Mood: accident prone
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.
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.]