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sydney alternative media - non-profit community independent trustworthy
Friday, 9 October 2009
'Single parties expert witness' in world heritage sandmine case alleged deception? Part 1
Mood:  sharp
Topic: legal

We have been in correspondence with the NSW Dept of Environment, Climate Change and Water since a court decision in mid August 2009.

The Land & Environment Court registry advises that their CD tape of the hearing is still unavailable despite an order over a month ago. Something about a backlog.

Here is the troubling material which is a little complex but important because this guy will be giving evidence on mining cases in NSW in the future. All this will be shunted off to the NSW Attorney General later today, as suggested should happen by the senior solicitor for Hawkesbury City Council, one of the parties in the litigation. Our role was as pro bono legal agent for two objectors Diamond and Sneddon, backed morally by several peak and local environment groups. If we had the bucks we could have cross examined the 'single parties expert'.

That is, in this jurisdiction the single expert is paramount with no other expert being allowed, though expert evidence can be presented for their comment.

Sent: Tuesday, September 08, 2009 5:30 PM
Subject: breach of cl283? - re alleged 'confusion' on approved plan, masking no deep burial of dredge fines breach. Umwelt Feb 08

Dear .....,
CC DECC .......
You will have our latest community media link on 'the wrong EIS' that was submitted to the LEC in Birdon v HCC 11133 of 2008. What a sham.
Here is a brief of evidence I promised last week on the deceptive s.96 application document given to council as consent authority in 2006. There is a simple aspect to this and a more complex aspect.
1: Simple issue: Wrong allegation over which is the approved plan
See the highlight in yellow [of the extract of letter below]:


This claimed confusion above as part of their s.96 application (directly cross referenced attaching application form) is given the circumstances a calculated fraud: The approved plans were always known but inconvenient. Here are some images of the approved plans they were in breach of for years. They are 3 large format April 1996 plans by Port Stephens Design Services with a reference number:




The hammer blow in terms of evidence may be this: A memo by senior planner Greg Hall noting the approved plans are exactly what they are, implying that owner Tom Bruce/sandminer Birdon just doesn't like them:


No confusion. Just hard to comply with after cascading effect of non compliances especially re deep burial of dredge fines (below). This brings us to the more complex aspect of the deception regarding avoidance of requirements of the approved plan.
2. Complex deception: Cover up of miner failure to comply with deep burial of dredge fines in the approved plan to date, indeed also council failure to regulate compliance
Of particular problem for the miner has been their failure so far to comply with the approved plan (as shown above plan 3 of 3) with the burial of dredge fines 14 to 20 metres deep - possibly because too hard in engineering terms, certainly no crown land consent from 15.24 metres 1996-2009.
Umwelt's supplementary s.96 application letter of 24 July 2007 states at page 3 "The area under the existing Silt Pond [not to be confused with Stage 1 Dredge Pond] is not proposed to be extracted due to the depth of silt that exists in this area."
But they would be obliged to under a clearly identified "approved plan" April 1996, 3 of 3 as above. That's why it had to be airbrushed?
Birdon finally make the concession August 09 here in highlight below, even when legally they needed crown consent years ago:


We believe this failure to bury at depth, raised by the objectors only,  has forced Birdon (and council) to the negotiating table, to strengthen any consent orders. (Also the Jewell 07 water report of high evaporation effect supported by DECC has been influential.)
So only in August 2009 does Birdon reveal publicly a March 2009 Dept of Lands letter of permission to apply to extract and bury at depth using crown land, and still no commercial licence yet (?).
Another problem for the sandminer is they have placed silt up to 10 metres deep all over the main "stage 1 dredge pond" (they now call "stage 5") which was till this year the major (high evaporation) dam on the site. We estimate about 350,000 tonnes of silt there. This means they can't bury dredge fines at 14 to 20 metre depth without moving that difficult clayey tailings overtopping the sand resource. 
In their August 2009 response to issues in the case Birdon/Umwelt say they will decide later whether to mine below relatively shallow silt fines in a new "stage 5" overtopped with clayey silt - see bottom of page :


(We have a letter in the files we put into the court exhibits, signed by the managing director Bruce dated around 2002 that stage 1 of the quarry is "complete", so more evidence there never was any real intent to comply with the deep burial condition. )
Birdon clearly don't want to comply with the deep burial requirement since 1996 -2009, or now in 2009 or in the future. And especially in stage 1 dredge pond because there is so much of it.
What status is the 1996 obligation to bury at depth now, after C'er Brown 18th August 09 has waved through a new surface area plan and this latest uncertain 2009 EMP???
A recent letter from chief planner Owens 4 Sept 09 to objector Diamond suggests this non compliance re dredge fines burial is "temporary". As if, another 13 years? What indeed is safe for the environment, wildlife, people including bushfire workers using the lake for water resource? What islikely to be a stable landform, with dredge fines at the surface batters of a big lake?
No doubt the regime in the original approval was designed that way to keep dangerous silt away from the surface to avoid another $10K water pollution fine as happened in 1989 against former business partner Poyneed Pty Ltd/Jan Stout and sons.
This situation with deep burial of dredge fines is all very uncertain and unsatisfactory regarding lack of progressive rehabilitation requiring deep burial of dredge fines.
Nor have we even quoted yet the EIS which requires 30% only of site disturbance at any one time at section 5.1.2. Not affected by the new plan or new EMP either.
On another aspect we have the full water report now by Umwelt 08 for the miner as of last Friday attached. By way of contrast we have the Council report by Jewell 07 showing ostensible breach of water license volumes to 2007 due to evaporation effects. We don't believe Jewell 07 is wrong or that Umwelt/Jamieson have contradicted him on the real evidence. If DECC could corroborate this understanding by comparing the two reports maybe the miner could still be held to account for bleeding the creek dry for about 2 km.
I believe [deleted] at DECC has background on the Jewell 07 report and may be able to assist with a comparison of Umwelt for efficacy.
We will email the Umwelt report to DECC separately as it's a large electronic file given the diagrams.
Yours truly, Tom McLoughlin legal agent for objectors.


Posted by editor at 12:37 PM NZT
Updated: Friday, 9 October 2009 12:44 PM NZT
Wednesday, 30 September 2009
Rees' govt executive arrogance is the real goose in McGurk Inquiry?
Mood:  quizzical
Topic: legal

Premier Rees and his inexperienced ministers are posturing in the news as if they are constitutional lawyers. They are trying to bully a NSW Greens MP from asking probing questions about whether a developer was involved in the infamous McGurk murder, or not as the case may be.

But that's not the law speaking, rather Premier Rees and the ALP Govt executive arrogance. In fact the Parliament in the manifestation of the Upper House Legislative Council does have judicial power of a sort. They can ask questions in parallel to a police investigation. Arguably the police as an arm of the executive of government may on ocassions not be the most objective agency to probe say a political murder.

How do we know NSW Parliament has judicial power parallel to the courts? Well we recall something of this curious nature in our 1980ies law degree from ANU Canberra.

But here is a quote saying as much from New South Wales Legislative Council Practice  By Lynn Lovelock, John Evans (2008) by a quick google "parliament judicial power".

In New South Wales Legislative Council Practice - Google Books Result by Lynn Lovelock, John Evans - 2008 - Law - 706 pages at page 579

As a lawyer SAM's editor also understands there is a convention around ethical obligations that questions to a witness need to have a reasonable evidentiary basis. Otherwise questions descend into innuendo.

In this Parliamentary Inquiry the developer in the witness box admits that he has been blackmailed by the victim - that's a potential motive and evidentiary basis for the question whether he was involved in a murder of the blackmailer. 

The developer should be made to answer on oath ... to parliament. And the police for that matter, and if it comes to that a court. Or not depending on the facts of the matter.

Posted by editor at 10:07 PM NZT
Updated: Thursday, 1 October 2009 11:59 AM NZT
Tuesday, 8 September 2009
World heritage sandmine scandal: Wrong EIS submitted to Environment Court by miner and council legal teams?
Mood:  sharp
Topic: legal

Picture: Approach to Tinda sandmine quarry on Putty/Singleton Rd with Yengo NP in the Blue Mtns World Heritage area in the background. Tailings ponds are out of sight behind the cyclone sand washing plant in foreground. The site is an inholding surrounded by national park including Wollemi NP to the west. The mine itself is on what used to be headwaters of Tinda creek.

SAM wrote of this controversial sandmine previously here:

Friday, 28 August 2009

There we detail misleading and deceptive evidence by the sandminer expert Peter Jamieson regarding size of extraction exceeding the approval plan area. 

Similarly the mine is opposed by peak green groups The Wilderness Society, National Parks Association, Blue Mtns Conservation Society, and Colong Foundation for Wilderness.

Although the mine is now extended and approved by the Land & Environment Court's Commissioner Brown recently it's been a rocky road for Birdon Pty Ltd as sandminer, and Hawkesbury City Council as regulator, in the world heritage area precinct: In the last year or so the opponents have noted:

    1. 10 DECC (Dept of Environment etc) conditions inserted albeit waffly language
    2. mine forced them to dewater the highly evaporative tailings dam
    3. a chief of DECC engaged now, perhaps due to sudden death of their responsible officer Jo Zurrer only 45 years old with stroke in her office;
    4. exposed HCC failures to partially vindicate Diamond's crusade
    5. lawyer Webster, expert Jamieson, and mine manager Ray Bygraves on the backfoot re illegal behaviour.
    6. Birdon spent something like $200K in legal gymnastics to defend their history of vandalism and short payments of s.94 contributions.
    7. LEC did their job and heard the objectors at an onsite inspection, with valid evidence and submissions
    8. objectors starting to move on from this planning farce

The LEC has not seen fit to web publish the verbal decision handed down by Commissioner Brown at 3pm 18th August 2009 witnessed by this writer and objectors.

Here is an earlier procedural contest which was lost by council and sandminer in favour of the non party objectors presided over by Biscoe J which has been published:

Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 143 (10 August 2009)

It has been suggested to us that because the final outcome before C'er Brown is 'an order by consent of the parties', there is no judgement to be published. However a decision by C'er Brown was in fact delivered verbally on 18th August 2009 cross referencing the evidence and legal submissions of the objectors. Indeed council and sandminer were unusually cooperative in this legal 'contest' so there was not much to decide there.

As indicated above wrong evidence was submitted to the C'er in making his decision. Cynics have suggested Council was not vigorous in pursuing the large number of blatant non compliances over 13 years by this sandminer.

Today SAM can reveal that the NSW Land & Environment Court presided over by Commissioner Brown in this part of the proceedings was also provided with the wrong Environmental Impact Statement. We have been told by a senior barrister that providing the wrong EIS 'will have serious consequences' for those involved.

Here is a picture of the redundant May 1995 EIS, next to the operative November 1995 EIS:

We are advised that the correct EIS may also have been removed from council's own file.

SAM as legal agent for objectors Messrs Diamond and Sneddon has inspected the the court exhibits including court bundle of documents from the parties being Birdon Pty Ltd (owned by Tom Bruce, represented by Russel Byrnes solicitor, John Webster barrister) and Hawkesbury City Council (represented by solicitor Stephen Griffiths, instructed by Chief Planner Matthew Owens).

The only EIS in court exhibits is "May 1995" - the incorrect EIS. We have written to council's lawyers on this very point previously. Why does it matter?

Here below at right (compare old EIS at left) for instance is the correct EIS requirement at p23 for

"In addition, a series of bores will be installed to monitor groundwater behaviour."


This requirmement for monitoring bores has the force of a consent condition as indicated in the picture below at the pink underline:



An issue in the recent LEC merits hearing raised by objectors was whether under clause 36, schedule 3, part 2 of the Environmental Planning & Assessment Regulation 2000, there have been sufficient non compliances to require a new EIS in 2009. We said there was failure to implement for 13 years the monitoring bores required by the EIS and the Nov EIS is critical to that claim, withheld from the LEC.

Indeed the monitoring bores were also the subject of a court order in 2005 via a consultant recommendations (see clause 4d "EcoWise" below) but still never implemented. Both that court order and the EcoWise report were excluded from the court bundle provided to the Commissioner, presumably to further mask the incredible non compliances in this case.



Here are the recommendations of the mystery Ecowise(Golder) report referenced in the 2005 LEC order requiring (again like the 1995 EIS) for the groundwater monitoring bores to be implemented, also exluded from the court bundle until the objectors submitted the documents:

Indeed the expert for sandminer Birdon (an engineer Peter Jamieson) was able to argue his water modelling was authoritive in the absence of such baseline monitoring bore data. Jamieson was contradicted by an expert hydrologist proper, Chris Jewell employed by Council. Jewell lamented the lack of monitoring bore data in his July 2007 report. But the council declined to pursue any cross examination of the water modelling report for the sandminer.

There are other irregularities in this environment case: A critical governmet memo (by DLWC) as to Tinda Ck falling within protections of the now defunct Rivers & Foreshores Protection Act is missing the critical 2nd page in the court bundle (at page 132):

Here is that memo in full and note 2nd page stating the Rivers & Foreshores Protection Act (now repealed) did apply to Tinda Ck:



Is this a fix being run through the LEC by a bogus 'order by consent'? Certainly we think the Chief Judge Brian Preston at the LEC who literally wrote the book on "Environmental Litigation"  should be briefed on the irregularities in this case all at the expense of Tinda Ck. And so should the Dept of Environment as well as the Dept of Mines.

Stay tuned for the next installment in the Tinda Ck series of stories: When did approved plans become optional extras? When the sandminer says they are 'confusing'!?

Posted by editor at 1:30 PM NZT
Updated: Tuesday, 8 September 2009 3:44 PM NZT
Sunday, 22 March 2009
Judgement reserved in 'illegal sandmine' case impacting Blue Mtns world heritage
Mood:  quizzical
Topic: legal


 Picture: Current image from Google Earth dated around 2003, says one objector. The image reveals silt tailings - which act like quicksand - to the very surface of the tailings pond. The council approval in 1996 of the final lake form is contrary showing tailings should be at 15-20 metres depth for public and environmental safety.


We wrote recently here about the 20 year saga of a 'farm dam' operating really as a sandmine dominant purpose:

8 March 2009 Submission to NSW Govt/DECC lawyer Gordon Plath on fine silt deathtrap in the Blue Mtns WHA, Hawkesbury LGA
Topic: legal

As far back as 1989 the operation copped a $10,000 fine in 1989 for water pollution of Tinda Ck into the Wollemi National Park.

Then Hawkesbury Council in its wisdom approved the illegal sandmine in 1996 after mediation with all private and govt agencies and community. One retired councillor is known to have done the excavation work on the original works.

Since that time various neighbours have reported a string of mysterious and violent events. A home invasion and sabotage of waste tankers. Sheep on a nearby hobby farm all being shot dead. Bushfire mysteriously ignited and burning out fences worth $10Ks. Rave parties and all the recreationals that go with that.

In 2004 an extension of time variation lodged in 1999 was finally approved literally 5 years later with the sand mine operating regardless.

In the current proceedings Birdon Contracting Pty Ltd v Hawkesbury City Council 11133 of 2008 the sandmine is seeking a 1.3M tonne "variation" of the existing mine. Trouble is they need to expand because they have buried dangerous 'silt fines' - the clayey leftovers of washing of sand extracted - at the surface of the tailings ponds instead of 15 to 20 metres deep. So they have breached their 1996 approval. What's worse the final landform 'lake' will be a death trap for wildlife and people as a result of shallow quicksand just below the water surface (as pictured above).

Last week we wrote to the peak green groups following this case:

Sent: Wednesday, March 11, 2009 9:19 AM
Subject: HCC GM instructs council lawyer for inspection to go ahead on first day 16 March after all

Dear conservationists
I'm advised via objector Diamond apparently in conversation with the General Manager of Hawkesbury City Council Peter Jackson last night my letter of concern has caused  Jackson to reconsider - and he has directed his lawyer Stephen Griffiths - a senior partner no less of firm Pikes - to go back to the court and seek the inspection proceed on the first day as per usual court practice.
Lawyer Griffiths has called Diamond again this morning literally as writing this and confirmed this application will go ahead this morning. Fingers crossed.
That indeed was the purpose of my letter: That any orders by consent waving the illegal sandmine through would not go quietly. This is good, assuming it happens by Monday 16th March when the case commences.
Russel Byrnes who is solicitor for sandminer Birdon in response to my letter of concern has made various threats to me about my legal career even though I am acting as agent only not solicitor - as permitted by the legislation of the LEC. I have copied these threats to the EDO for their file.
And lawyer Byrnes denies being a business partner of Birdon Contracting Pty Ltd, the sandminer which was put as a question. But this is what he said in his sworn affidavit sworn 20 October 2008 at para 16 (sub paragraphs 54 and 55) and I quote:
"Mr Bruce also knows that my interest in such a venture [another sandmining proposal] is in partnership with his daughter and son in law who are my partners in other business venture." 
I repeat this is Byrnes own affidavit. Clearly Byrnes is more than just a lawyer in this current matter, with personal and financial ties with the family of managing director of Birdon, Tom Bruce.
It's not at all relevant but I understand Tom Bruce likes to take an annual vacation skiing the slopes of Aspen. He's done very well out of this illegal sandmine to date if not other business. And now he wants to sell this one to Adelaide Brighton Cement and cash out. And avoid responsibility for all the damage done too.
And so the preparation for the case 16 to 18 March continues. We are in the clinches and care and attention to detail is a priority now. Wish us luck.
Yours truly
Tom McLoughlin, agent for the objector Neville Diamond.
As it happens the court decided later that Wednesday 11 March 09 instead to hear a preliminary legal issue on the first day and not proceed with the inspection. In case this question made the whole 3 day hearing redundant. Fair enough too.
Trouble is the preliminary issue became a 3 day hearing last week attended by this writer. There is now a reserved judgment and that's before even taking evidence and objectors submissions with the court standing in the shoes of the council as consent authority. This second half will have to be rescheduled sometime, if at all. That's the normal process of 'a merits' review in what is known as class 1 of the court's jurisdiction with the court as the council reconsidering the whole thing.
We can report that solicitor Stephen Griffiths of Pike Pike & Fenwick for HCC was very vigorous and at times we think masterful in presenting the evidence and legal authorities. The whole argument was about consent condition 4 back in 1996 and whether 'details of erosion and sedimentation control' had been 'approved by the Department of Land & Water Conservation', now the Dept of Water & Energy. No doubt to avoid the very $10K fine for water pollution 7 years earlier in 1989.
Evidence from the manager of licensing from DWE Marwan El Chamy who was the relevant officer back in 1996 gave evidence in person. There was also appearances by owner of the mine Tom Bruce, DLWC/DWE officer Greg Brady and retired council officer John Pye. Curiously this last officer issued a letter of compliance for the sandmine despite admitting in the witness box that sandstone rock barriers were still outstanding.
The case for the sandminer depends on an April 1996 plan which includes limited side notes of erosion and sedimentation control which was in turn scrutinised and then reported on in Nov 96 to HCC, subject of an official mediation conference 4 Dec 96 and then built on later in Dec 96 with official extra condition 4 requiring (additional?) 'details approved by DLWC' . In effect Birdon say they recycled the April  96 plan without anything extra and got verbal approval by a 'phantom' DLWC officer. Manager El Chamy disagrees that a verbal approval would have been given and he certainly personally didn't give approval.
It was at times frustrating being in the court knowing about evidence that has not yet gone before the court given the preliminary nature of this phase of the case. For instance we understand that one retired legal officer for DLWC Ray Jerems wrote a legal advice contradicting the views of numerous departmental field officers that Tinda Creek did fall within the Rivers and Foreshores Improvement Act. That these officers saw that as their statutory approval role and that consent condition 4 mirrored that reality.


We understand from a senior source in the current DWE that the Jerems legal advice is 'rubbish' (actually a four letter word), the RFIA really did apply to Tinda Creek as per the views of variously Wayne Connors, Paul Bourne, John Ross in writing in the mid 90ies. But back at head office according to Jerems if DLWC had to treat Tinda Ck as under the protection of the RFIA with part 3A permits and buffers 'they would have to do it for all of them'.
That is a resourcing and staffing problem to protect smaller NSW waterways. Better to ignore the legislative duty? In other words systemic failure to apply the RFIA. The RFIA has now been replaced by another legislative framework according to senior officer El Chamy speaking to this writer outside the court last week.

Picture: Image from 1995 off the DLWC file of erosion and sediment hazard created by Birdon at Tinda Ck.


Now the decision of Justice Nicola Pain has been reserved in this complex long running factual matter.
However one very revealing exchange came on the second day. Stephen Griffiths for Council stated that if the judge decided in favour of the sandmine on the preliminary legal matter regarding enforcement of consent condition 4, and then also on the merits for an expansion there would likely be proceedings by 'government agencies and/or council' for breach of the Protection of the Environment Act and for non compliance with consent conditions.
One suspects the willingness of Hawkesbury Council to bring rigour so late in the day against Birdon sandmine takes a lesson from the furore over the preventable deaths reported in the Gosford Council Area recently, including here:
Related postings:
Tuesday, 28 October 2008 Diamond Diary Part 4: Attacking the messenger, not the vandalism Mood: don't ask, Topic: legal

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

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

6 October 2008 Google Earth reveals illegal drain intercepting Tinda Creek to World Heritage area? Mood: sharp


Posted by editor at 11:24 AM NZT
Updated: Sunday, 22 March 2009 11:37 AM NZT
Saturday, 21 March 2009
Marcus Einfeld aging disgracefully?
Mood:  incredulous
Topic: legal

We helped run a case before then judge Einfeld in 1990-91 in the Federal Court sitting here in Sydney. We were a young gun working for a top ten city law firm Baker & McKenzie, actually covertly recovering from malaria after an adventure in Papua New Guinea 18 months earlier.

Back then we had no idea what was likely to transpire in the news:

Former judge Marcus Einfeld gets at least two years jail ... l ... Sydney Morning Herald 20 Mar 2009

There will be a range of emotions we expect in the legal profession about all this. The few (!) honest lawyers will be shaking their head praying this is not their fate 20 years down the track. The liars in the profession will be just relieved that it's someone else that is copping it and not them. And the conventional crooks will also be cheering that someone so high has fallen so low down with them confirming their twisted view of a rotten world.

But back then in 1990 it was all about defending the concept of billable hours totalling some $600,000 against a Hong Kong developer Datuk Tan Sri Wong himself in dispute with his bank Westpac. They were all in the financial proverbial as regards the Burgundy Royale Casino project in Darwin and now Bakers wanted to be paid for their legal work.

This big debt collection was a graveyard for lawyers and no one wanted it. We rolled up our sleeves in the dusty storage room with some 200 boxes of files. We monopolised the word processing pool and produced "a magnificent" document according to senior partner Keith McConnell. Even so he couldn't save us from the sack later in 1991 when the mini property recession kicked in.

The folks at Bakers knew our values didn't match and they were so right. We left for 2 years at The Wilderness Society with one year gratis, in the process helping change the NSW Govt in the close fought March 1995 election over forest protection issues.

In any case we won the case which judgment came down in 1992. What we mostly remember was the necessity as an integrity test of the firm swearing an affidavit outlining where some reconciliations of the data were needed because in such a huge bill in two volumes there was bound to be some duplication or typographical errors. We feel that it was this very evidence of adjustments  clarifying the evidence taking account of human error which non the less left the overall picture of $600K of unpaid expensive legal work amongst corporate sharks very much intact.

Indeed it evidenced the integrity of the work of Baker & McKenzie. It evidenced the efficacy of the legal industry use of billable hours. Because if the evidence had not stacked up the whole concept of billable hours was at risk in Australia. But Einfeld J known back then ironically as the honest broker delivered victory to this writer and we are ever thankful for it. Though we have regrets being an instrument of the legal industry ability to charge such lusty fees ever since using that model. We were but doing our job as a young blood.

Indeed in 2006 when we applied successfully to re-commence legal practice we cross referenced the above material as much as to say you better let me back because folks, you owe me!

But we digress. These are our considered views on the Einfeld story so far:

1. He was indeed a legal lion. He represents a similar character to that played by Anthony Hopkins in political thriller All the Kings Men novel and now 2006 movie. It's a vehicle for Sean Penn, with political advisory from James Carville. The Hopkins character, revered retired judge also comes to a sticky end.

2. Time is the master of us all. Like the riddle in a cute section of Lord of the Rings nothing defies time. It reduces mountains to dust, turns oceans into desert and so on. In the human context we age and our great youthful powers decline.

3. Our view is the great and good Marcus Einfeld has a neurosis about his age and declining years. A very human frailty about getting old. The vanity of the legal lion is that he is in denial of his age. An error of judgement over a trivial speeding fine has evolved into a vain lie about making a mistake to somehow sublimating into an emblem of a much greater truth - that he is no longer the lion. Truly time is the master of us all.

The silver lining in all this is that Marcus Einfeld's fall from grace is a salutary lesson for all about aging. That we ought accept our middle age and older age just as conservationist  Milo Dunphy profoundly stated that death is part of living. Quite a profound comment that.

And remember Marcus Einfeld, Australia and Sydney especially does redemption very well. Start planning your cure for the pride before a fall. The lesson that there is no fool like an old fool in denial of their age. Community work at a soup kitchen perhaps. Counselling for yourself and by you for others.

Posted by editor at 10:07 AM NZT
Updated: Saturday, 21 March 2009 10:16 AM NZT
Tuesday, 10 March 2009
Laundering of illegal sandmine damaging Blue Mtns World Heritage, via imminent 'consent order' absent judicial analysis?
Topic: legal


To the Chief Judge Land & Evnironment Court, Brian Preston J

CC Counsel for Dept of Water & Energy, Tim Holden
Counsel for Dept of Environment & Climate Change
Stephen Griffiths, Pike Pike & Fenwick
General Manager, Hawkesbury City Council
Russel Byrnes, solicitor Birdon Contracting Pty Ltd
Environmental Defenders Office
National Parks Association
The Wilderness Society
Colong Foundation for Wilderness
Hawkesbury Council Watch
Minister for Environment NSW
Green Party MPs
Sydney Morning Herald
Sydney Daily Telegraph

Dear Chief Judge

Birdon Contracting Pty Ltd v Hawkesbury City Council no. 11133 of 2008  set down for 16-18 March 2009

I take the unorthodox approach of writing this open letter as agent for objector Neville Diamond supported by peak non government groups opposing an illegal sand mine adjacent to World Heritage Blue Mountains/Wollemi National Park at Tinda Creek. My letter is about the process and efficacy of the LEC.

From before you were a judge as counsel for Baulkham Hills Shire Council over sandmining at Maroota in the mid 90ies I have been monitoring the performance of your Land & Environment Court in my role as a vocational public interest advocate, and community media practitioner. And I've reported your fine speeches to the Environmental Defenders Office/Sydney University Law Conference.

Nevertheless it's a general conclusion of the non government sector, right or wrong, that the LEC has via the oppressive costs regime and political pressure become the developers court despite the fine intentions of the 1979 legislative model creating the court, the Planning Act and so on: That the LEC is being crushed by the weight of dark forces: Money talks and public interest walks. Lawyers get paid and the public interest goes begging.

There are honourable exceptions like the recent $400K fine for illegal landclearing of an internationally protected wetland. But the traffic is nearly all the other way, including by reversal of court decision by a corrupted parliament on a diet of developer donations.

So much for real politik.

Now we learn from Stephen Griffiths/Pike Pike & Fenwick, solicitor for Hawkesbury City Council, of cancellation of a court inspection scheduled for 16 March 2009 in Birdon Contracting Pty Ltd v Hawkesbury City Council no. 11133 of 2008. See letter attached. The fix, your honour, is in.
We are advised by Griffiths this was due to the approach of Russel Byrnes solicitor (and business partner?) for Birdon to the registrar 'so as not to waste the time of the court of 6 hours driving out to the site'. HCC apparently didn't even appear on the motion. Maybe they supported it?

One can well predict orders by consent will now proceed before even community objectors are able to give their evidence to the court sitting in the shoes of council on this s.96 variation hearing: Will the public interest objectors even get to put their evidence to the court of the 376,000 tonnes of illegal silt fines death trap proximate to the surface of a tailings dam, contrary to DA approval to bury at 15 metres depth, which would have been revealed by such an inspection?
That might unravel the whole narrative and false postures of the illegal sandmine for over 13 years?

A mess that embarrasses HCC as well as condemns sandminer Birdon? That reveals the DWE regulator as having been duped or distracted from their duty?

Will the HCC's own expert report by hydrologist Chris Jewell of massive intervention of the water flow in Tinda Creek to the world heritage area even be ventilated? Or suppressed?

The details of this demonstrably illegal mine are published as a publicly accessible archive here:
8 March 2009
I respectfully submit your honour that the LEC is under scrutiny, as much as Birdon, as much as HCC and the DWE/DECC. The ngo sector and the court of public opinion will be watching the process and substantive outcomes of this case closely. Just like the recent Coca Cola Water Bottling Case where the public interest achieved some real satisfaction via the judgement of Commissioners Moore and Taylor late 2008, with this writer agent for the same public interest objector with NGO support via ruling of Pain J. Win or lose in the Birdon matter.

In the latter eventuality we will approach the the Administrative Decisions Tribunal using Freedom of Information laws as an alternative forum in which to get justice for the World Heritage Area and the safety of the public.
Please do not hesitate to contact the writer with any queries on tel. 9558 9551 or 0410 558838 or by return email.

Yours truly

Tom McLoughlin, agent for objector Neville Diamond, principal/owner
www.SydneyAlternativeMedia.com/blog 25,000 readers per month.

Posted by editor at 8:33 AM NZT
Updated: Tuesday, 10 March 2009 8:53 AM NZT
Friday, 6 March 2009
Submission to NSW Govt/DECC lawyer Gordon Plath on fine silt deathtrap in the Blue Mtns WHA, Hawkesbury LGA
Topic: legal

Beware the 3 or 4 letter acronym. DECC in the headline stands for Dept of Environment and Climate Change. WHA is for World Heritage Area. LGA is Local Govt Area.

Plath whom we know of from our student days at ANU law school is manager of environmental litigation at DECC these days and good luck to him for that too.

Below is our letter regarding an appeal in the Land & Environment Court of NSW by Birdon Contracting Pty Ltd/Tom Bruce as managing Director represented by solicitor Russel Byrnes (also doing the Balmain harbour boat tragedy case) based in Surry Hills. Veteran environmental lawyer Stephen Griffiths of Pike Pike & Fenwick is representing Hawkesbury City Council. We are agent as per the LEC rules for objector Neville Diamond.

The case is set down for 16-18 March 2009. The area in question is shown above in the lower half image of 2005 as per a HCC flyover. The top image is the 'before' image from the early 1980ies. What has changed is an open farmland area with the rising of Tinda Creek in the far background converted to wet open cut sandmine.

This has cut 37% water flow to Tinda Creek and likely to cut 53% if it continues according to council's independent expert Chris Jewell, hydrologist. The World Heritage Area of Wollemi National Park is the neighbour having it's water strangled, along with other cowered neighbours of the sandminer. No wonder various groups including big conservative National Parks Association have bought into the issue here:

From: Andrew Cox NPA
To: ecology action australia
Cc: Zoe Palmer ; Keith Muir ; Alan Catford (PMC)
Sent: Thursday, March 05, 2009 6:58 PM
Subject: Concern over Tinda Creek Sand Mine

Dear Tom,

National Parks Association is a community-based conservation groups establish in 1957 and seeks to protect our natural areas.

We support your efforts and the efforts of Neville Diamond to prevent the continued operations of the sandmine at Tinda Park adjacent to the World Heritage listed Wollemi National Park.

For over a decade now, concerns have been raised about the suitability of the site and the likely impacts on the national park and its catchments. Their apparent illegal operations confirm our fears about the mine.

We are opposed to the continuation of the mine due to its detrimental impact on the water table and the runoff from discharges from the site into Wollemi National Park.

Please note that I will be on leave from Monday 9 March for five weeks. After that time, please contact Zoe Palmer, who will be acting in my position.

Kind regards

Andrew Cox,
Executive Officer
National Parks Association of NSW
PO Box 337, Newtown NSW 2042; Tel: 02 9299 0000; Fax: 02 9290 2525
Email: execofficer@
Website: www.npansw.org.au

'protecting nature through community action'

Here is the letter to DECC's legal man Gordon Plath:

From: ecology action australia
To: gordon.plath@environment.nsw.gov.au
Cc: Keith Muir ; bmcs@ ; Andrew Cox NPA ; Peter Cooper ; Kirsty Ruddock ; sgriffiths@ppf
Sent: Monday, March 02, 2009 7:08 PM
Subject: update on legal appeal re Birdon Tinda Ck sandmine
Dear Mr Plath/Gordon, managing solicitor DECC NSW,
CC Stephen Griffiths Pike Pike & Fenwick for Hawkesbury City Council
Birdon Contracting Pty Ltd (Tom Bruce managing director) v Hawkesbury City Council 16-18 March 2009 in the LEC, re Tinda Creek sand mine impacting Blue Mountains World Heritage Area
I write as agent for Neville Diamond as per the LEC Act 1979.
As suggested late last year in the email attached below dated 10 November 2008 the Hawkesbury Council did vote 12 to 0 against approving the s.96 variation for the Birdon Contracting P/L sandmine on the grounds of lapsed consent and therefore out of jurisdiction to extend the life of the mine in this way.
My pro bono client Neville Diamond suggests the consent had already lapsed for similar reasons on the previous occasion of a 2004 s.96 variation approved by a previous manifestation of the council. Now council newly constituted following the election of Sept 2008, and since 2004 now with a new
- general manager
- director of planning and
- mayor
have agreed with my client's legal argument of lapsed consent.
The HCC refusal decision has been appealed by Birdon/Tom Bruce as sandminer and goes to the LEC on March 16-18, 2009.
Though not strictly on the issues of the case re lapsed consent decision, there are two broader public interest issues for DECC's, and perhaps court's, consideration and indeed raised by us in verbal submissions before the council vote, namely safety and water supply to the World Heritage Area:
1. The fine silt tailings are a public liability quick-sand death trap and contrary to the staging plans approved by council way back in 1996 where the silt fines were meant to be 14 to 20 metres below the pond surface in the lake final landform. The developer prefered not to pay for crown consent license for depth 15.24m to 20 metres and dumped silt fines closer to the surface.
These silt fines are now situated from 1m to 5 below the surface water down to 14 metres depth according to the developers own verbal admissions to council in 2004 and 2008. This depth will be easily accessed by children, adults or wildlife with no safety fences anywhere in the final approved lake landform.
We estimate the silt fines cover an area of 400m by 200m (80,000 m2). The tonnage of silt fines we estimate at 376,000 tonnes (based on a 65:35 sand exported to silt fines ratio, with 700K tonnes sold since 1996 consent).
No doubt the council are aware any expansion of the sandmine hole/'lake' final landform makes the situation ever more dangerous (as well as compound damage to water flow in the Tinda Ck World Heritage area). This safety problem is not going away for people or wildlife.

We see options for a return to a safe sand mine operation as follows:

(a) In the short term exclusion fencing of the unsafe ponds;
(b) longer term
(i) The silt fines in this incorrect location would cost $millions to relocate safely to the DA approved greater depth, and there is no Crown consent from 15.24 to 20m depth anyway. This was the original plan for final land form with lake. The high cost relates to the highly viscous quality of the silt fines - hard to lift, hard to carry, hard to dump. There is next to no chance of this option being implemented; or
(ii) Capping the silt fines with at least 2 metres of surface compacted solid fill as has happened successfully with sandminers PF Formations at Maroota lot 198, and similarly Dixons at lot 196.
Unlike Maroota mining sites that are ridge lines where silt fines eventually dry out over years here at Tinda Ck the whole quarry is sited in wetland. If, and only if, a 2 metre cap albeit under water has efficacy starting from dry surface sloping to say 3 metres under water, we estimate 400m x 200m x 2m depth making 160,000 m3 of clean fill needed to quarrantine the dangerous fines for anyone swimming or entering the lake final landform. This would have to come from existing cleared adjacent private land of the developer.
The cost of this would be $500K to $1M plus at current prices for truck, loader, dozer, dredge barge, labour prices. This approach delivers a safe final landform of a lake as intended.
(iii) capping and filling in total the hole(s) with silt fines up to dry ground level final landform - which also benefits the re-establishment of the flow in Tinda Creek by removing a major source of evaporation of concern to the DECC: Kieran Horkan, Unit Head Sydney Industry letter to G Hall of HCC dated 17 Sept 2007 -
"10. As part of a remediation action plan to minimise evapotranspiration from open water DECC recommends that open water areas be reduced as much as possible".
We estimate this option would require 400,000 m3 plus of clean land fill from existing cleared adjacent private land owned by the same developer on lot 2. (Calculated as an area of 200m x 400m of silt fines from 1 to 5 m depth from surface water and another 2 metres to orginal dry ground level; That is 200m x 400m x 5m (average) depth = 400,000 m3.)
The cost of this mitigation would be $1-2M plus - in effect a penalty for breach of the 1996 DA staging - to relocate fill from adjacent cleared private land (and otherwise unprocessed) using dozer, loader, trucks, dozer again, roller and landscaping. This provides a safe lake final landform as intended.
(iv) A best case scenario for re-establishing flow in Tinda Ck to the World Heritage Area: We estimate 700,000 tonnes of clean fill to cap all holes from existing land cleared land owned by the developer.
The cost would be $2-3M.
2. Peak environment groups The Wilderness Society, NSW National Parks Association, Blue Mountains Conservation Society, Colong Foundation for Wilderness and local neighbours have all written and expressed alarm at the strangulation of water into Tinda Creek catchment in the Wollemi section of the Blue Mountains World Heritage Area due to the sandmining.
Council's expert whose report we have dated May 2007, who we also trust and rely on, namely hydrologist Chris Jewell has advised that if the developer expands according to his s.96 variation he will impact Tinda Ck water flow into the world heritage area by up to 57% [bold added]:
"Although an assessment of the site water balance indicates that it is unlikely that, to date, the quarry has had a significant impact on the water balance of Tinda Creek, as the operation proceeds, evaporative losses from the ponds will increase and the reduction in outflow from the upper catchment to Tinda Creek will become significant. If the site is closed with a water-table window lake remaining, then a long-term reduction of the order of 37 percent of the original outflow from the catchment upstream of the quarry is possible. Losses will be higher if the final landform includes a lake extending across the entire 22ha site." ................

?If the final landform involved a lake occupying the entire 22-ha operational site, as now proposed, then the reduction in outflow of Tinda Creek would be 204 ML/year, or 53 per cent.?

Chris Jewell in correspondence dated 13 October 2008 to us maintains the final landform in the s.96 variation is at least 17 ha based on Birdon/Umwelt?s own final landform diagram, which is up from 11 ha in the EIS/approved plans.

The water loss is therefore likely to be greater than 37% and closer to 53% which is unacceptable. You will also be aware generally of CSIRO report of July 2008 of downward trend rainfall for NSW in the climate change paradigm, which Commissioner Moore relied on late 2008 to apply the precautionary principle in a judgement adverse to Coca Cola Amatil at their Peats Ridge water bottling plant. (We provided that evidence to the Commissioner).
There is a third issue regarding issues of veracity of the sandminer - including deceptive references to the wrong approved plans by their consultant Umwelt - which the court may possibly address as part of the lapsed consent argument. We submit clause 283 of the EP&A Act 2000 Regulation regarding misleading and deceptive conduct may be involved.
In conclusion we invite DECC to play a role as a friend of the court and/or provide expert advice as needed on finding a way forward in this mess that has become the Tinda Creek sandmine impacting a World Heritage Area in a lower rainfall reality.
Yours truly, Tom McLoughlin, legal agent for Neville Diamond.
Attachment: Original written submission to HCC found here, our additions in red typeface:
----- Original Message -----
From: ecology action australia
To: gordon.plath@environment.nsw.gov.au
Cc: terrigal@ ; castlehill@ ; LOP
Sent: Monday, November 10, 2008 7:41 AM
Subject: fyi as mentioned sandmine issue Wollemi Fw: Final part 6 re Tinda Ck Blue Mtns World Heritage before council Tues 11 Nov 2008

Attn Gordon Plath [managing] solicitor/DECC legal branch
My information is that the majority of Hawkesbury City Councillors on the Liberal controlled council will be voting against the expansion of the sandmine tomorrow evening 11 Nov 2008 but you never really know.
Notice CC list - big press, HCC councillors all factions, Peter Garrett's man Ben Pratt, ngo groups, Ian Cohen MP office, council expert Chris Jewell, nsw env minister, local govt minister. And above to the related ministries in the state opposition. No more secrets for this cowboy sandmine unlike the last 20 years of menaces and violence.
Here's hoping the council do the right thing and follow their senior officer's recommendation to refuse the expanded development impacting the Blue Mtns World Heritage area.
Yours truly
Tom McLoughlin, court agent for Neville Diamond.
----- Original Message -----
From: ecology action australia
To: bart.bassett ; barry.calvert; council@hawkesbury ; kevin.conolly@; christine.paine@; bob.porter@; paul.rasmussen@ ; rex.stubbs ; leigh.williams@
Cc: Jackie ; ben.prattEAFed ; chrisJewell ; Ben Cubby SMH ; Kirsty Ruddock EDO ; Keith Muir Colong ; Peter Cooper TWS ; Andrew Cox NPA ; BMCS ; cate faehrmann NSWNCC ; r.chapple@bmwhi.org.au ; Scott Hickie ; bmwhi@bmwhi.org.au ; bmcs@bluemountains.org.au ; stateline ; ian.cohenMPGreen; dp.office@tebbutt; perry.minister ; bensonsDailyTelegraph

Sent: Saturday, November 08, 2008 7:54 AM
Subject: Final part 6 re Tinda Ck Blue Mtns World Heritage before council Tues 11 Nov 2008

The sandmine using between 37% and 53% of Tinda Ck water into the Wollemi World Heritage Area - as climate change bears down on us all - is going before Hawkesbury City Council again this Tuesday 11th Nov 2008. The chief planning officer's report recommends refusal and to issue a notice to cease operation.

Last and final part 6 of this series of evidence about the issue is here:

Previous items in this serial are here:
Tuesday, 28 October 2008 Diamond Diary Part 4: Attacking the messenger, not the vandalism Mood: don't ask, Topic: legal

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

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

6 October 2008 Google Earth reveals illegal drain intercepting Tinda Creek to World Heritage area? Mood: sharp

----- Original Message -----

From: Tara Cameron President Blue Mtns Conservation Society

To: Tom McLoughlin

Sent: Sunday, October 12, 2008 12:11 PM

Subject: Tinda Creek

Dear Tom,

The Blue Mountains Conservation Society has over 1000 members and is extremely interested in developments impacting upon the Greater Blue Mountains World Heritage Area. Hence we are concerned about the Tinda Creek Sandmine in respect to its impact on the Wollemi National Park. We are particularly concerned about the tailing ponds and their capacity to reduce the amount of water to Tinda Creek. Water quality is also a problem that we would focus upon.

The Society will be discussing this issue at our next Management Committee Meeting.

Yours sincerely,

Tara Cameron


Picture: 1996 thankyou card to this writer in 1996 from Leslie Walker objector and former neighbour of the sandminers,whose sheep were mysteriously shot dead and has now left the district.

Posted by editor at 9:06 AM EADT
Updated: Friday, 6 March 2009 10:41 AM EADT
Monday, 2 March 2009
Online legal research update at UNSW with Mr Cool
Topic: legal

6 points of Mandatory Continuing Legal Education. How could I resist, especially with some one else paying.

Actually it sounds like the legal version of accountancy, or maybe weeding, but no it was a very enjoyable hob nobbing with the partner from Turnbull Hill, and the Clayton Utz senior associate or probably partner. As the google graphic shows today, online data bases actually have their lighter moments (a Dr Seus theme shown here but not likely to endure):

We discovered that moi can still mix it with these guys after all those years of activist grovel: The police prosecutor dude from up Grafton way who knew about some of the real bad guys in Underbelly 2 back in the day. The union lawyer taller than Nick Seddon (the formidable contracts lecturer at ANU law school, again back in the day - last usage we promise).

And the cream was our lecturer, hippie zen style Colin Fong complete with nifty ringtail possum hair style. This intrepid guy knows his precedent data bases. Subscription or free source? Even does a bit of open university social capital in Western Sydney. This guy was too cool for law, and yet here he was out of the big firms giving back to the grassroots, well in my case at least.

So there I was 10 minutes late, pumped up by cycling in sub tropical rain, clammy wet shorts and shirt hanging out, clasping change of clothes and bag , sheepishly walking into a room of sharp female lawyers. The backbone of the legal service industry in fact. Talk about gender imbalance. (Which reminds of an old girlfriend now "acting solicitor general of NSW" I notice on one of those mid life nostalgic web surfs - but that's another story: That's what you get for 20 years of public servant grovel - quite an achievement to be sure. Still pondering how one could work for 'them' or something as ephemeral as a mortgage.)

Then one by one the other guys arrived. 5 in succession for the next 2 hours or more. All late and not a blink of shame. Disorganised? I commented to the refugee from CCH reference service:

"What does this say about the blokes?"

"I'm saying nothing" came the very knowing reply.

Perhaps this recent MCLE experience also explains the vivid dream last night turbo charged by fresh air and hard yakka: Attending moot court arriving late, empty room then surrounded by raucous students and referred to as son of the surgeon general - go figure.

Back in reality Colin The Cool got me to ask for consent for the sufficiently anonymous photograph angle above and write this report "in the next week?". Yes, except the schedule got a little misplaced. There's that bloke thing again. So now here it is full of Hawkesbury fresh air to kick it along. I told him I would need to spice it up with some newsy angles like:

  • how judges control which cases get an official report (a PR factor of bias in there?), no doubt of interest to the right wing baiters of plaintiff lawyers and so called activist/undemocratic judges as per USA experience. Reports involving sleeping judges, or perverse outcomes get censored as "unreported"? Combine this with our direct knowledge of the assiduous Media Monitors account with the NSW Judiciary and you know this 3rd arm of the executive care about their PR. On the other hand the monitoring helps prevent breaches of sub judice;
  • Good online research by the Big Media and journalists generally should help better deal with the Right to Know agenda explained here recently: Suffocating in a state of secrecy | The Australian 14 Feb 2009;
  • how some companies hide their presence in law reports via use of an agent's name (tsk tsk Coca Cola Amatil, Land & Environment Court, just look for David Kettle Consulting Land & Enviornment Court of New South Wales);
  • saucy law reports covering Errol Flynn's sex life, "its all there" apparently;
  • topical legislation this month to give more property rights to same sex couples etc. Must be the same legislation front page of the Sunday Telegraph yesterday about property claims for mistresses. A big topic at News Corporation it seems;
  • that someone can make alot of money doing a progressive update of Family Law precedents because a comprehensive guide doesn't really exist.

One exercise task involved finding the technically accurate name of the recent federal government Stimulus Package: "Which one?" was my smart *rse question, no. 1 or no. 2? Funny that I was the only one cued into current affairs who actually noticed the ambiguity. " It doesn't matter" - which was true for the exercise involved - came the unintentionally profound response from Mr Cool. He meant package no. 1 but indeed neither according to orthodox economic analysis will make a jot of difference to the sad sorry synchronous global economic downturn. Thrift people, thrift. Get with the programme.

Other useful tips we noted in addition to the text book "A practical guide to legal research" Milne, Tucker Lawbook 2008, and loose leaf study notes explaining "Boolean" and "proximity operators":

  • Pandora held by the National Library keeps a record of old websites:
  • Google can't search some data bases like phone numbers, you have to go to the online White Pages/Yellow Pages, then search
  • There is an "invisible web" of other data for those who know how
  • Austlii is a critical tool not least "advanced search" of discrete data bases, "Noteup" for referencing by other reported cases, along with Comlaw and legislation.gov.nsw.au for status of legislation, and then parlimentary websites for status of bills.
  • Austlii are fibbing (lawyers fib?) when they claim they reproduce the CLR's (Commonwealth Law Reports to you common folk) which carry the High Court of Australia historical case reports. They are similar but not the same because they do not carry the case summaries apparently as per the old CLRs. Also in this modern age the court publishes their own reports in what's knows as "media neutral" form, that is undiluted by any publishing house. Gone are the days when a judge could say "I can't hear you" for quoting the unauthorised case report using say the ALJR instead of the CLR publishing house. It's all online direct from the HCA and other courts.
  • If you are in the money there are subscription legal data bases Lexis Nexis, CCH and Thompson, Law Book online (phew).
  • As well as industry journals like Lawyers Weekly which may be free. Similarly The Australian carries google searchable legal industry articles every Friday in their press. As does the Australian Financial Review which is overpriced both online and press.

And Cool also took us back to the first "bulletin board" case of the delightfully named Justice Ipp in 1994 in Western Australia, which was about the internet before it was called the internet: It was only because librarians get together and hobnob that it was indexed under internet and is accessible to online precedent searches today:

That WA case Rindos v Hardwick has resonance today and has influenced thinking world wide: Take this 1994 article extracted onto the web here:

This article is reprinted with permission from the June 13, 1994 issue
of The Nation [USA] magazine. (c) 1994 The Nation Company, Inc.....
Individuals, however, are still responsible for their own words
communicated through cyberspace. The first trial for libel by
e-mail--held in Australia--concluded with a substantial fine being
imposed on the offending e-mailer. In that case, an anthropologist
fired by the University of Western Australia sued another
anthropologist, claiming he had been defamed in a computer bulletin
board message. The case went to the West Australian Supreme Court,
which ruled in April that libel in cyberspace is actionable. David
Rindos, who has a doctorate from Cornell University, was dismissed
last June because of insufficient productivity. A supporter of Rindos
posted news of the firing on the DIALx science anthropology
international computer bulletin board; many colleagues e-mailed their
support for him, but Gil Hardwick, an anthropologist working in the
field in Western Australia, posted a message criticizing Rindos.
According to Justice David Ipp, it declared that Rindos's career was
based not on academic achievement "but on his ability to berate and
bully all and sundry." The message also contained "allegations of
pedophilia," in the words of Rindos's lawyer, and falsely implied that
sexual misconduct had some bearing on his firing by the university. 

Twenty-three thousand people around the world have access to the
bulletin board on which Mr. Hardwick's message appeared, and most of
them are professional anthropologists and anthropology students. "The
defamation caused serious harm to Dr. Rindos's personal and
professional reputation," Justice Ipp declared. "The publication of
these remarks will make it more difficult for him to obtain
appropriate employment.... The damages award must compensate him for
all these matters and vindicate his reputation to the public."

Although it's easier to win a libel case in Australia than in the
United States, the same circumstances here would produce the same
result, according to Martin Garbus, an attorney and a libel law
authority. The Internet is not a free space when it comes to libel; it
is subject to the same libel law as any publication.

In the Australian case, the libelous message had been posted on a
bulletin board available to thousands; but even individual email
messages can cause legal problems. The day is not too distant when an
e-mailer will find himself or herself in court, perhaps in an
employment discrimination suit, for a statement uttered only in a
single e-mail message. E-mail messages, like other written
communications, are discoverable in legal proceedings, according to
William Parker, director of the office of academic computing at the
University of California, Irvine--they can be subpoenaed and presented
as evidence in court. And that's only the beginning: It turns out that
your old e-mail is not necessarily gone just because you deleted it.
At my campus of the University of California, and probably at most
universities as well as private corporations, backup copies of most
e-mail messages are retained on tape as part of the nightly backup of
the main computer. Ollie North was unable to destroy evidence of the
Iran/contra cover-up because the White House maintained a backup copy
of the e-mail system on which he had plotted his crimes. Erasing his
hard drive and shredding his paper copies didn't help. Most e-mailers
are as vulnerable today as North was. Parker's advice: "You should not
say anything via e-mail that you would not say publicly."

Which takes us to our next MCLE outing in mid March - Media Law and Defamation. Can't wait.

Posted by editor at 5:26 AM EADT
Updated: Monday, 2 March 2009 7:32 AM EADT
Tuesday, 9 December 2008
JBD condemns offensive student website as Dick Pratt pleads not guilty to business crimes
Mood:  not sure
Topic: legal

We are writing to the NSW Jewish Board of Deputies to ask some questions about the interesting timing of the scandal story running front of the Sydney broadsheet today. References behind the following questions to follow asap:

1. Are you aware Dick Pratt pleaded guilty to civil breaches of the corporations law last year and has now been charged with criminal offences?:

22 Dec 2005 PM - Pratt case crucial for ACCC

Crikey - $40 million = small beer for Australia's third richest ... 10 Oct 2007 ... Pratt the winner: $36 million just a drop in the bucket · Dick Pratt takes money from ordinary Aussies -- so where is the uproar? ...

Crikey - Pratt’s insults not quite disguised as an apology - Pratt ... 9 Oct 2007 ... Briefly Business: iPod index, Pratt pleads sainthood, eBay ... The question raised by Dick Pratt’s letter to Visy customers: is it primarily ...

It's time we gave our watchdogs fangs | The Australian 15 Dec 2007

Crikey - Could billionaire Dick Pratt really go to jail? - Could ...20 Jun 2008

2. Are you aware Pratt pleaded not guilty to the criminal offences today as per abc radio news we heard earlier?


Richard Pratt has pleaded not guilty, (ABC: Timothy Marshall)

3. Are you aware that Jewish members of the business community in Melbourne in particular were concerned earlier this year that ACCC's failure to drop the criminal charges even after a $40 million fine for civil breaches might be motivated by discrimination?

24 June 2008 Melbourne establishment comes out boxing | smh.com.au By Ian Verrender

Spare a thought for poor old Dick Pratt. It's difficult to imagine what's worse: facing criminal charges of lying under oath or having John Elliott for ...

"....It may have escaped the minds of certain Bleak City academics, who were scathing of the Australian Competition and Consumer Commission boss, Graeme Samuel, but Pratt already would be behind bars had his offences been committed in the United States or most other OECD countries. Australia is one of the few Western countries that does not impose a mandatory jail sentence for market rigging.

Samuel is right to pursue Pratt to the limit of the law. Failure to do so would be a travesty of justice and would reflect badly on Samuel, just as the Australian Securities and Investments Commission's soft treatment of Steve Vizard rightly earned it the scorn of the wider community.

But the cheer squad has been marshalled, with an avalanche of letters to newspapers bemoaning the harsh treatment being meted out Pratt. ..."

4. Do you think the Scots' students allegedly involved in the offensive website might have got prejudiced attitudes from their business parents here in Sydney?

Sydney Morning Herald story here:

Student Facebook scandal

11:47am | Principals of elite Sydney schools vow to deal with pupils who posted anti-Semitic slurs on Facebook. | Student shame

5. Is billionaire business man Dick Pratt a donor to the JBD or related groups in the past? How much? 

6. Is it a coincidence that these two stories are running today namely Scot's College website and Dick Pratt not guilty plea to criminal breaches of the corporations law?

7. Is the JBD or similar/related groups innocently seeking to make the point of prejudice existing against the Jewish community in some parts of the upper echeleons of society, as expressed by their adolescent children? That indeed "racism is unacceptable"


8. Did the NSW JBD or related groups 'get the story up' regarding (alleged) Scots student scandal website? 

9. Is there any intention of the JBD or other groups that you may know of to influence the public's view of the Pratt criminal case, or indeed the court itself?

10. Are you aware that the courts receive clips of articles of all related matters in the press via such service providers as Media Monitors? Indeed on the flipside does the JBD continue to receive clippings from MM as they did in 1999-2001?


On a personal note SAM's editor loves Jewish folks and socialises and supports and indeed works for several of such in Sydney society.


Postscript #1 13 December 2008

 There is an extra aspect to the big media coverage that we didn't appreciate at the time of writing this above. We feel obliged both for fairness and balance to add: Either geniunely or again as a PR gambit or both, billionaire Mr Pratt has been presented as suffering prostrate cancer and having a spine operation as well related to the treatment. This appeared on crikey ezine about 2 weeks back we recall, and again in the press early this week - that we read late this week:

9 December 2008 Ill health throws doubt on Dick Pratt case | The Australian

All of this is in the balance along with Alan Bond getting an easier run because of his health when he crashed and went to gaol for 4 years. We will post separately on this transcript from Denton's Enough Rope interview with Bond.

Here's a tough appraisal of Dick Pratt:

8 Oct 2008 Crikey - Pratt 2: proof that the rich are indeed different - Pratt ...

12 Dec 2008 Richard Pratt denied cartel scam to John Howard | The Australian

Posted by editor at 11:54 AM EADT
Updated: Saturday, 13 December 2008 9:22 AM EADT
Wednesday, 26 November 2008
Tony Stewart MP legal issues discussed
Mood:  chatty
Topic: legal

Based on the Herald story today some initial comments, preliminary legal advice even. The Herald story is here:

26 Nov 2008 Sacked minister could be expelled - National - smh.com.au

Prof George Williams is on ABC just after 8.30 in a brief Q&A this morning and we think we can add to that also. 

1. There is some precedent of a SA ALP MP Ralph Clarke who sued over preselection rorting back in 2005

 Labor Seats for Sale, http://sunday.ninemsn.com.au/sunday/cover_stories/transcript_369.asp

 He won but was booted out of the ALP eventually, and lost preselection regardless. (He later also initiated defamation proceedings against that state's ALP AG but that's another chapter in 2005:  The World Today - Former Labor MP tells of SA Govt corruption.)

The significance of the case was that the general law applies to party rules because they use public funds to sustain themselves, hence the law of judicial review and administrative law applies e.g. natural justice to be heard, relevant and irrelevant factors, bias, improper purpose (and see no.4 below) etc etc

2. As George notes even if he wins he may still have the reconsidered decision against him anyway in a replay of the decision making process. So this is all about saving face.

3. Two matters I haven't considered - will taxpayers pay the legal costs? And would expulsion be contempt of court? George stated it would depend on timing and efficacy of that expulsion decision.

4. But one thing we add building on point 1 above in the Clarke case, the ALP disciplinary rules shouldn't be allowed (and question is this good law) to use their membership contract (incorporating party rules for explusion eg rule not sue another ALP member in the SMH story) to contract out of the general administrative law. It is a general principle of contract law you can't have terms of a contract that break the general law, invalid for illegality. It's a fairly small step from there to say terms of a contract (eg ALP membership) have to be read down so they don't promote breach of the general law: In this case threat of expulsion for seeking the benefit of administrative law. That surely would be an improper purpose again under administrative law picking up George's point at 3 above about efficacy of an explusion.

In conclusion fact is the ALP like all parties are publicly funded and to allow explusion for seeking to enforce administrative law of the land that applies to the ALP and all parties, would be to victimise a theoretical whistleblower. As happened with Ralph Clarke in SA and was a travesty of justice.


Having said all that - we think Tony Stewart after 13 years as a backbencher has run his race and should withdraw and save the taxpayers the legal fees, even if he were to win (which he well may).

Posted by editor at 8:39 AM EADT
Updated: Wednesday, 26 November 2008 9:43 AM EADT

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