In the face of the law, the facts and my written instructions Mr. John Middleton QC and Mr. Neil Adams specifically and with unimaginable neglect misrepresented me and my case
Layman's synopsis
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In 2000 when I discovered the true "causes of action", a solicitor Mr. John Charles Carpenter of Orange New South Wales offered to act for me, and he in turn engaged barrister Mr. Neil Adams. It took them almost 5 years to prepare the Statement of Claim in the proceeding. During this period it seemed to me that I had to explain everything 17 times on each occasion I met with them. Towards the end of this process they engaged Mr. Lex Lasry QC (now Justice Lasry of the Supreme Court). Mr. Lasry finalised and signed the Statement of Claim.
After the proceeding was initiated, the lawyers for the Council and Water Authority issued strike-out proceedings to have my proceeding struck out before trial.
As the time of the hearing of this application approached, Mr. Lasry was overseas defending Australians under sentence of death so Mr. John Middleton QC (now Justice Middleton of the Federal Court) was engaged to appear at the strike-out proceeding. He had ample time, some weeks, to familiarise himself with the case. During this time the Amended Statement of Claim which set out the "causes of action" and the Outline of Submissions were finalised by John Middleton and Neil Adams. I prepared an affidavit which set out the evidence of the concealment issues.
The hearing was scheduled for Monday 14th November 2005. On the Thursday before the hearing, I attended at a conference between John Middleton, Neil Adams and John Carpenter. During this meeting I became aware that they were concerned about the "Book of Pleadings" and the "Black Book" which were documents related to a previous proceeding and would form part of the evidence in the current proceeding. I could not understand why, these things positively assisted my case. I was perplexed as to why they were concerned.
The next day, after arriving home, I thought back to the meeting and formed the view that my legal counsel had become overly preoccupied with the irrelevant "unlawful" plans so, as a precautionary measure, I quickly wrote a document setting out in adequate detail that the "unlawful" plans were irrelevant and I knew about them many years ago and they did not cause loss and damage in relation to Tylden Rd. I emailed that document to both John Middleton and Neil Adams and telephoned John Middleton's secretary to ensure receipt and to ensure that it was passed on to John Middleton.
This document, amongst other things, clearly sets out:
- Unlawful sealing and unlawful plans do not cause loss and damage. (see paragraphs 3, 4 & 5 where I specifically say that the sealing did not cause loss and damage)
- I knew about the "unlawful" plans since 1985. (at paragraph 4) (It was in fact 1983 but I wrote the email hurriedly and without reference to documents)
- The loss and damage was caused by:
(see immediately below paragraph 5)
- the Notices of Requirement which were purportedly issued had no authority of law; AND
- the Council sealed the plans in full knowledge of the fact that services were not present and that there was no lawful means of compelling anyone to provide those services; AND
- the Council sealed the plans in breach of its statutory duty to refuse to do so. [note "AND"s and see "causes of action" page]
- The "Book of Pleadings" contained evidence that I was unaware of the true "cause of action" when that document was compiled and helped rather than hindered my case.
- That the "Black Book" contained discovered documents which repeated the perjury and falsified documents given in the Magistrates Court and Supreme Court and it helped rather than hindered us.
My email did not purport to be exhaustive, it was written hurriedly late in the day without reference to documents, its purpose was merely to spell out that "unlawful" plans and "unlawful" sealing per se were irrelevant and that the "Book of Pleadings" and the "Black Book" positively assisted my case. (see paragraphs A, B & C)
The Amended Statement of Claim and my affidavit squarely set out the facts of the true "cause of action" and the concealment thereof. My email was written with confidence that Middleton and Adams were familiar with and understood the law and the true "causes of action" and they were familiar with the content of my affidavit and the allegations clearly set out in the Amended Statement of Claim.
The hearing came on before Master Efthim. At that time I was offended by the affidavit by Steven Mark Edward which claimed that I lied when I said he attended at my home and not my solicitor's office when he acquired the "Book of Pleadings". Before the hearing I provided Neil Adams with the photographic evidence to disprove Steven Edward's affidavit. Neil Adams said that he would not raise the issue and specifically said "the Court does not want to hear about these things". Mr. Garde QC however raised the issue before the Master and made much of the disparity between the affidavits of Steven Edward and myself. My "team" did not put the evidence and failed to make a convincing argument that I was telling the truth. Master Efthim concluded that he preferred Steven Edward's version to mine and my credibility was impugned. [see at star]
Over the two days of hearing, I was unwell and spent little time in Court. Additionally it was difficult to follow from the snippets I could hear from the back of the Court and I could not make head nor tail of the thrust. However that which I heard seemed eloquent enough and I thanked John Middleton at the end each day.
After the hearing, I acquired the transcripts and read them during the 2005 Christmas break. I was shocked and horrified to find that Middleton had not put my case adequately or at all. Instead he had specifically misrepresented me and the facts and had put an argument, apparently based on a gross and careless misunderstanding of the law and about my knowledge of "unlawful" sealing and "unlawful" plans per se and avoidance of the "simplistic view" of the literal provisions of s.9 of the Sale of Land Act. He completely failed to set out the true "causes of action" and the avoidance of the "effect" of s.9 of the Sale of Land Act as specifically alleged in the Amended Statement of Claim. His submissions in relation to Tylden Rd were a complete and abject failure and consisted of overt careless and negligent misrepresentations of the law and the facts. By way of graphic example:
At page 35 of the transcript of 15th November 2005 Mr. Middelton said:
"Mr. Buchanan .... avoid the operation of s.9 ..... one simple way of doing it, lawyer telling you how to avoid it."
to which Master Efthim said:
"Two Allotments"
and Middleton said,
"And do lots of them" [see circled and underlined text]
At page 38 of the transcript Mr. Middleton said:
".... this is the first time that it's been alleged that the initial sealing of the plan of subdivision was unlawful or illegal... "; and
"... ..a step which was never thought of .. .. that the subdivision itself would be unlawful."; and
"What was proceeded with to get around s.9 of the Sale of Land Act ... .. were a series of two lot subdivisions .. .. " [see circled text 1, 2 and 5 respectively]
At page 44 and 45 of the transcript Mr. Middleton went into great detail about how the "unlawful" plans were "contrived" to avoid s.9 of the Sale of Land Act. Before setting out these things for the Master, Mr. Middleton prefaced them with:
"...... we'll see what did happen, not to Mr. Thompson's knowledge however. It took a little while for this to sort of sink in......" (my emphasis) [transcript here]
At page 70:
"we say the fact that we're relying upon, namely the unlawful sealing initially, is a new fact which gives rise to its own cause of action ......" [transcript here]
At page 71
"....... we did not know that the subdivision was originally flawed and unlawful and we found that out in August 2000." [transcript here]
These extracts are representative of the numerous misrepresentations made. They are an unequivocal assertion by John Middleton to Master Efthim that I was unaware until August 2000 that the plans were "unlawful" and contrived to avoid (the simplistic view of) s.9 of the Sale of Land Act. These and similar assertions were false, misleading and damaging. John Middleton and Neil Adams had been fully informed that I was aware that the plans were unlawful as early as 1985 (it was in fact 1983).[see paragraph numbered 4]. In addition I had made it clear to John Middleton and Neil Adams that "unlawful" plans were entirely irrelevant to the cause of action. Also at paragraph 51 of my affidavit I had disclosed my specific knowledge of these "unlawful" plans since at least 1983 and Middleton and Adams had specifically settled my affidavit including this very paragraph. (Mr. Ginsburgh was my solicitor in 1983) [complete affidavit here].
In addition these submissions by Middelton were just plain nonsense, they fly in the face of the law, John Middelton was a QC and as I now know about to be appointed a Judge. He must have made his submissions with unimaginable lack of care, contemptible neglect. This man was an eight thousand dollar a day man.
Little wonder Master Efthim was amazed, these "unlawful" plans stood out like neon signs, only a fool would be unaware that they were unlawful and contrived and I was no such fool. Mr. Middleton's representations were false, damaging, full of such misrepresentations and were and remain offensive to me. His submissions didn't even have common sense. Plans of subdivision and "unlawful sealing" just cannot cause loss and damage. These things did not and could not give rise to "its own cause of action" as stated by Middeleton at page 70.
On the facts and the law before John Middleton and Neil Adams, these contrived plans did not facilitate avoidance of s.9 of the Sale of Land Act at all. There was no basis in fact or law for his submissions. [details]
Middelton's careless and negligent submissions opened the door for the deceitful strategy of the lawyers for the other side. [see Lying Lawyer part one]
Middleton's submissions were in the face of the facts, the law, the Amended Statement of Claim, my affidavit, his own Outline of Submissions, the "Book of Pleadings" and my written instructions to him. In addition unlawful plans and unlawful sealing per se, cannot, of themselves, cause loss and damage. Middleton's neglect was profound and abject.
John Middelton, Neil Adams and John Carpenter prepared an Outline of Submissions dated 9th November 2005. I was aware of the content of this document.
At page 8 of their Outline Middleton et al, wrote;
"In the current proceeding the assertions are that:
(i) The council unlawfully sealed the Tylden Rd plans of subdivision without services leaving any prospective purchaser without services on the suibdivision and without recourse to any legal means of compelling the developer or any other person to provide those services;
(ii) The Registrar of Titles registered the cluster subdivision only because of the false representations inherent in the council's unlawful sealing of the plans." [see circled text]
These statements by Middleton are in accord with the true "causes of action" set out in the Amended Statement of Claim and defined by me in my affidavit excepting that with twenty twenty hindsight I now see that subparagraph (i) should have said without the Council being able to compel construction. In relation to subparagraph (ii) there was only one reason why the sealing of the cluster plan was unlawful and that is that the planning permit had not been complied with so subparagraph (ii) is in exact accord with the true "causes of action" defined by me and that is as I read those paragraphs at that time.
Immediately following this, under the heading "Limitation Issue", Middleton discusses, naturally enough, limitation issues, then following that, under the heading "Concealment .........", Middleton sets out a subheading "Unlawful sealing of the plans of subdivision" and then he sets out in substantial detail the filing and processing of the 2-lot plans of subdivision. "which were contrived to facilitate the sale of allotments in breach of S9 of the Sale of Land Act 1958." [see first circled text]
The "contrived" 2-lot plans were specifically set out by Middleton in his Outline as being a concealment issue, not a "cause of action" issue and the concealment specifically addressed by him was concealment from the Registrar of Titles, not the concealment from me. [see second circled text]
I thought Middleton was going to address the concealment from me issues which are set out in my affidavit during his submissions and in this regard he refers to my affidavit at his page 13. [see circled text]
It was necessary to set out the fact of the 2-lot plans and the fact that these plans had been "contrived" for the purpose of avoiding section 9 of the Sale of Land Act, this established the male fides and the intent to avoid section 9 so that avoidance of the "effect"of section 9 could be argued in relation to the true "cause of action". However rather than demonstrating male fides Middelton misrepresented me, my case and the law when he made the representations set out above.
Middelton completely failed to set out at all the true "causes of action" and he completely failed to make any submissions as to the concealment of those true "causes of action"
In addition it is manifest that these series of 2-lot plans of subdivision did not and could not of themselves cause any loss and damage and consequently did not and could not of themselves constitute any part of the "cause of action" alleged in the 2005 Amended Statement of Claim. So even if the 2-lot plans did enable avoidance of section 9 as misrepresented by Middelton they still could not and did not form any part of the "cause of action" as further misrepresented by him.
He completely and absolutely misled the court and misrepresented me.
Insofar as Woodleigh Heights was concerned, Mr. Middleton was equally negligent. It is impossible to determine the true "cause of action" let alone the issues of concealment from anything said by Mr. Middleton yet these things were squarely before him in the Amended Statement of Claim and in my affidavit.
That Mr. Middleton and Mr. Adams failed to put my case at all is demonstrated by Master Efthim's Reasons which make no reference at all to the issues relating to the true "causes of action and Master Efthim did not adjudicate on these true issues.
The law squarely and in most simple terms set out that section 9 cannot be avoided. [details]
The "Book of Pleadings" set out that section 9 had not been avoided, it had been broken. [details]
Middleton's further abject neglect
Having completely misrepresented my case John Middleton and Neil Adams completely and utterly failed to put anything of the concealment of the true "causes of action" to the court.
John Middleton was paid some $86,000 for this "effort". He was paid before I became aware of his neglect.
Upon learning what had occurred, by letter and email of 14th February 2006, I wrote to John Middleton, Neil Adams and John Carpenter and informed them of what I perceived to be their gross neglect. I told them in no uncertain manner that they had misrepresented me and, on the submissions made, the Master would come down against me. I demanded the return of the money which had been paid to Middleton. Of course this did not happen. (at the time of writing my letter of 14th February 2006 I did not yet completely understand what had occurred as now set out on this website).
John Middleton wrote back and denied my allegations. Neil Adams did not even have the decency to respond at all. John Carpenter also denied my allegations.
Master Efthim handed down his Reasons on 15th May 2006 and found against me for the exact reasons that I had forecast three months earlier. Master Efthim did not adjudicate on the "causes of action" set out in the Amended Statement of Claim which he was required to adjudicate on. John Middleton and Neil Adams had completely and utterly failed to put my case.
Despite Midleton's denials the facts speak for themselves:
- The "causes of action" were clear and set out in the Amended Statement of Claim.
- My affidavit of 18th October 2005 addressed the true issues and the concealment of those issues but depended upon relevant submissions by Middelton. .
- My email to Middleton and Adams on the Friday before the Monday hearing was explicit enough. It said that the plans were irrelevant and that I knew about them in 1985
- The law and the "Book of Pleadings" squarely set out that 2-lot plans do not faciltate avoidance of section 9.
- John Middleton and Neil Adams negligently or carelessly specifically misrepresented me and failed to even set out the true "causes of action" let alone the concealment of those "causes of action".
It is clear from Master Efthim's Reasons that, after hearing from the lawyers for two whole days, he did not adjudicate on the true "causes of action", nor on how those causes of action were concealed.
Once Middelton had made his careless submissions it was then open to Dixon, Delany and Ahern to proceed with their deceiful strategy [see Lying Lawyers Part One page]
The combination of Middleton's abject neglect and the overt misrepresentations of the lying lawyers sealed the case against me.
Little wonder you can't sue Barristers here in Australia. I dare say that if they could be sued they would be a little less cavalier and a little more democracy may ensue.
I had a friend with me at the meeting with Middelton. On the way home that friend commented that they (Middelton and Adams) were too arrogant, they did not listen to what you said. I had to sit on a couch while the lawyers worked out tactics. My friends comments largely caused me to send the email as a precautionary measure.
Adams took four or more years to prepare the Statement of Claim, substantially because I had to explain everything to him at least seventeen times on each day we met. However I was not concerned, firstly we had Lex Lasry Q.C. and then leading up to the day of hearing we had John Middleton Q.C., an eight thousand dollar a day man. Plainly, I thought, capable of understanding section 9 of the Sale of Land Act and the causes of action set out in the Statement of Claim.
The "Book of PLeadings" in fact overwhelmingly supported my case in relation to the true "cause of action" in relation to Tylden Rd. [see Osborn and the Book of Pleadings with particular regard to Osborn's omissions]
There were two further letters between myself and Middleton, they may be viewed here and here. Despite the glaring facts Middleton maintained denial.
It is not possible that either John Middleton or Neil Adams held a competently reasoned or reasonable belief at all that the case, as put by them, was even arguable, let alone winnable. Why did they even put it? Little wonder they appeared concerned by the "Book of Pleadings"
| After 25 years of fraud, the Council and Water Authority sought to deny me my day in Court. It should have been so simple - identify the "causes of action" and demonstrate the concealment, that's all that needed to be done. I was represented by one of the TOP Senior Counsel in the country. Due to their abject failure, John Middleton and Neil Adams forfeited my day in Court and then denied their abject neglect and failure. |
John Middelton and Neil Adams submission may be viewed here. Transcript for days 1 and 2 here and here.
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