of ChipStop, a very reputable person and group for the environment (according to SAM's Editor, Tom McLoughlin, solicitor in NSW)]

Subject: Fundraiser for Jeni McMillan's court costs

In 2004, Jeni McMillan was fined and arrested while filming the documentary 'Bankrupt - the man or the system?' in southern NSW forests. The story is an exposé of forest mismanagement and the impact it had on the lives of former forester, Gerhard Wiedmann and his partner Corinne Jenkins. Jeni had pro-bono legal support and paid for all her other expenses but still needs to raise 2900 dollars towards court costs. We are hoping to raise this with your support.
Funds raised above this amount will go to The Bega Environment Centre.
Please pass this on to anyone who may be prepared to help.
Christal George and Jeni McMillan
A suggested donation is 75 dollars. (Perhaps lower income friends may consider a joint donation?)
Donations can be forwarded to:
Bendigo Bank Account
BSB 633 000
Account no. 130310105
Doners so far include:
M.Smith and Sarah Chapman
Jeni's story...
'I appealed against my original 100 dollar on the spot fine and won. The other charges were also dismissed. However NSW Forests chose to appeal the magistrate's decision to the NSW Supreme Court. I raised a constitutional challenge 'implied freedom of political communication' because we do not have a Bill of Rights in Australia to protect freedom of speech. We argued that a Forestry regulation for 'safety' was being misued to prevent information on their management practices being revealed to the public.'
...After 4 years of court proceedings her options were to take the matter to the High Court of Australia which would be prolonged, expensive and unlikely to succeed in front of a conservative bench. Or to have the case reheard in the local Bega court.
'I reluctantly chose the re-trail so I could get on with my life. I saw Gerhard and Corinne worn down by their battle for justice and I wanted to use my energy in more positive ways than being locked in a legal combat that was being increasingly narrowed by the terms of the law.'
...The local judge gave his verdict in favour of NSW Forests.
All Jeni's documentary work has been self funded. The documentary 'Bankrupt' was used in TWS' Forests for Water roadshow and continues to be screened at Grass roots venues and recently on channel 31. Since Jeni has been in France she has screened the film at a community venue and given a public lecture on the subject 'What positive changes can we make?'
See the documentary in two parts at:

Posted by editor at 1:19 PM NZT
New indy Shappelle Corby film tackles the Big Media bad manners
Mood:  chatty
Topic: big media



This media release is from a gentleman called "Mark Simpson" by email yesterday, and we have lifted a YouTube frame to give some context.

We at SAM don't have a view on the merits of the film on YouTube but we present the link in the interests of free speech, and debate.

Also we do wonder about a tangential matter from that part of the world of the Bali Bombers in the news alot in the last week, who killed 200+ Indonesians and Australians in 2002, only a few months after this writer visited the Island back from a world trip. The 'shock jock' Alan Jones on 2GB mentioned just prior to 7 am early this week to the effect: "I have to tell you I am opposed to the death penalty." Gutsy call Allan. Very gutsy, based on principle not vengeance. Why lower our collective selves to their murderous fanatical level? 



An independent film has today been released which condemns Australia's
media over their long term reporting of the tragic Schapelle Corby case.

In 2005, Schapelle Corby was sentenced to an unprecedented 20 years in
an Indonesian prison cell, for importation of marijuana, following one
of the most harrowing show trials of modern times. To this day she
maintains her innocence, with observers and human rights support groups
urging her release. As a recap, the film cites many of the disturbing
aspects of the case, including the refusal of the court to test the
drugs for country of origin, the subsequent burning of the untested
drugs, and the much lesser value of the drugs in Indonesia than in the
country of alleged export, Australia.

The main body of the film, however, highlights the Australian
government's position in terms of its strategic relationship with
Indonesia, and identifies a six step media management process designed
to influence public opinion against her. The specific steps described by
the film range from the selective and repeated use of the phrase
"Convicted drug smuggler, Schapelle Corby" to what it terms "constant
and unsubstantiated smear and innuendo against her and her family". It
further alleges the marginalization of the reporting of real events and
news, and the systematic shifting of focus from legal and human rights
abuses. For each step, the video also explains the impact, in terms of
effect on public perception and opinion.

Rachel James, of Schapelle.Net, states: "Some of the worst excesses in
Australian journalistic history have been evident with this case.
Stories have been fabricated, and legally shown to have been fabricated.
Opinion has been presented as fact, and real facts have been buried. The
Australian public have slowly but surely had a false picture pulled over
their eyes, to blind them from what they had actually seen for

She continues: "The real news is the show trial, the breaching of
Schapelle Corby's legal and human rights, and her appalling conditions
and suffering over the last four years. But when was any of this last
reported? This excellent film highlights many of these issues."

The movie also quotes the CLA (Civil Liberties Australia), who recently
accused the media of becoming her persecutor, and the FPSS (Foreign
Prisoner Support Service), who in the same article allege media

The video, which is titled 'Burying the Truth, Burying Schapelle Corby',
can be viewed on YouTube (
It is also available from several Schapelle Corby support sites
www.schapelle.net/media.html) and a range of human rights
related portals.

This is the second film on this case from the same independent UK based
production team, which promises further investigative releases in the
future. The film was researched using direct archival sources, with
analysis of reports dating from the onset of the case itself.

Posted by editor at 12:39 PM NZT
'GFC' delivers Callan Park planning back to Green Liechhardt Council from Sydney Uni?
Mood:  a-ok
Topic: nsw govt

Last Monday saw Premier Rees asked a doozey of a question by compere Kerry O'Brien along the lines of 'Why don't you do what some other governments have done and support a vote of no confidence in yourselves and bring on a general election?'

It will be all there on the 7.30 Report transcript. But what won't be visible is the quick talking, very articulate Mr Rees gag for a second over the political reality behind the question.

Hardened political activists will say that's just rhetoric and the constitution is just that with 4 year terms, with many benefits avoiding the opportunism and flaky policy games that go with arbitrary election dates.

Hard heads will say another 2.5 years to run can make a world of difference. SAM news website tends to agree with that sanguine perspective too.

But there is definitely real politik adjustments in the State Govt settings of late. The breaking news that Callan Park is being taken out of the hands of Syney University is a big win for open space and open access campaigners of Inner Sydney.

How much is this decision announced on abc local radio in the last 2 hours is due to Sydney Uni pulling back from it's expansionary, pro development budget due to the Global Financial Crisis? Certainly the EDO lawyers tell us recently they are noticing a range of damaging projects falling over for lack of easy finance. How much is success of the local Green Party in general council elections in September? Armchair observers will be debating the parents of this government switch. Probably both.

We notice in the abc radio coverage that the empire builders at the 'NSW Writers Centre' are implicated in the now dead dirty deal with Sydney University as owners of their building in Callan Park. If true then shame on them being captured by the ALP machine within Sydney Uni seeking to enclose public land exclusively for Big Education.

And then there is the Coalition counter intuitively last Sunday announcing it's policy to formally repeal the developer's Part 3A section of the Planning Act which we read here as a wedge on the browns in the ALP Government, as ex Premier Bob Carr wedged the Coalition on green issues in 1995.

New Premier Nathan Rees is nothing if not, like this writer a political student of the 90ies.

Posted by editor at 12:10 PM NZT
Updated: Wednesday, 22 October 2008 12:34 PM NZT
Tuesday, 21 October 2008
World heritage vandal gets technical win in Land & Environment Court ...for now
Mood:  accident prone
Topic: legal

Sent: Tuesday, October 21, 2008 3:04 PM
Subject: Temporary setback to protect Tinda Ck world heritage Blue Mtns in LEC class 4 dismissal today

Dear Pike Pike & Fenwick/Andrew & Hawkesbury City Council GM/Peter

As categorical as Lloyd J's decision was this morning to dismiss public interest litigant Mr Diamond's class 4 proceedings against sandminer Birdon Pty Ltd - on the fatal technical objection to his status as a litigant namely previous unpaid costs order to Birdon, and current bankruptcy status - some things to note:
1. Our environmental supporter Peter Waite OAM, JP was in court for our case today in support of applicant Diamond, and has reaffirmed with me by telephone this afternoon he is still willing to help finance a security for legal costs for a future case against Birdon up to $10,000. Mr Waite will support another public interest litigant to bring to account Birdon's vandalism of the World Heritage Blue Mtns listed Tinda Ck area.
The substantive breaches of the Environmental Planning & Assessment Act 1979 are still to be tested in a robust way.
Mr Waite was carrying with him an 80 page advice from Tim Robertson SC regarding another woeful quarry situation in the Hornsby LGA which he has obtained at his own expense.

2. This development is now returned to the decision making role of HCC as consent authority. You still have the formal advice of your chief planner Matt Owens of 29 July 2008, as well as presumably legal advice of PPF, and certainly EDO advice, that the s.96 'modification' application by Birdon cannot proceed as consent has lapsed. In other words the mine has been operating illegally arguably for 9 years already. It has also comprehensively failed to follow the rehabilitation, reporting and staging conditions of consent. We refer also to the damning letter from DWE attached dated 3 March 2008 repudiating managing director of Birdon, Mr Tom Bruce regarding compliance with consent condition 4. You also have the warnings from your own  independent expert hydrologist Chris Jewell regarding water loss from expanded lake 17 to 22 ha in size.

3. This writer in all the circumstances will be watching HCC's decision making with great interest and can commit to a class 4 proceedings in my own name, not hampered by financial debts or bankruptcy. Now that we have completed the training run with Neville Diamond as the public interest applicant we have all our evidence collated and ready to marshall for the main legal contest.

4. Mr Diamond was specifically not declared a vexatious litigant in relation to Tinda Ck by Lloyd J with the implication that arguably if he can overcome his bankruptcy and outstanding $30K debt to Birdon for the previous case, he could conceivably join a future legal action.

5. Your client Hawkesbury City Council are on record stating HCC is willing to mediate a class 4 claim regarding Birdon's lapsed consent as per advice of PPF, and general manager Jackson. Further that you neither support nor oppose Birdon's highly defensive security for legal costs tactic.

6. I have a tentative offer of pro bono help from a respected barrister in the LEC jurisdiction as of yesterday. The EDO will likely be available to run my case for me also.

7. We have the ongoing public interest of reference providers The Wilderness Society, Colong Foundation for Wilderness, Hawkesbury Council Watch and also expressions of concern by NSW National Parks Association and Blue Mountains Conservation Society. Other public stakeholders will also be interested to support a challenge to Birdon's vandalism of the Tinda Ck area as they did against Mushroom Composters Pty Ltd in 1995.

8. The ongoing damage to the World Heritage listed Tinda Ck area of the Blue Mountains is not a trivial concern and given the party political tensions from local to state to federal level we feel that it won't take very much for the federal government minister Peter Garrett to take an interest in the destruction of part of the iconic Blue Mtns listed area in your LGA.
Please do not hesitate to contact the writer on tel. 02-9558 9551 or 0410 558838 or by return email.

Yours truly

Tom McLoughlin, court agent for Neville Diamond.

CC public interest stakeholders
Sent: Monday, October 20, 2008 5:22 PM
Subject: Diamond v Birdon & Hawkesbury Council

Dear Mr O’Loughlin,

We have been informed that Mr Diamond contacted Council following our earlier email message to you of today. 

Although we do not know exactly what was said, it appears as though Mr Diamond may believe that Council is opposed to a mediation.

We do not wish there to be any confusion as to Council’s position in these proceedings tomorrow or later.

Council’s position in relation to Birdon’s Notice of Motion tomorrow is to neither consent nor oppose the orders so sought against Mr Diamond.

If the proceedings are not struck out or permanently stayed and are to proceed, Council will consent to a mediation providing that all parties are brought to the table.

It is a matter for the Court whether to require Birdon to attend mediation under s.26 of the CPA.


Andrew Simpson

[solicitor Pike Pike & Fenwick for Hawkesbury City Council, cc Peter Jackson General Manager HCC]



Previous posts on this issue are here:

16 October 2008 Hawkesbury City Council public duty to protect their World Heritage park in court Friday 9.30am
Mood:  blue
Topic: legal

Friday, 10 October 2008

Posted by editor at 4:38 PM NZT
Updated: Wednesday, 22 October 2008 1:19 PM NZT
Monday, 20 October 2008
Questions with notice for Addison Rd Community Centre AGM 5 Nov 08
Mood:  chatty
Topic: local news

Sent: Monday, October 20, 2008 3:36 PM
Subject: Questions with Notice for Addison Rd 2008 AGM to be held on 5 November at 6pm in Hut 21.

Dear general manager

Questions with notice for Annual General Meeting

1. Why have the asbestos roof tops on numerous huts still not been sprayed with sealant according to best practice?
Supplementary: Given the local federal member is a senior minister why can't he organise this? There is $600 million in the general news today earmarked for local government projects.
2. Why has there been no competitive job selection process for the general manager's position for nearly a year, as promised to at least one board member would happen by April 2008, even then 6 months overdue?
Supplementary: Has the board compromised itself by flouting this normal public administration principle, indeed breached its duties as directors/management committee members on the basis of bias, or negligence or whatever in failing to advertise a competitive job selection process?
3. Have financial accounts been provided and circulated to the centre board members and/or other tenants for the 'private business' that has been operating from 2003 to 2007 at the gallery on two levels, and ancillary 3 studios for private rental?
Supplementary: Have financial accounts for the new incorporated association set up since late 2007 to control the gallery and ancillary rooms (after pressure to reveal the financial accounts), been provided for year 2007-2008?
4. Is it necessary to obtain a development approval from the Local Council for say the (very big) converted shipping container on previously open space in front of Reverse Garbage? Similarly DA approval for construction next to the community food forest, and the awning in front of the gallery?
Do ARC need DA approval with Local Council!?
CC Marrickville Councillors, ARC tenants


Posted by editor at 4:54 PM NZT
Updated: Monday, 20 October 2008 5:36 PM NZT

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