Kenneth Raymond Buchanan
When I lived in Whittlesea, Ken Buchanan was a well-respected local identity. He was a Justice of the Peace who sat on the Bench at the Whittlesea Magistrates Court. He was the President of the Shire of Whittlesea and was well known for his community work and he was a recipient of the Queens Medal. He owned a chain of electrical retails stores and was a property developer. As I now know, he was also a crook. He was one of the founding directors of the timeshare company, Woodleigh Height Resort Developments Pty Ltd.
****END******
Woodleigh Heights
The Woodleigh Heights subdivision is now Woodleigh Lake Estate and Kyneton Bushland Resort.
A Nasty Incident
In 1985 I went to Woodleigh Heights in Kyneton with my wife and young daughter to re-erect 'For Sale' signs at the front entrance of the subdivision after they had been knocked over. While we were there, a couple of the directors of the timeshare company, WHRD, turned up and demanded that we stop erecting the signs. When I refused, they sent for the manager of the timeshare resort, who arrived in the resort's fire truck. He was instructed to knock the signs down. My wife went and stood in front of one of the signs. The manager drove the fire truck at the sign but my wife stood her ground and refused to move. My seven-year-old daughter looked on in terror. I went to the nearest public phone and called the police. When the police arrived, they threatened to lay charges if the signs were removed. My daughter, as an adult, still has nightmares about this nasty incident.
A "reticulated water supply"
A reticulated water supply is a water supply which is provided through a network of pipes. In the case of Woodleigh Heights, the land was situated part inside and part outside the Waterworks District of the Water Authority and could not be provided with water from the Water Authority except with the approval of the Governor in Council. Under the then Shire of Kyneton Planning Policy/Scheme the land was in an area where subdivision of land into lots of less than three acres was prohibited unless the land was serviced by a "reticulated water supply" so the Woodleigh Heights subdivision which proposed lots of about two acres in size was effectively prohibited.
In order to overcome this, the submission which was put to the Council included a proposal that the Woodleigh Heights subdivision provide its own private "reticulated water supply" consisting of a large lake, header tanks and a reticulation system. The subdivision was approved on this specific basis and planning permit 2191 was issued with this specific condition. Condition 8 required that the subdivision be completed in accord with the plans and submissions which accompanied the application.
Under that submission "potable" drinking and kitchen water was to be provided by rainwater tanks. The "non-potable" reticulated water supply was for "non-domestic" usage.
This private "reticulated" water supply was never completed. The lake and tanks were there for all to see but the reticulation system did not get installed.
The scheme of the conspiracy by the Council and Water Authority was to conceal the fact that this private "reticulated water supply" had been approved by the Council for the purpose of the planning scheme/policy, and to falsely represent that the water supply provided by the Water Authority was the "reticulated water supply" required by the Council's planning policy/scheme. They concealed these things by:
- concealing the submission which formed part of the planning application.
- falsely representing that the submission was an oral submission
- falsely representing that the 1978 was merely a private water system which did not constitute a "reticulated water supply" for the purpose of grant of building permits.
My problem, my quest - Woodleigh Heights
When the conspiracy first raised its ugly head in 1983, I knew nothing of the law. All I had was a very strong sense of right and wrong and common decency. I did not think it possible that this timeshare company could control the water supply to my land. However I was led to believe that the private "reticulated water supply" was "merely" a private supply with no force of law, and that the water supply provided by the Water Authority was the only legitimate or approved "reticulated water supply".
After reading the law in 1987, I understood that the Water Supply agreement was unlawful in every respect. A couple of years later I learned about the shenanigans with the water districts and that the Woodleigh Heights land was in the Waterworks District but outside the Urban District of the Water Authority. This meant the Water Authority was entitled to supply or refuse to supply any owner of land it wished and could not be forced to supply water to the body corporate.
By this time I realised that I was dealing with two bunches of crooks. Buchanan and PS&R were plainly crooks, but each and every Councillor and Water Authority member was well aware of the "wrongness" of what was occurring and did nothing but allow it to occur.
None of this knowledge helped me get water to my land. On the face of it, it appeared that my Woodleigh Heights land was worthless when I purchased it however, while this fitted with my opinion of Buchanan, I did not believe this to be so.
My task was to find evidence that my Woodleigh Heights land in fact had water when I purchased it in 1979.
After learning the law, I requested access to the relevant files of the Council and Water Authority however this was refused on the grounds that they were not subject to freedom of information laws. I was, however, entitled at law to read their minutes, and I did so for the entire period 1979 until about 1987 when I was doing the research.
At the Planning Appeals Tribunal hearing in 1988, I learned that the Council had approved a private "reticulated water supply" and that this private water supply was a condition of planning permit 2191. My task then became to learn the full details of that approval. I knew what I was after but could not get to it.
In the meantime, another task was to get someone in a position of authority to accede to the fact that the "Water Supply Agreement" was unlawful. If I could succeed on that point, then the Water Authority would have been forced to transfer the Water Supply Agreement to the body corporate and the fraud would have been at an end. The lawyers, Ian Lonie of Maddocks, Major General Garde AO RFD QC and John Norman Price represented otherwise with the result that the Ministerial inquiries and the courts were misled.
I was a lone voice in the wilderness speaking the truth against the suited, bewigged and begowned establishment.
Estoppel
The allegation by me that the 1978 water supply was a condition of the planning permit had been raised in the 1995 Woodleigh Heights proceeding, and the Council and Water Authority had not contested this at that time, but in fact specifically admitted that I had an entitlement to that 1978 water supply, with no reference to "potable" or "non-potable". In addition, the Council and Water Authority had specifically said, in a written submission to the Planning Appeals Tribunal, that the 1978 water supply was a condition of the initial planning permit. Consequently the Council and Water Authority were prevented by law from asserting any different before Justice Osborn. Justice Osborn raised this without notice and for the purpose of finding against me in the face of the law and the facts. [Anshun and general estoppel]
Appeal Book -- How many trees died for this?
I appealed to the Court of Appeal. For the appeal I was required to prepare an "Appeal Book". The Appeal Book is the documents relevant to the appeal bound into a book. The Appeal Book proposed by the Council and Water Authority consisted of in excess of 3000 pages bound into 11 volumes of some 300 pages each and I was required to prepare 11 copies of this Appeal Book amounting to some 35,000 pages. The fundamental reason for the appeal in the first place was that the so called "causes of action" had been misrepresented to Master Efthim and Justice Osborn had manufactured his own.
My hope at that time was the resting on the rules of the Court and in particular practice note number 2 of 1995 which was that where there was a litigant in person (as I was) then the lawyers for the other side were required to prepare a summary of the proceeding and a summary of the facts. This was exceedingly important from my point of view because such a summary, if honestly prepared, would expose the deception before Master Efthim and also the conduct of Justice Osborn and if not honestly prepared I would be iin a position to demonstrate that fact before the appeal. [I had said as much in my costs submission to Osborn, see paragraph 24, complete submission here]
A directions hearing was held before Master Lansdowne to settled the content and extent of the Appeal Book, at this hearing I made application to the Court of Appeal that the Appeal Book be limited to documents relevant to the "causes of action" set out in the Statement of Claim and that the lawyers be required to complete the summary of proceedings and facts before settling the content of the Appeal Book.
The lawyers then represented to Master Lansdowne that they could not agree with me as to what constituted the "facts". Little wonder they could not agree with me! They had completely misrepresented the facts and "causes of action" to Master Efthim and obtained a false Judgment. Then they had also misrepresented the "causes of action" to Justice Osborn and effectively admitted that they did not even know what the "causes of action" were. The lawyers did not tell Master Lansdowne that they were relying on misrepresenting the facts [see Lying lawyers]. They represented me, a non-lawyer representing himself, to be well... a serial litigant, a troublemaker who did not know what was what.
Master Lansdowne refused my application to settle such a fundamental point as the facts and "causes of action" and the Appeal Book(s) remained at a total of about 35,000 pages. If a lawyer had prepared this document instead of me doing it myself, at $1.50 per page this would amount to $52,500 for photocopying alone. (the lawyers should go to their local chemist shop or newsagent, copies are only 30 or 40 cents there)
The "Book of Pleadings"
The "Book of Pleadings" is a document compiled by me in about 1991 during the course of the 1988 Tylden Rd proceeding in the County Court. It contained an extensive summary of things known, assumed and hypothesised from the available evidence. It was compiled for the specific purpose of obtaining legal advice from my solicitors, Nevile & Co and in particular my barrister, Mr. Francis Tiernan. Despite the representations of Steven Mark Edward this document was never a Court document or a discovered document or a discoverable document and this is manifest from the document itself. [front cover here, complete document here]
The Amended Statement of Claim of May 1991 in the 1988 Tylden Rd proceeding was prepared by Mr. Tiernan from the things known at that time and it was prepared subsequent to and with regard to the things known and hypothesised. Both the "Book of Pleadings" and the Amended Statement of Claim in the 1988 proceeding clearly demonstrate that I held a belief that a lawful Notice of Requirement was served.
Mr. Steven Mark Edward obtained this document improperly and the lawyers for the Council and Water Authority used it to mislead Master Efthim by leading him to wrongly believe that I had knowledge of avoidance of s.9 of the Sale of Land Act when I compiled the "Book of Pleadings".
The "Book of Pleadings" demonstrates that the "unlawful" plans did not facilitate avoidance of s.9 of the Sale of Land Act
Buchanan and his Lawyer contrived the "unlawful" series of plans for the purpose of avoiding section 9 of the Sale of Land Act 1962. They then made at least two sales in specific breach of s.9 of the Sale of Land Act.
My 1983 solicitor Mr. Danny Ginsburgh had advised me that Buchanan had manipulated the Plans of Subdivision to avoid section 9 of the Sale of Land Act 1962 for the purpose of enabling him to sell land before he was lawfully entitled to. I knew that the "plans" were "unlawful" from that time.
In 1987, I read the legislation for myself and learned that the "contrived" plans did not facilitate avoidance of section 9 at all. The understanding of Buchanan and his lawyer of s.9 was what I now call the "simplistic view" of section 9.
At the time of compiling the "Book of Pleadings", I was thoroughly aware, from a simple reading of the acts, that contrived 2-lot plans did not and could not facilitate avoidance of section 9 at all and this is expressly stated in the "Book of Pleadings".
At the page numbered 3, the Book of Pleadings contains a copy of s.9 of the Sale of Land Act 1962. This copy has the words "or where in respect of any land such a notice is required to be given" underlined. [see bottom of page]. This clearly sets out and emphasises that section 9 related to any subdivision where the intention was to subdivide into three or more allotments.
Buchanan's intention was manifestly to subdivide into 18 lots. Section 9 applied to him no matter how many plans he lodged or how many lots were on the plans.
At the page numbered 8, the Book of Pleadings clearly set out that Buchanan was mistaken and instead of exploiting a loophole in the law he had in fact breached the law. This page expressly set out the reason for this as being that Buchanan's intention was an 18-lot subdivision.
The "Book of Pleadings" therefore overtly states that the "contrived" plans did not facilitate avoidance of the law and I knew it then. These plans were nothing more than plans which did not show all allotments and roads, they are better described as "naughty" plans than "unlawful".
The "contrived" series of plans did nothing except demonstrate Buchanan and his solicitor's ignorance. More recently they demonstrate either abject, gross, ignorance, neglect, or the more probable deliberate deception by Delany, Ahern, Dixon, Partridge, Garde, Burchell and Edward. [see Efthim page]
They also demonstrate the abject carelessness and neglect of John Middleton and Neil Adams [see Middleton page]
The lawyers for the Council and Water Authority conspired to mislead Master Efthim. The law and explicit explanation were squarely and explicitly before them in the "Book of Pleadings" [see also lying lawyers].
Justice Osborn's overt omissions from the "Book of Pleadings"
Justice Osborn fabricated his Reasons to show that I knew that a lawful Notice of Requirement had not been served. He purported to transcribe extracts from the "Book of Pleadings" to demonstrate this alleged finding by him. The paragraphs transcribed by him did not show any such thing. These are some of the paragraphs which Osborn omitted to transcribe. These omitted paragraphs demonstrate a belief that a lawful Notice of Requirement had been served and a belief that a lawful obligation had been imposed on Buchanan and then lifted.
The "Book of Pleadings", amongst other things, says:
- “a ‘Notice of Requirement’ had been served therefore:-” (at red star)
This is an unequivocal statement as to my belief that ‘a’ Notice of Requirement had been served.
- “my Guarantee was to be used to let Buchanan off the hook so to speak” (at red star)
This is a reference to a belief that the Council ‘lifted’ the Requirement on receipt of my guarantee and thereby “let Buchanan off the hook”, the “hook” being the duty imposed on Buchanan by the lawful “requirement” then believed to exist.
- “The Council and Water Trust released Buchanan from his lawful obligation ….”
A further reference as in 1 and 2 above, that I had a belief as to a “lawful obligation” pursuant to a lawful requirement.
- “….. I now know the Council released Buchanan from his obligation … “ (at green star)
This is a further reference to a belief that Buchanan was released from the lawful obligation imposed by a lawful requirement.
- “The Council however always intended that the Requirements were ‘secretly’ still on foot
A requirement cannot be ‘secretly still on foot’ without having first been on foot. The plural “Requirements” is a reference to the fact that there were two requirements, one for roads and one for water, and not multiple notices of requirement. The "secretly still on foot" is a reference to the fact that they retained and called upon my guarantees after "lifting" the requirement and thereby they were "secretly still on foot".
- “At all times Porter knew ……. the Council requirements had been lifted” (at red star)
A requirement cannot be “lifted” without having first been imposed. This a further reference to a belief that a lawful requirement was on foot before being “lifted” (Note:- "Porter" was the Shire Secretary)
- "...... Porter knew that as the Requirement had been lifted Buchanan was no longer responsible ....." (at green star)
A requirement cannot be “lifted” without having first been imposed and Buchanan could not be "no longer responsible" without first having been responsible.
- "At the time of lifting the Requirement......" (at first X)
A requirement cannot be lifted without first having been imposed.
- "My Guarantee therefore was immediately at risk" (at second X)
Because the Requirement had been lifted.
- "The Water Board accepted my Guarantee for the purpose of letting Buchanan off the hook so to speak" (at third X)
This is a reference to a belief that the Council ‘lifted’ the Requirement on receipt of my guarantee and thereby “let Buchanan off the hook”, the “hook” being the duty imposed on Buchanan by the lawful “requirement” then believed to exist
[see also Osborn and the "Book of Pleadings" and Osborn prejudice v truth]
The "Black Book"
The so-called "Black Book" is a loose leaf folder containing copies of documents discovered (made available) by the Council and Water Authority during the 1988 Tylden Rd proceeding in the County Court. On the second day of trial the Council and Water Authority offered $40,000 in settlement of the proceeding. This represented the return of the money which the Council and Water Authority had unlawfully taken from me pursuant to the bank guarantees. This was accepted on the advice of my then barrister Mr. Francis Tiernan whom I held and continue to hold in high regard. When settlement was accepted, Mr. Tiernan and I sat outside the Court with the barrister for the Council and Water Authority and drafted the Terms of Settlement. When this process was complete, the barrister for the Council and Water Authority left the "Black Book" behind. I took it home with me and essentially forgot about it because I thought the Tylden Rd matters to be at an end.
The "Black Book" in fact contains fabricated documents intended to deceive and to conceal the fact of the perjury in the Magistrates Court and Supreme Court and also to conceal the fact that the Council and Water Authority's admissions that the Notice of Requirement had been issued were false.
Council's complicity
It was impossible to fix the Council with knowledge of the intended effect of the "unlawful" plans because the Council had sealed the plans with an endorsement pursuant to s.569E(3)(a) of the Local Government Act and thereby prevented the Registrar of Titles from approving the plans and issuing Titles. The fact therefore was that, while the plans were intended to facilitated sales in breach of s.9, the sales could not be realised or settled. The evidence therefore was that the Council was not complicit in the scheme to avoid the mistaken or simplistic view of s.9 however there is vast evidence for their complicity in avoiding the "effect" of s.9 which is what the 2005 proceeding was all about.
Ms. Michelle Dixon's Affidavit dated 28th October 2005 - the omitted paragraphs
Ms Dixon omits paragraphs 53(c)(i), 53(c)(i)(1) to (6), 53(c)(ii), 53(c)(ii)(1) to 5, 53(d), 53(e), 53(f)(i) to 53(f)(iii), 53(g). 53(g)(i), to 53(g)(xi) and 53(i) of my affidavit for a total of 31 paragraphs and subparagraphs.
[see lying lawyers page]
Delany and Ahern continue to assert
[continued from the Outline of Submissions for the Council on the lying lawyers page]
At paragraph 54, the lawyers say that that it is apparent from my affidavit:
"that the critical document from the black folder which led Mr. Thompson to reach the conclusions which now underpin the allegations..... ... was the copy of the complete version of the plans for the industrial allotments. No other documents are mentioned .... as assisting ....."
Then at paragraph 55, the lawyers say:
"The complete version of the plans .... is considered by Mr. Thompson to be the critical piece of the puzzle which enabled Mr. Thompson to comprehend ....."
Then at paragraph 64, they say:
".... June 1991, after the ... ... critical document was handed to Mr. Thompson .... there could not be and was no intentional concealment thereafter.. .. "
The lawyers then repeat these things at their paragraphs 68, 69 and 70 where they repeat "critical document", "critical piece of the puzzle" etc. Then at paragraph 71 to 77 they essentially repeat the things set out in paragraphs 5 to 12 of Ms. Dixon's affidavit to demonstrate that the complete industrial plan was given to me during the 1988 proceeding.
The notion of "critical documents"
The lawyers Ms. Michelle Elizabeth Dixon of Maddocks, Mr. J. Delany S.C. and barrister Mr. G. Ahern manufactured the notion of the "critical document" it was a fabrication which became a "true lie" [see Lying Lawyers]
The lawyers told Master Efthim that complete copies of industrial plans were "critical documents" which led to the present proceeding. On their misrepresentations, the "critical documents" were evidence of "unlawful" plans which facilitated avoidance of section 9 of the Sale of Land Act. The "causes of action" however were set out in the Amended Statement of Claim and in my affidavit and had nothing to do with plans of subdivision [details here] and the simple fact is that there is no document either existing or capable of existing which can provide evidence that the unlawful 2-lot plans facititated avoidance of section 9. It is simply impossible to avoid section 9.
The notion of "critical document" was simply a further fabrication by the lying lawyers.
Let's look at the so-called critical documents here. Certainly they are evidence of 2-lot "unlawful" plans, no mistake, but as I have said "unlawful" plans and "unlawful" sealing per se are evidence of nothing and certainly do not and cannot cause loss and damage. They were however evidence of the fabricated pseudo "cause of action" manufactured by the lawyers.
These so-called critical documents manifestly contain no evidence whatsoever of the true "causes of action", or any "cause of action" at all, in relation to either Tylden Rd or Woodleigh Heights. They certainly do not demonstrate or disclose or lead to a belief that the Notice of Requirement related to the 18-lot plan was never served.
The lawyers spent a great deal of time and effort on the false and misleading notion that the complete industrial plans were "critical documents" that "led to this matter being further litigated" and further saying that my affidavit said as much.
The facts however are that my affidavit did not say or imply any such thing: [my complete affidavit here]
At paragraph 50), my affidavit says:
Prior to August 2000, "...on the one hand I had proof that ... that at law a reticulated water supply was required to be present in 1979 ... on the other hand I had been shown a reticulation plan in the Practice Court which showed that the primary water main was laid in 1982 ... I could not reconcile the two competing propositions"; and
"I firmly believed that a fraud had been perpetrated against me ... I could not say or demonstrate what the fraud was or who was responsible for it."
So, it is clear that the "fraud" was exercising my mind, but I couldn't yet say how it occurred. This frame of mind is also demonstrated by the letter which I sent to the lawyers for the Council and Water Authority at the end of the 1995 Woodleigh Heights proceeding wherein I advised them that I would still pursue the fraud. [see here]
The specific thing which was exercising my mind was that the plans had been sealed, yet the water supply had not been completed as required by law, but I could not yet fit this together.
At paragraph 53b), my affidavit says:
"Upon examining the documents ...... became apparent there were two versions .... complete versions and clipped versions...."; and
"I recognised the clipped versions as being the same ... evidence ... Magistrates Court ... Supreme Court...."; and
"clipped versions ..... omit the identifying number ....."
So, it was only the comparison between the complete plans and the plans incomplete plans with missing reference numbers that led me to wonder if they had been deliberately "clipped" for a purpose. But I could hardly go to court and say "Your Honour these plans don't have an identifying number and I have suffered great loss as a result". In addition my affidavit says that I recognised these clipped plans as being the same as those given in evidence in the Magistrates Court. Plainly I could not recognise this without first having reviewed the Magistrates Court documents.
On any reading the of my affidavit the "complete plans" were of exactly equal importance as the "clipped" plans and the recognition that they were the same as those given in evidence in the Magistrates Court was important.
My affidavit goes on to say, at paragraphs 53c)i) and 53c)ii), what evidence was provided in the Magistrates Court. My affidavit then says at paragraph 53d):
"Upon further examination and close reading of the documents it became apparent that the Notice of Requirement admitted into evidence in the Magistrates Court and in the Supreme Court and which was discovered in the County Court contained the reference number 79305/G which was sequentially similar to the number on the non clipped version...."
So, from the discovery process set out in my affidavit, so far we have:
- I knew the Woodleigh Heights plans had been sealed but the water supply had not been completed.
- I had looked at the Magistrates Court documents.
- I examined the "Black Book" and found clipped and unclipped versions.
- I recognised that the "clipped" versions did not have identifying numbers at the bottom.
- I then considered the evidence given in the Magistrates and Supreme Courts.
- I then recognised that the Notice of Requirement contained the reference number 79305/G
- I then noticed that this number was sequentially similar to the number on the bottom of the complete plans.
By this point I have considered hundreds of documents, and the oral evidence in the Magistrates Court, the Supreme Court and the County Court and I still don't have any "cause of action" let alone the "cause of action" later defined in my affidavit and in the Amended Statement of Claim.
The so called "critical documents" (the complete plans) together with the incomplete plans were nothing more than part of a beginning of an inkling of an idea, that the plans may have been clipped for a purpose. My affidavit simply does not say or imply the things said of it by the lawyers and Master Efthim, namely that the "complete plans" were the "critical documents".
My affidavit then goes on to say, amongst other things, at paragraph 53e) that I was able to deduce that the Notice of Requirement tendered in evidence (in the Magistrates and Supreme Courts) in fact related to one of the series of "contrived" plans and not the 18-lot plan as represented by the Council in the Magistrates Court.
This deduction process was the result of numerous things described in discovering the root of the fraud.
The notion that the complete plans were a "critical document" was a complete fabrication by the lawyers. This fabrication however was necessary to their strategy which I have set out on the Lying Lawyers page.
The fact is that there is no document in the entire world or which is capable of existing at all which can provide evidence of the pseudo "right of action" put by Dixon, Delany and Ahern. [see Lying Lawyers]
Ms. Dixon and Messrs Delany and Ahern, by their submissions, comprehensively misled Master Efthim and Master Efthim's Reasons show that he swallowed them hook, line and sinker. [see the Efthim home page]
Paragraphs 4, 7 and 20 Amended Statement of Claim 1988 Tylden Rd proceeding.
- At paragraph 4 - In February and March KRB ... lodged .... (a) Notice ..... dated 12th February 1980 and (b) 4 Notices each dated 4 March 1980.
- At paragraph 7 - On or about 20 February 1980 the Council served a Notice of Requirement .... requiring him:
- (a) to construct specified works .......
- (b) to give a statement saying that an agreement had been made for the provision of water.
- At paragraph 20 - In the premise ..... the Council was not entitled to retain or call upon the bank guarantees because:
- (a) it failed to comply with the provisions of s.569 .....
- (i) there was no or no proper notices ......
- (ii) the plans of subdivision sealed .... contravened
the law...
- .... did not show all allotments...
- .... did not show all roads...
- (iii) the Council did not serve any notices of requirement ....
- (iv) the Council did not retain copies of the purported requirements.....
- (v) the requirement had been withdrawn
- (vi) in contravention of the law the Council told the Registrar of Titles the requirements had been complied with
- (b) there was no other valid ground .... which the Council could hold/call upon the bank guarantee.
- (a) it failed to comply with the provisions of s.569 .....
In their joint defence, amended defence, re-amended defence and further re-amended defence the Council and Water Authority each admitted to paragraph 7 of the Statements of Claim. Each of these eight admissions constitutes an overt re-assertion of the evidence given to the Magistrate and Justice Kaye that the Notice of Requirement related to the 18-lot plan had been served.
At the time of the 1988 proceeding, the Council and its lawyers clearly understood paragraph 7 in both the Statement of Claim and the Amended Statement of Claim to be what it literally said. That is, that a Notice of Requirement was served. They did not construe either paragraph 7 alone or paragraph 7 & 20 together to allege that no lawful Notice of Requirement had been served at all. [also see the affidavit of Ms Michelle Elizabeth Dixon of Maddocks where she specifically swears that paragraph 7 of the Amended Statement of Claim in the 1988 proceeding alleged that a Notice of Requirement was served]
Justice Kaye's Reasons for Judgment
In relation to Tylden Rd, I had provided Bank Guarantees to guarantee what I though to be Buchanan's obligation at law to construct the services to the Tylden Rd land. Buchanan did not construct the services and after his threat to bankrupt me the Council called upon my bank guarantee in the sum of $25,000 which I then paid in full. After constructing the roads the Council was left with an overrun of cost of $3,708.00. It sued me in the Magistrates Court at Bendigo. The Council's argument was that it had served a requirement pursuant to its Minutes of 20th February 1980, that I had purchased 15 of the 18 allotments and I was the "owner" for the purpose of s.569 of the Local Government Act.
The Council's claim was manifestly wrong. The Notice of Requirement by its very terms was a Notice requiring the owner, Buchanan, to construct roads. It was not a requirement empowering the Council to either hold or call upon my bank guarantees. The Magistrate, unbelievably, found that I was the "owner" and that the requirement made by the Council was one made under either s.569E(1)(b) or (d) of the Local Government Act and that the Council was therefore empowered to hold and call upon the Council's Bank Guarantee.
I appealed and Justice Kaye heard the appeal. Justice Kaye found:
- On 20th February 1980 the Council served a Notice of Requirement. [at star]
- The Notice of Requirement was a Notice pursuant to s.569E(1)(a) of the act. [circled]
- The Notice of Requirement was not a Notice pursuant to 569E(1)(b) or (d). [circled]
Justice Kaye's explicit finding therefore was that the Council had served a Notice of Requirement requiring the construction of roads but the Council had not served a Notice empowering it to either hold or call upon my, or any, bank guarantees. [section 569E here]
This Judgment was manifestly based upon a belief, firstly by the Magistrate and then by Justice Kaye, that a Notice of Requirement had been served on the 20th February 1980 and that Notice related to the 18-lot Tylden Rd plan which showed all allotments and all of the roads.
The Releases
Both the 1988 Tylden Rd proceeding and the 1995 Woodleigh Heights proceeding were settled and Terms of Settlement signed. These Terms of Settlement contained releases for the subject matter or "cause of action" of those proceedings. I did not get any payment for my loss and damage in either of these proceedings. The "causes of action" in both previous proceedings were based on the fraudulent misrepresentations of the Council and Water Authority.
It would be an injustice indeed if a crook could lie to or conceal facts from a court and then gain immunity from paying damages because his victim did not become aware of that lie or concealment till after the proceeding was settled.
Both the 1988 Tylden Rd proceeding and the 1995 Woodleigh Heights proceeding were predicated on the fraudulent representations of the Council and Water Authority which specifically concealed the true and new "causes of action" [see concealment Tylden Rd here and Woodleigh Heights here]
The new "causes of action" are the complete antithesis of the previous causes of action. [see here]
Master Efthim's determination in respect to the releases was predicated on a complete misunderstanding due to the fact that he had been comprehensively misled by the lawyers. [see here]
Justice Osborn's determination in respect to the releases was predicated on his fabrications as to the gravamen of the 1988 Tylden Rd proceeding [see here] and to the 1995 Woodleigh Heights proceeding. [see here]
A release cannot and does not include a release from the complete antithesis of the subject of that release. In addition, the true "causes of action" were specifically and overtly concealed at the time of signing those earlier releases and the releases themselves were obtained in fraud.
Is there a brave QC in the house?
My Notice of Appeal against the orders of Justice Osborn did not beat around the bush. It explicitly set out:
- That the lawyers for the Council were fully aware that they had misled the Court and wrongly obtained judgments based on that deception.
- That Justice Osborn's Reasons flew in the face of the facts and the law.
Naively, despite my experience to date, I still had some confidence in the justice system. After I filed my Notice of Appeal, the lawyers for the other side made application that I lodge money with the Court as security for their costs of the appeal. I opposed this application on the grounds, that, in the circumstances, I was entitled to an appeal whether or not I was capable of lodging security for costs. In addition, I set out the details of the "Authenticated Orders".
At the hearing of this application before Justices Buchanan and Redlich in September 2007, the lawyers for the Council and Water Authority argued that my appeal had no hope and they asserted that the Judgments of Master Efthim and Justice Osborn were correct Judgments and I was basically a troublesome litigant. Justices Buchanan and Redlich ordered that I provide security for costs in the sum of $60,000.
Later, at a directions hearing for the appeal, the lawyers again represented me as a troublesome litigant by saying they couldn't agree with me as to the facts and "causes of action". This is despite the fact that their strike-out application was supposed to be related to the "causes of action" in my proceeding. Master Lansdowne refused my application to have the facts "causes of action" agreed upon.
By this time, I realised that I didn't have a hope if I stood up in Court unrepresented and told the truth, in the face of these lying lawyers. I had experienced first hand the palpable disdain of the Courts when I stood up before them without entitlement to a wig. I needed a legal team with the integrity and courage to put the ugly truths which were in my Notice of Appeal. I engaged a solicitor with the express instruction to retain a barrister and QC with these specific qualities. I knew this to be a big ask however I was hopeful there was someone out there that would fill the bill.
A senior QC and barrister were engaged and I paid $20,000 into the solicitors trust account to cover costs to that extent. I put some "threshold questions" to determine their mettle so to speak, and I provided them with copies of all documents including two complete copies of the outrageously voluminous appeal books.
I then had my first meeting with the QC and barrister. I wished to discuss the reasons for my appeal, namely that I had been done over by lying lawyers for the other side and negligence on the part of my lawyers and finally by Osborn fabricating his Reasons. The QC and barrister refused to be drawn to comment on these things and instead directed the conversation to pedestrian aspects related to Tylden Rd. They finished by saying I would lose at appeal in relation to Tylden Rd because the Council had provided me with the means to ascertain the truth. They explained this advice by way of analogy, and their analogy was that of a counterfeiter. They said that if you purchased, say, a counterfeit gold ring then you could not sue the counterfeiter after 6 years because it was open to you to take the ring to a precious metal assayer and have it analysed before that time.
I rejected this advice absolutely because, in this specific case, the Council had concealed the new cause of action by means of perjury and falsification of documents. On the advice of this QC and barrister, a crook could avoid the consequences of his crime by a further crime, namely perjury. On their advice, perjury did not constitute fraudulent concealment so long as the crook provided a miniscule clue at the time of his perjury. This is either absolute nonsense or a great lesson for fraudsters, leave a miniscule clue and your home free after 6 years. Rubbish.
I wrote a letter to this effect and told them, including my solicitor, that I rejected this advice unless they could show me a precedent where one could not sue if one discovered the perjury after 6 years. I told my solicitor in no uncertain manner that I believed a "boys' club" was in operation.
I then had a second meeting with my QC and barrister. They did not provide any precedent and refused to discuss the Tylden Rd aspect any further. They continued to refuse to be drawn on any comment whatsoever as to the real issues, namely the conduct of the lawyers and Osborn. At this meeting the Woodleigh Heights aspects were discussed and they said that my appeal would fail because I had not discovered (made available) a copy of the "reticulation plan".
For starters, the Water Authority possessed this plan and, although I had been shown it, I had never been given a copy. But the most important thing is there was no need for this plan to be given in evidence. The very grounds of their strike-out application included an admission that the water main had not been laid in 1979. The Council and Water Authority had admitted that the water main had not been laid in 1979 when they sealed the plans of subdivision. They also admitted to the fact of the "reticulation plan" and what it showed. Therefore the "cause of action" had been admitted to and the question before the Court was when I knew about this "cause of action", i.e. it wasn't whether or not the water main had been laid in 1979, but when was I aware that the water mains had not been laid.
These barristers also advised me that the Court of Appeal would be prejudiced against me because I'd already had two Judgments against me and, on their assessment, I would lose. They then said, to the effect, that their integrity did not allow them to act for me and they refused to put my case.
It appears to me that these people did not even have the courage and/or integrity to acknowledge the ugly truths, let alone put them to the Court and they assiduously avoided saying anything of substance that they could be quoted on.
I concluded that because of the brotherhood I had no hope within the judicial system of the Supreme Court of Victoria. I had my lawyer file a Notice of Discontinuance and determined to create this website instead.
Afterwards I received an account for a further $33,000 making the total bill $53,000 for their oral opinions (not a word in writing!) which completely ignored the grounds of my appeal, namely that the lying lawyers had misrepresented the causes of action and obtained two false Judgments including one based on Osborn's fabricated Reasons.
I consider their opinions about the prejudice of the Court to be the only decent bit of advice given, the rest was not worth two bob.
If the QC and barrister concerned care to put their "opinions" in writing, I will be delighted to publish them here.
In my view, my subsequent experience at the hands of Justices Neave and Mandie confirmed my decision to abandon the appeal to be a good one, given the apparent prejudices of the Court.
An Arranged Value
Without water the land was useless and valueless. As concluded by AGC when it tried to sell the land it "would not attract a bid, let alone a fair price". It appears to me that the price agreed between John Norman Price/MCL/Esanda and Deckwood, which was controlled by Buchanan's children and one of his solicitors, Jame Stanton Lewis, was a price "arranged" to give the appearance of fair price. The price was certainly neither of a value representing useless land or market price with water.
Paragraph 51 of my affidavit
The so-called "unlawful" plans were merely "naughty" plans which did not set out all of the roads or all of the allotments. They were absolutely irrelevant to the cause of action. The reference to them at my paragraph 51 was to say how and when I first learned that Buchanan was involved in crooked deals to "attempt" to avoid s.9. All that was relevant was that it was a long time ago. At my paragraph 51 I said that my solicitor Danny Ginsbugh had told me that Buchanan had somehow manipulated the plans to avoid section 9 of the Sale of Land Act. At that time I had no cause to even begin to suspect that the Council was involved in any of the crooked dealings now set out on this website. Danny Ginsburgh was my solicitor in 1983.
At paragraph 51 of my affidavit I expressly said that Iknew about the "unlawful" plans and their intent when Danny Gisburgh told me. That was 1983. The "unlawful" plans did not and could not cause loss and damage and did not constitute any part of the "cause of action".
In 1987 I read the legislation for myself and learned that 2-lot plans do not and cannot facilitate avoidance of section 9.
Dixon, Delany and Ahern fabricated all of their "true lies" for the deceitful purpose of establishing that the Council and Water Authority disclosed the pseudo "cause of action" to me during the 1988 Tylden Rd proceeding. They could have saved themselves all that trouble and deceit, My affidavit says that I knew about the plans and their purpose when my 1983 solicitor told me.
Notice Of Requirement - Explanation.
A Notice of Requirement is a document which a Council was empowered to issued pursuant to section 569E of the Local Government Act 1958.
A Notice of Requirement could require the OWNER of subdivision land to do any one of the things set out in s569E(1)(a), (b), (c) or (d) of the Act. In addition under s569E(1A) the Council could impose a requirement for water if it wished but the Council was required to make a requirement pursuant to s569E(1A) if the Water Authority required the Council to do so.
The Notice of Requirement purportedly issued in relation to the 18-lot plan of subdivision required the owner (Ken Buchanan) to construct the roads and to give a written statement that a water supply agreement had been entered into.
A Notice of Requirement imposed a duty at law once served on the OWNER.
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