Discovering the Causes of Action – Tylden Rd.
Immediately following the “settlement” of the 1995 Woodleigh Heights proceeding the Council jumped in for another bite at having me pay the rates which it had purportedly levied on the nonexistent industrial allotments and then fraudulently transferred to the parent title, I was seriously annoyed by this, in addition I was still smarting from the incredible inequity of the unconscionable “settlement” of the Woodleigh Heights proceeding and was determined to find an answer to why/how it was that the reticulation system had not been completed as required by law so I started reviewing everything that I had.
Back at the time of the most unsatisfactory settlement of the Tylden Rd proceeding in the County Court when agreement was reached the court was adjourned; Wilson and Parkinson went home leaving my barrister, Francis Tiernan and the Council and Water Authority’s barrister, Marc Bevan-John, and myself, the barristers went to one side to draw up the Terms of Settlement and at that time their barrister asked me to hold this rather large black ring binder and he did so he told me that Wilson and Parkinson would probably be not with the Council for much longer because the Government was considering or about to re-organise or amalgamate councils, I put it down with my number of equally large ring binders, the Terms of Settlement were then drawn up and signed, the Council and Water Authority’s barrister signed on their behalf and left without the Black Book as it came to be known. I took it home, glanced at it and saw that it was nothing more than copies of all of the documents. Discovered by the Council and Water Authority, the case was over, finished, done so I thought no more of it until this ugly dishonest rate claim raised its head again.
Some of the discovered documents in the earlier Tylden Rd proceeding were entirely irrelevant to that proceeding because they related to the industrial land but here they were there together with relevant documents in convenient bound form in the Black Book so I began going through it. Towards the front of the Black Book were the copies of the contrived series of plans,
From the day following the Magistrates Court hearing I had known that these plans had a reference number in the series 79305/E to 79305/K because the Council Minute of 21st May 1980 recorded those numbers as the references for the plans which were sealed on that day, I gave it no thought but assumed they were Council file reference number or the like and I did not know which plan was which but that was of no consequence, all seven had been sealed.
A little further on in the Black Book was an “inward correspondence” letter of the Water Authority, attached to that were copies of the industrial plans but they were different to the ones toward the front, these ones had an identifying number on them sequentially similar to the Notice of Requirement which the Council had discovered, the industrial plans were also contrived two lot plans and on looking at them I noted that the identifying number related to the alpha lot numbers on the industrial series of plans, i.e. the plan with identifying number 79305/B was the plan with the alpha lot “B” and the plan with identifying number 79305/C was the plan with alpha lot “C”, it therefore followed that the alpha lot numbers and plan identifying number on each of the residential series of plans would have the same relationship. I then looked back at the residential series of contrived plans and noted that they had been photocopied in such a manner as to omit the identifying numbers and I noted that the plan with the alpha lot “G” on it showed only a very short section of the total road. I also noted that the single Notice of Requirement which the Council had discovered in all three of the Magistrates Court, the Supreme Court and the County Court specifically related to plan 79305/G. This was the first moment when I knew which plan was which and which specific plan the single discovered Notice of Requirement related to.
It then became a matter of simple logic; bearing in mind that in the Magistrates and Supreme Court proceedings the object of the Council was to prove that I was “the owner” liable to pay the costs overrun of road construction and to do this Council relied on its assertions in those courts that on 20th February 1980 it had issued a single Notice of Requirement related to the 18 lot plan which the Council had considered on that day and that the Council had subsequently processed that plan in several parts and subsequently pursuant to the Notice of Requirement the Council had constructed the road shown on that 18 lot plan and the Local Government Act empowered the Council to recover from “the owner” the overrun of costs of construction of the road shown on that plan and I was that “owner”.
Upon realising which plan was which it was immediately apparent that the plan related to the discovered Notice of Requirement showed only a small portion of the road, a quick look at the other six contrived residential plans revealed that the Council had landed itself in yet another tributary of its already large and deep cesspool of deceit, dishonesty and corruption and the only way out on this occasion was carefully planned perjury and falsification of documentary evidence and improper conduct of the proceeding.
The problem for the Council was this; (assuming for the moment the validity of the Notices of Requirement and that the road was legitimately constructed by the Council); by their specific terms the Notices of Requirement refer to and relate to only the road shown on the plan and nothing more and where a council has constructed that specific road the Local Government Act empowers recovery of overrun of costs for that specific road and no other and in this instance the Notice of Requirement related to a plan which only showed part of the road the Council had constructed and were seeking to recover the costs of so clearly the Council could not put that Notice of Requirement together with the plan it specifically related to into evidence.
So why didn’t the Council simply put a Notice of Requirement and related plan which showed the whole of the road into evidence or alternatively simply exhibit all of the Notices which had been purportedly served in respect to the contrived plans.?
Well the answer is serendipitously unfortunate (sic) for the Council; the facts of the contrived series of plans were that the first four of these plans E,F,G & H, were ones which showed allotments purchased by me but each of these contrived plans showed only a short but incrementing part of the road and the Council needed to demonstrate my liability for the whole of the road so these plans did not suit the Councils purpose.
The next plan, plan “I”, showed the whole of the road and numeric lot 6 which Buchanan had sold to Mr & Mrs Lance Nichols and clearly I was not “the owner” liable for the costs overrun for the road shown on that plan, on the Council’s reasoning Mr & Mrs Lance Nichols were liable, similarly, the next plan, plan “j”, also showed the whole of the road and numeric lot 16 which Buchanan had sold to Mr. Ross Nichols so again, clearly I was not “the owner” liable for the costs overrun of the road shown on that plan, Mr. Ross Nichols was. The next plan, plan 79305/K, also showed the whole of the road and 12 numeric allotments including Lot 4 which Buchanan had sold to a Mr. & Mrs Caulfield, the remaining 11 of the allotments on that plan had been purchased by me and clearly the Caulfields and I were “the owner(s)” on that plan and perhaps we had joint or several or proportionate liability.
In other words, to put it simply the Council could not put both the facts known to it and its argument to the Court, it could not put the first four plans either individually or collectively along with their respective Notices of Requirement because on them I was only liable for part of the road, it could not put either of the next two plans and their respective Notices of Requirement because on the Council’s argument the Messrs Nichols were each individually liable for the whole of the overrun of costs for the whole of the road shown on their respective plans. Similarly they couldn’t put the next plan because the Caulfields had at least some liability.
Now to go back a step for a minute, in his sworn evidence Graeme Wilson the Shire Engineer squarely said that the Notice of Requirement in evidence and related to plan 79305/G had been served on 20th January 1980 in relation to the 18 Lot plan.
This was manifestly false, in addition the Plans given in evidence were each copied in such a manner as to omit the identifying number and thereby prevent the Court from becoming aware that the Notice of Requirement in evidence in fact related to a plan showing only part of the road.
This raised the question in my mind as to why he did not simply admit into evidence the Notice of Requirement he swore had been served on 20th February 1980 in relation to the 18 lot plan which showed all of the road? There was only one logical answer; Wilson could not and did not put that Notice of Requirement into evidence because it did not exist and then I realised that the reason why the Council had given a locality plan in evidence in the Magistrates Court and gave evidence that the Council had considered that plan on the 20th February 1980 and had resolved to issue the Notice of Requirement in relation to that locality plan.
With this probability in mind I then reviewed the material again, including the conduct of the County Court proceeding, the following may repeat a little of the foregoing but the conclusion is inescapable, the Council committed perjury and admitted falsified documents in the Magistrates Court and the Supreme Court and then the Council and the Water Authority discovered falsified documents and made partial discovery and made false and misleading admissions in the County Court to conceal the fact of the earlier perjury and falsified documents and for the added purpose of deceiving the County Court and I at the time of the 1989 County Court proceeding.
Upon arriving at the realisation/conclusion that the Notice of Requirement related to the 18 lot plan never did exist everything else fell into place; in the Magistrates and Supreme Courts the Council submitted into evidence a locality plan showing the subdivision and all 18 allotments and the whole of the road and gave evidence that the Notice of Requirement in evidence had been served in relation to that plan, this plan also had no identifying numbers on it but to me it was manifestly a locality plan and not a plan of subdivision at all.
This self same locality plan, along with the contrived plans, was then discovered as item 13 in their affidavit of documents during the County Court proceeding and described as:- “Copy plan of subdivision of part crown portion 129 and 132 Parish of Lauriston, County of Dalhousie sealed the 21st May 1980”, this was simply false, the plan was not a plan of subdivision at all and the Council did not seal any such plan on that day or at all.
The plans which were sealed on that day were each of the contrived plans and no other.
This plainly falsified description overtly restates the false evidence given in the Magistrates Court and appears intended to provide verisimilitude to their false assertion that the 18 lot plan had been processed in several parts. The contrived series of plans were also discovered in item 13 of that Affidavit of Discovery but each of them were described by their titles office reference number, namely lodged plans 135199, 135200, 135201 etc and not by their plan number which would/could have disclosed that the Notice of Requirement 79305/G also discovered in the County Court related to one of those plans and not the 18 lot plan as explicitly stated in sworn evidence in the earlier courts and implicitly repeated in numerous admissions in the County Court. So not only did the Council copy the contrived plans in such a manner as to omit the relevant identifier it also described them in discovery in such a manner as to omit the identifier which would have related one of those plans to the single Notice of Requirement discovered and immediately falsify the sworn evidence given in the Magistrates and Supreme Courts. The Council and Water Authority are fortunate that, as discussed above, when I realised the relationship and that there was a separate Notice of Requirement for each contrived plan I concluded representative discovery and continued to believe that the Council had served a Notice of Requirement in relation to the 18 lot plan as well as in respect of each of the contrived plan and did not require further discovery. I imagine they were sweating at the time.
Oh, I almost forgot, because of inadequate discovery during the 1988 County Court proceeding I obtained orders forcing further discover and after three further Affidavits of Documents, of immediate significance or relevance, in response to my demand for discovery of the Notice of Intention related to the Shire Engineers Report and Council’s minute of 20th February 1980 ;
At item 1 of their Supplementary Affidavit of Documents the Council and Water Authority discovered;
A contour plan of the 18 lot subdivision with the handwritten note “Original Sealed 21st May 1980” written on the top right hand corner.
One only Notice of Intention dated 4th March 1980 and that notice had the handwritten note “Note Plan submitted in 5 sections 30th Schedules all identical to this”.
At item 1 of the sworn Supplementary Affidavit of Documents these documents were described as;
Copy of notices in or to the effect of the thirtieth schedule of the LGA submitted to Council in respect to crown portion …. ……. and in particular the Notices in or to the effect of the thirtieth schedule relating to the following plans of subdivision:-
Plan referred to in item 7(c) Shire of Kyneton’s Engineers Report dated 20th February 1980.
So the Council was obliged to discover the true 18 lot plan in three separate court cases, the Magistrates Court, the Supreme Court Appeal and then the 1988 County Court proceeding and on each occasion it had discovered a locality plan and then on forced discovery they discovered a contour plan with a handwritten note on it.
On the face of it the Council had in fact abandoned the 18 lot plan and not processed it further after resolving to issue a Notice of Requirement in relation to it. In addition the Council had not served a Notice of Requirement in relation to that plan; It had instead destroyed the actual plan of subdivision which it had considered on 20th February 1980 processed each of the contrived plans as separate, discrete subdivisions and it had purported to serve separate a separate Notice of Requirement in relation to each of the contrived plans but none of these Notices of Requirement had an authorising resolution of the Council to either issue or serve them.
Then when it came to suing me in the Magistrates Court for the $3,708 costs overrun it did not have a copy of the genuine 18 lot plan of subdivision or the Notice of Requirement said to have been served so it put into evidence the locality plan and perjured itself to represent that locality plan as the plan of subdivision which had been considered on 20th February 1980 and took a copy of one of the Notices of Requirement related to one of the contrived plans and fraudulently represented it as having been served in respect of the 18 lot (locality) plan but it also had to evidence each of the contrived plans because they were the plans actually sealed by the Council but the Council had to clip the identifying number off so as to conceal the fact that the Notice of Requirement actually related to one of those plans and not the locality plan. Then in the County the Council had to and did discover each of the identical plans and described them in their Affidavit identically as they had been described in the Magistrates Court and then when they were forced to do further discovery and discover the Notice of Intention related to the plan considered by the Council on 20th February 1980 and they discovered a contour plan with the words “Original Sealed 21st May 1980” along with a Notice of Intention to subdivide with the handwritten note “Note Plan submitted in 5 sections 30th Schedules all identical to this written on it.
I then looked a little further and discovered what I believe to be conclusive evidence.
PS&R filed two notices of disposition of land with the Council, these notices disclosed that Buchanan had sold lots 6 and 16 of the Tylden Rd land to the Messrs Nichols on 7th February 1980, these sales were manifestly in breach of section 9 of the Sale of Land Act. At that time no plan had even been filed with the Council let alone sealed by the Council or approved by the Registrar of Titles. On the face of it these sales were made by Buchanan and PS&R in the certain knowledge that the Council would subsequently process the series of contrived plans the purpose of which was to avoid PS&R and Buchanan’s mistaken view of section 9 of the Sale of Land Act.
On the 12th February Buchanan filed the 18 lot plan with the Council. By engineers report dated 20th February 1980 Wilson recommended that the Council resolve to issue a Notice of Requirement in relation to that plan, on the face of it no such Notice was ever either issued or served, if it had been there would have been no need for the perjury and falsification of documents and false admissions in the three Court proceedings. On the face of it the reason why no such Notice was issued or served is because the Council and/or its executive officers were aware that the contrived series of plans would soon be filed for the purpose of rendering lawful the two unlawful sales which had been made.
Then on 4th March 1980 Buchanan filed seven separate notices of intention along with 7 separate plans six of which were contrived to be two lot plans of subdivision creating one numerically designated allotment and one alpha designated allotments each, these plans bore the surveyor/draftsman reference numbers 79305/E through 79305/K inclusive. The allotments numbered 6 and 16 were set out on plans “I” and “J” in that sequence and these were the allotments which had earlier been sold to the Messrs Nicholls.
It is clear that neither Buchanan or the Council ever intended to prosecute the 18 lot plan to completion; they always intended that the contrived series of plans be subsequently filed and processed in order to validate or otherwise render legal the manifestly illegal sales Buchanan made prior to filing the 18 lot plan.
On the face of it someone in authority in the Council was always aware of the intention to file the contrived series of plans, the 18 lot plan was filed and then that person had the Councillors consider the 18 lot plan and resolve to issue a Notice of Requirement in relation to that plan, that officer then did not issue the Notice of Requirement because he knew full well that the contrived plans were on their way and there never was any intention of that officer or Buchanan to further process that 18 lot plan at all. Buchanan then filed the contrived plans on 4th March 1980 which, not coincidentally, is the same day on which the Notices of Disposition filed with the Council say that the Messrs Nichols were given possession of their respective allotments. Then in full knowledge that there was no Notice of Requirement either issued or served or ever intended to be issued and served in relation to the 18 lot plan, the responsible officer then on or about 6th March 1980 fabricated seven Notices of Requirement by fraudulently back dating them to 20th February 1980 and falsely completing them to recite that the contrived plan which each Notice purported to relate to had been filed on 12th February 1980 so as to fraudulently give each notice the appearance that they had been issued with the authority of the Council’s resolution of 20th February 1980.
This officer in authority then deceived the Councillors by saying, in writing, to the Councillors that the 18 lot plan had been submitted in seven parts and that a requirement had been served upon the owner and then recommending that the Council seal each of the (contrived) plans. As anticipated by Buchanan and the responsible officer the Councillors jumped to the responsible officer’s command and dutifully (but grievously negligently) resolved to seal each of the contrived plans on 21st May 1980.
The manifestly obvious fact is that there never was any intention by the Council or Buchanan to process the 18 Lot plan to completion, it was always intended to abandon that plan and then process the contrived plans instead as separate, discrete subdivisions in the mistaken belief that these plans would facilitate avoidance of s9 of the Sale of Land Act and thereby legitimise the illegal sales made by Buchanan and PS&R. In relation to these nuts and bolts things the Council proper does not have intentions; it dances to the tune of the recommendations of the responsible officers, sometimes with platitude questions or comments. Having said this, the certain fact is that the series of contrived plans were so outstandingly irregular and contrived it is difficult to believe that the Councillors did not know or think anything of the reason or purpose for such outstandingly irregular plans and subdivisions and then with vacant mind separately resolve to separately seal each of those separate contrived plans of subdivision.
The well laid plans of the responsible officer and Buchanan came unstuck when I refused to pay the costs overrun and then the responsible officers, with $3,708 on their books, had to start lying in court and fabricating documents to conceal their dirty little deeds and to obtain a false judgment with more than a little help and connivance from an array of consistently dishonest lawyers, barristers and judges.
The Council not only did not process the genuine18 lot plan (if it existed at all) in several parts it in fact destroyed (or never had) that 18 lot plan to facilitate Buchanan’s plain intention to avoid his moronic view of section 9.
It is clear that the Council did seal each of the contrived plans in full knowledge that the services were not present and in full knowledge or with careless disregard for the fact that there was no lawful means of compelling construction of those services and this was the clearly and precisely elucidated cause of action, the gravamen, set out in the Statement of Claim and in my affidavits and in my oral and written instructions of the 2005 proceeding in relation to Tylden Rd. My barristers and solicitor were fully briefed on these things, Middleton misrepresented me as set out above. As I said to Osborn, “zero to do with unlawful plans”. This was the Tylden Rd cause of action discovered by me in 2000 and I discovered it as a consequence of the fraudulent rate claim which I have detailed here.
What is also clear, the discovery of the single Notice of Requirement was an act of overt perjury and fraud, had they discovered all seven of the Notices of Requirement related to the contrived plans and not the one single Notice fraudulently stated to be related to the 18 lot plan, which real Notice they couldn’t produce because it did not exist, they could not have even entertained the Magistrates Court proceeding, little wonder they refused to comply with Notice for Discovery and Orders for Discovery and then handed my barrister the documents at the Magistrates Court door when the matter was called. I find it most difficult to believe that their barrister and solicitors at the time were not completely aware of these things.
I suppose they thought it would be all over, win or lose, on that day, little did they think that I would go to the Supreme Court over $3,708.00 and they would have been correct if that was their assumption, I did not appeal because of the $3,708.00, they overlooked the fact that the principle was infinite but then again I suppose they have little concept or notion of such principle. Then of course, having deceived the Magistrates Court and the Supreme Court they were locked into continuing the fraud and deception and perjury in the County Court and it is exceedingly difficult for me to believe that their then solicitors, Maddock Lonie and Chisholm (now Maddocks), did not have a careful guiding hand, after all it was the Council’s Barrister who withheld the documents until the Magistrates Court door, it was Maddocks, not Greame Wilson or David Parkinson or other Council staff who prepared the carefully worded item 13 in their Affidavit of Documents and described a plan which was manifestly a locality plan as being the Plan sealed by the Council on May 21st 1980. (Ian Lonie was of the same firm – see chapter 6 for more on Lonie.) There is only two options, either the Council wholly deceived their various lawyers and the lawyers had no inkling of any of the above or the lawyers were party to the perjury and false discovery etc, I think the latter, they must have had an inkling at least. They are not nincompoops and they had access to the Council and Water Authority’s records and solicitor/client discussions.
Upon realising these things in relation to Tylden Rd it became obvious to me that sealing plans in these circumstances in fact facilitated avoidance of the “effect” of section 9 of the Sale of Land Act (as described above). About half a second later or less it occurred to me that this is exactly what occurred in relation to the Woodleigh Heights subdivision, this explained the reticulation plan which had been shown to me in the Practice Court, the Council had sealed the plans in full knowledge of or with careless disregard of the fact that the reticulation system was not present and there was no lawful means of compelling construction of that reticulation system, so with that in mind I again began to review what I had for evidence of this conduct in respect to Woodleigh heights.