A major discovery and the first foray into the Supreme Court.
In some of the foregoing material I speak of the fact that the 1978 water supply was approved by the Council and was common property and I and my land always had an entitlement to that supply. My problem however was that prior to 1995 I could not demonstrate that this early or original water supply had any status or standing at law or that it constituted a “reticulated water supply”. All that changed on 8th August 1995.
During the period about 1986 until 1989 when my land was sold by MCL/ESANDA’s solicitor Price to the children of Buchanan I spent hundreds upon hundreds of hours accumulating documents, many of these hours were spent in the Council offices reading and taking copies of their minutes, condition 8 of the Planning Permit provided that the Woodleigh Heights subdivision be completed in accord with the plans and submissions which accompanied the application, during these visits to the Council offices I requested access to these plans and submissions but Greame Wilson told me that the submissions were oral and had been made by Buchanan to a special joint sitting of the Council and Water Authority. I requested access to the Woodleigh Heights file on numerous occasions but was always refused.
At all times since I purchased the land I was aware of the private water supply and reticulation system, my problem was that I could not show that it had been approved in any way shape or form and could not demonstrate entitlement to it or that it constituted a “reticulated water supply” which the Council said was a prerequisite for the grant of building permits but It was known to me that the Council had approved a number of Building permits prior to the Water Supply from the Water Authority and I knew the Council’s policy that such permits were not available without a reticulated water supply so it must have been that these earlier building permits were issued on the basis of that earlier supply and that it did constitute a “reticulated water supply”.
At the 1987 Administrative Appeals Tribunal hearing where then Lieutenant Colonel Garde told the Tribunal that the Water Supply Agreement was legal and enforceable I sat myself down at the bar table alongside Garde, because I sat at the bar table Garde and the Council and Water Authority were obliged to provide me with copies of their respective written submissions, this turned out to be a fortuitous master stroke, firstly of course I got a hard copy of Garde’s written submission wherein he squarely misled the tribunal, his assertion was one of fact, not of opinion. Secondly the Council and Water Authority presented a Joint written submission, part of which described the history of the Woodleigh Heights subdivision, that submission said;
“that policy as applied to the subject land provided for a minimum allotment size of 3 acres (with reticulated water and 6 acres (without reticulated water))” and “…. subsequently there was an application for the cluster subdivision of the land into 45 allotments (of 2 acres each) having an overall lot density of 1 allotment per 3 acres. One of the conditions of that development required water to be provided by a large onsite dam and internal reticulation”
This fortuitously gained information demonstrated two things (a) that the private water supply was in fact a condition of the planning permit and (b) that the private water supply must constitute a “reticulated water supply”.
It was also clear that plans and details of that private water supply and that the Council had approved it must exist in hard copy, I knew what I was looking for.
In 1991, at the end of my 1988 County Courrt proceeding, the Council’s barrister, Marc Bevan-John told me about the possibility of Wilson and Parkinson losing their jobs. From then I would inquire by telephone at irregular intervals as to whether or not Wilson and Parkinson were still present. I had moved to Orange in New South Wales in 1993, in about May of 1995 I learned that Parkinson and Wilson were about to be pensioned off or something, then in August of 1995 I again inquired as to Wilson and Parkinson’s presence, they were gone so I asked to speak with the new CEO and I introduced myself as an ex landholder at Woodleigh Heights and requested access to the Woodleigh Heights file. Access was approved so I jumped in the car and drove from Orange to Kyneton and arrived rather late in the day on 7th August 1995, I attended the Council offices and was given access to the Woodleigh Heights file.
I could not believe my eyes; here was this large, very professionally produced, written submission, and it was obvious that it was the one referred to in clause 8 of the Planning Permit. It included a complete, explicit and detailed description of everything related to the then proposed subdivision, including great detail of the water supply and reticulation system. By this time I was thoroughly familiar with all relevant legislation and I immediately knew the import and implications of what I had. There was a bunch of other lesser but most interesting documents. I requested copies of all of these documents but was refused. I had come prepared for this contingency, I had my Minolta single lens reflex camera with close up lens, small tripod and several rolls of 400ASA film so I began to lay out the documents on the Council foyer floor and on the Council reception desk and photograph them, after disrupting the foyer in this manner for some 30 or 40 minutes the Council relented and agreed to provide photocopies and to have them available for me the following morning.
On the morning of 8th August 2005 the Council provided copies and billed me for them, I paid, drove home to Orange and prepared to sue these fraudsters. My land always had an entitlement to a reticulated water supply and that was now clear and irrefutable and the evidence was in my hands, what’s more, the Council and Water Authority were manifestly at all times aware of that fact.
I spoke with Barrister Francis Tiernan who agreed to assist me on a pro bono basis, as and when he could, and solicitors Nevile & Co of Melbourne agreed to act as Victorian agent also on a pro bono basis.
I issued the Writ in October 1995, The cause of action, the gravamen, of that proceeding was as detailed above in the Chapter 1 part 4 of this book, in summary that cause of action was that the Council had in 1978 approved a private water supply and reticulation system, owned and operated by the body corporate, as a compulsory component of the development of the subdivision and accordingly as and from date of the Registrar of Titles registering the cluster plan all owners of allotments had an entitlement to the water supply and reticulation system and that the subsequent representations by the Council and Water Authority that I/my land did not have and was not entitled to a reticulated water supply were false and untrue.
The conduct of the proceeding was tortuous with unsuccessful strike out applications and numerous other tactics to delay and tire me and my money however none of these things are relevant to the present purpose which is to paint the picture leading directly to Osborn’s Court.
Of pertinence to the present purpose is that the Statements of Claim as amended allege identically to the writ, except for paragraph numbers, but additionally at paragraph 13 the Statements of Claim alleged that at the time of registration the following works had been carried out;
The lake was completed and near full of water
Two High level tanks had been completed
The rising main between the lake and the high level tanks had been comlpeted
primary reticulation pipes had been laid in the common property to convey water from the tanks to the allotments
The high level tanks contained water.
The Court ordered mediation, I engaged Mr. George Golvan QC as Mediator, and a pre mediation conference was appointed between the Mediator and myself, shortly before the appointed day the mediator telephoned me and said to the effect “I have spoken to the other side’s barristers; I have seen the Court papers, it is clear in my mind, there is no need for us to meet.” Then at the so called mediation no mediation occurred at all, the Mediator advised me that if I did not settle I would be bankrupted by the costs but he offered no reasons other than to the effect I would not prove my case. His suggestion was that I walk away with each party bearing their own costs. My exact words to him were “there is no difference between broke and broke” and that if some form of reasonable offer was made I might as well proceed. There was then a sham of a mediation in that the Graeme Wilson and David Parkinson, the Shire Engineer and Secretary respectively had put position statements saying that they had at all times acted according to Council policy and at the “mediation” table Golvan asked them if they had been acting according to policy, discussion then ensued amongst the Council and Water Authorities Barristers which included Greg Garde and Steven Edward for the Water Authority and mediator Golvan as to the difficulty in suing where the things alleged had occurred as a consequence of or pursuant to policy of a Statutory Authority. After this sham mediation Golvan said that they were prepared to pay me $20,000 to walk away as this would be cheaper than incurring substantial costs at a trial where they would not be able to recover the costs from me and Golvan recommended that I accept and asserted that I would be bankrupted if I proceeded.
I formed the view that the discussions at the table were genuine and that this “according to policy” must be quite a hurdle that I never even considered and that this was the reasons for Golvan’s recommendation. I agreed to settle and the mediator drew up terms saying it was his policy to have terms signed immediately, I signed and that was that. I was devastated and drove through the night all the way back from Melbourne to Orange.
My losses and damages at that point were many, many hundreds of thousands of dollars and Golvan was thoroughly aware of that. I was essentially broke at that time and unless he thoroughly believed that the initial offer of zero dollars which he initially recommended that I accept and then the lousy $25,000 was, in the circumstances understood by him, a good settlement then it would be totally unconscionable of him to have recommended it. The reader can be absolutely assured I did not accept willingly, I was driven to accept by the conduct of the sham mediation and Golvan’s recommendation, I had lost my house, my business and the various properties related to this fraud and I settled on Golvan’s strong recommendation.
The Practice Court – An extraordinary turn of events.
The day after settlement I telephone Francis Tiernan and told him of events and why I had settled, he seriously berated me and said to the effect “Fraud is Fraud, you have been had”, I sent strong letter to the Mediator in relation to what I then perceived his conduct or more correctly misconduct to be. The Terms of Settlement required the $20,000 to be paid by a particular day. The day came and went and they had not paid, I considered this to be a breach of the terms so I issued Notice of Trial and returned the settlement cheques when they finally arrived.
The Council & Water Authority then issued summonses seeking specific performance of the Terms of Settlement, the matter came on before Justice Beach, Francis Tiernan could not represent me that day, he was tied up in a separate hearing so I represented myself and sat alongside Garde at the Bar Table.
Part of my defence was the sham conduct of the mediation and I submitted my post mediation correspondence with Golvan in support of my submissions. After submissions had finished Justice Beach retired to consider his decision however it was already apparent from his demeanour and questions that I was done for.
During this period we stood up and discussed the weather etc however Steven Edward the solicitor for the Water Authority whom I knew quite well because he spent six days at my home photocopying my documents took a Water Authority’s Woodleigh Heights reticulation plan out of his briefcase, showed it to me and said “how do you explain this” as he pointed to the water mains dated 1982 shown on the plan. I could not explain, my entire case had been predicated on my belief and allegation that the water mains had been constructed, as required by law, by 1979 when the Council sealed the plans and subsequently when the Registrar of Titles had registered the plans.
It then became clear in my mind, the mediator must have been made aware of this when he had a pre-mediation conference with the lawyers for the Council and Water Authority and it was quite fatal to my case, there is no other circumstance where the settlement obtained by the mediator could be seen as conscionable by him. It explains why he suddenly did not need a pre mediation conference with me, he had been made aware of this hard unassailable fact, fatal to my case, not capable of being argued away. In my mind It also provided good reason as to why the lousy $25,000 was not unconscionable to Golvan.
Justice Beach returned to the bench and Ordered specific performance with costs, he said that time was not of the essence and he dismissed my submissions as to the conduct of the mediation.
The take home point here is that Steven Mark Edward, solicitor for the Water Authority had this reticulation plan in his briefcase, it was not discovered by any of the four defendants in their respective affidavits of documents, nor was it mentioned in the voluminous submissions and affidavits generated in the matter.
During the entire four years when the 1995 proceeding remained on foot the Council and Water Authority concealed the fact that the “private reticulated water supply” had not been completed as required by law. The reticulation system had not been laid/installed as required by the Planning and the Shire of kyneton Interim Development Order and the law.
It then became apparent that this had provided a half truth basis for the representations of the Council and Water Authority to the effect that I/my land did not have access/entitlement to a “reticulated water supply”; it simply was not present.
.This reticulation plan was a Water Authority document. Steven Mark Edward was solicitor for the Water Authority and Greg Garde was barrister for the Water Authority at that time. The conduct of Edward is further discussed at Steven Mark Edward – False Affidavit in relation to a false affidavit and the conduct of Garde is further discussed at Price & Garde deceive the tribunal in relation to Garde overtly misleading the Victorian Planning Appeals Tribunal. Their concealment of a discoverable document is consistent with the conductt discussed at Steven Mark Edward – False Affidavit and Price & Garde deceive the tribunal
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Further comment.
Since writing the foregoing, it has become clear that Garde was at personal risk if my 1995 proceeding got to court.
Garde had deceived that administrative appeals tribunal by fraudulently representing that the 1982 water supply from the Kyneton Water Board was the lawful and legitimate water supply to the cluster subdivision and to my land, whereas my 1995 proceeding set out that the water supply from the large onsite dam was the approved and legitimate water supply and the 1982 water supply from the water board was both unlawful and fraudulent.
My 1995 proceeding, in fact, demonstrated Garde’s fraud upon the tribunal; Garde had a personal interest in ensuring that my 1995 proceeding never got to court.
It may be that Golvan assisted Garde in that regard.
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My affidavit and exhibits concerning Golvan’s fraudulent mediation are available here.