Lying-Complete

The evidence. A strategy to represent the things in paragraphs 82, 85 and 86 of their Second Outline.

The things set out below could not happen by accident or happenstance.

The strategy was constructed around the content of the “Book of Pleadings”

Because the submissions of the Dixon, Delany and Ahern cannot be construed from the law or any other factual thing the lawyers did not first legitimately determine certain facts and then find that the “Book of Pleadings” supported those facts.

The evidence suggests that they first considered the “Book of Pleadings”, then determined how they could misrepresent it, then they constructed their misrepresentations around the “Book of Pleadings” and the strategy to deliver those misrepresentations.

My Statement of Claim in the 2005 proceeding alleged that the Council sealed the plans for the purpose of avoiding the “effect” of s.9 of the Sale of Land Act.

This Statement of Claim was given to Steven Mark Edward as solicitor for the Water Authority and Michelle Elizabeth Dixon as solicitor for the Council.

Steven Mark Edward was the only person in possession of the “Book of Pleadings”. The construction of the strategy and submissions around the “Book of Pleadings” did not occur by accident. Edward must have referred it to Greg Garde QC and then to the lawyers for the Council and the strategy was then constructed around the “Book of Pleadings”.

Quietly making the “Book of Pleadings” available

The strategy was in place before the strike-out summonses were issued. The Water Authority’s Summons was issued on 20th September 2005 and supported by an affidavit sworn by Steven Mark Edward some eight days earlier on 12th September 2005. This affidavit refers to his exhibits SME1 volumes 1 and 2 and SME2 volumes 1 to 4 for a total of 6 volumes amounting to some 1795 pages of documents. Each and every one of these documents was a proper court document relating to the two previous proceedings except for the “Book of Pleadings” which was secreted at pages 285 to 419 of those 1795 pages.

Although critical to supporting the summonses the affidavits sworn by Dixon and Edward in purported support of their respective summonses did not even allude to the matters and things constituting the “causes of action” supposedly complained of.

There was no reason, other than the strategy, for including the “Book of Pleadings” in the exhibits and no reason for most of the remaining 1795 pages other than secreting the “Book of Pleadings”. (Except maybe photocopy costs at $1.50 a page as a nice little earner)

The “Book of Pleadings” was a privileged document prepared by me for the exclusive use of my legal advisers and obtaining legal advice at the time of the 1988 Tylden Road proceeding. Steven Mark Edward improperly copied it when he was granted access to my personal files for the purpose of copying documents relevant to the 1995 Woodleigh Heights proceeding.

For the apparent purpose of legitimising his possession of this document Edward swore the affidavits set out on the Edward page.

None of the numerous affidavits or Outlines of Submission prepared for the hearing disclosed any reliance on the “Book of Pleadings”

Keeping the strategy secret.

The strategy depended upon having me think that they were referring to the true “cause of action” whenever they referred to the “cause of action” by use of phrases such as “the claims sought to be advanced“.

As the evidence discloses, each time they used such a phrase they were referring to the things constituting the pseudo “causes of action”..

Whenever it was necessary to refer to the cause of action Delany and Ahern used phrases such the following in their First Outline; [complete First Outline here]

• paragraph 66 “the claims sought to be advanced“
• paragraph 36 “fresh allegations“
• paragraph 43 “the claims made by the plaintiffs“
• paragraph 52 ” … the cause of action...”
• paragraph 54 ” … the allegations in the omitted paragraphs … “
• paragraph 55 ” … the events … “
• paragraph 68 “.. the claims he now seeks to advance … “
• paragraph 70 “…. the matters pleaded in the omitted paragraphs ….. “

In their minds however, these phrases were euphemisms for that pseudo “cause of action”. They knew that they understood one thing while intending and knowing that I understand another.

Dixon didn’t even use euphemisms; she just completely avoided any statement which would necessitate uttering or defining the things constituting the “cause of action” even in her affidavit which purports to support the strike out application.

Of particular note, Dixon’s Affidavit in purported support of the Summons set out a table showing the claims “common” to the previous proceedings and the 2005, proceeding, even this ensured no mention of the matters and things comprising the “new” claim.

Developing the “true lies” expressed in Delany and Ahern’s Outline of Submissions

For the purpose of providing verisimilitude to the submissions which they planned to make the lawyers developed a number of “true lies” which they included in their Outlines of submissions and then submitted to the Court and which were then relied upon and expressed as fact in the written Reasons of Master Efthim.

The first “true lie”

• Ms. Michelle Elizabeth Dixon of Maddocks, solicitors for the Council swore an affidavit dated 23rd September 2005 and which was sworn in purported support of the Councils strike-out summons. This document alleges “Plaintiffs seek to litigate issues which were the subject of earlier proceedings“. [see paragraph “C” on page 2 of complete affidavit ]
  • This document then goes on to make a comparative tables of common allegations between the previous proceedings and the 2005 proceeding. [see paragraph 22 on page 5]
  • Of specific note here is that the comparative table is expressly restricted to common allegations. It does not even purport to set out or compare the different and new allegations and does not even purport to define the “cause of action” in either of the previous proceedings or the 2005 proceeding.

Then at paragraphs 17 of the First Outline of Submissions dated 9th November 2005 authored by Mr. J. Delany S.C. and Mr. G. J. Ahern. Paragraph 17 states, in relation to Tylden Rd,

“The comparative table set out at paragraph 22 of the first Dixon summary Judgment Affidavit shows quite clearly that the allegations of fact made in the prior Tylden Road proceeding are the same allegations sought to be relied upon by the plaintiffs in this proceeding to constitute the cause of action relied upon and the relief sought“. [para 17 here]

On the face of it this is very “clever”. Swear an essentially true affidavit for false reason. Leave the lies to the unsworn document.

Delany and Ahern’s paragraph 22 makes essentially the identical misrepresentation in relation to Woodleigh Heights. [para 22 here]

The statements by Dixon, Delany and Ahern, at their paragraphs 17 and 22 are on the face of it false. The Dixon affidavit does not even purport to make a comparative table of anything except “common” allegations. The Dixon affidavit manifestly omitted to compare numerous paragraphs and does not set out the differences. Yet at their paragraphs 17 and 22 of the First Outline they assert that the allegations “to constitute the cause of action” are the same.

The second, third and fourth “true lies”

Dixon’s affidavit dated 28th October 2005 purports to analyse my affidavit of 18th October 2005. At her paragraph 4 she says;

“Based on my review of the Thompson Affidavit I understand Thompson to be saying that:

4.1 It was his review of the documents in the black folder (provided to him in June 1991) in August 2000 that caused him to issue the current proceeding; and

4.2 The first time that the complete version of the plans was made available to him was when they were supplied to him in the black folder.“

Now Dixon must have known that her first purported understanding at 4.1 was false. Just three paragraphs earlier, at her paragraph 3.6 she had said “He came to a number of conclusions in relation to Tylden Road as a result of “perusing the documents in the black folder…. and reviewing the documents tendered in the Magistrates Court and the evidence given by Wilson in that Court…..”.

She also must have known that her second purported understanding was false. It is simply not possible for a reasonable person to reach such an “understanding” from my affidavit. However the evidence indicates that Ms Dixon’s “understanding”(s), true or not, were essential to the strategy.

Dixon’s affidavit paragraphs 3.6 to 4 may be viewed here. Notice that at paragraph 3.6 and 3.7 she purports to make her conclusions from paragraphs 53(f) and 53(h) of my affidavit and sets out her “understanding” at her paragraph 4. At her paragraph 3.6 she says that I came to a number of conclusions and then at her paragraph 3.7 she says “Upon reaching those conclusions it became apparent” to me “for the first time …. that the Council had acted maliciously …….. that Wilsons evidence given in the Magistrates Court had the effect of concealing the Council’s true conduct ….. “

Now of significance is that Dixon omitted to transcribe the “conclusions” which she knows that I reached. These conclusions are set out at subparagraphs (53)(f)i) to (53)(f)(iii) of my affidavit, they are in subparagraphs of the very paragraph 53(f) that she referred to. These conclusions were;

1. “….. the Notice of Requirement … … had been falsely dated ….”
2. “… the plan of subdivision considered by the Council .. … .. had been abandoned …. “
3. “That the Notice of Requirement had in fact been fabricated …… “

Now, on the face of it these conclusions set out in my affidavit [ see paragraph 53)f) here] relate to the true “cause of action” which included that the Notice of Requirement related to the 18-lot plan considered by the Council on 20th February 1980 had never been served. The certainty is that these conclusions do not and cannot relate to that pseudo “cause of action”

We know however that Dixon, Delany and Ahern are developing misrepresentations related to that pseudo “cause of action”

At paragraph 36 of their First Outline Delany and Ahern develop and embellish Dixon’s “understanding” at her paragraph 4.1 and they say “.… in respect of the Tylden Rd land the ‘critical document’ from the black folder which led Mr. Thompson to reach the conclusions which are said by him to underpin the ‘fresh allegations’ he now wishes to advance ….. was the copy of the complete version of the plans. …. ” [para 36 here]

So at their paragraph 36 Dixon, Delany and Ahern

• use the euphemism” “fresh allegations“
• introduce the notion of “critical document“; and
• identify that “critical document” as being the “complete version” of the plans
• they assert that in my affidavit I say that this “critical document” underpins the “fresh allegations“.

These are, respectively, the second, third and fourth “true lies” which are being developed by them for the purpose of supporting their overt misrepresentations in relation to that pseudo “cause of action”

We know that there is no document capable of existing which underpins the “fresh allegations” as understood between Dixon, Delany and Ahern. It is also clear from my paragraph 53(f) that my affidavit refers to the things giving rise to the true “cause of action” and not that pseudo “cause of action” as understood by Dixon et al.

The fifth “true lie”

Ms Dixon then goes on to develop the fifth “true lie” herself before it is taken up and developed by Delany and Ahern.

After making her (false) assertion as to her “understanding” at her paragraph 4.2 she goes on at her extensive paragraphs 5 to 12.8 to demonstrate that I had possession of the “complete version” of the industrial plan prior to getting the “black folder” [Dixon complete affidavit here]

The purpose of this was to demonstrate that the words that she had placed in my mouth were false.

Delany and Ahern then pick up on Dixon’s “true lie” at their paragraph 36 where they say;

“……. as the objective documentary material exhibited to the first Dixon summary judgment affidavit and the 3 November Edward Affidavit establishes; in fact: (a) a copy of the complete plans was provided to the Plaintiffs solicitors in the prior Tylden Rd proceeding in may 1989 ….. ” (Note:- Delany and Ahern’s reference to the “first Dixon summary judgment affidavit” should be a reference to Dixon’s second affidavit dated 28th October 2005)

Delany and Ahern’s paragraph 36 also relies upon an affidavit sworn by Steven Mark Edward on 3rd November 2005 wherein Edward deposes that he undertook inspection of my discovered documents and in my possession was a copy of the complete version of the plans for the industrial allotments.

The fifth “true lie” is that Dixon, Delany and Ahern assert and establish that contrary to the words which Dixon put into my mouth at her paragraph 4.2 I was in fact provided with the “critical document” being the “complete plans” prior to getting the “black folder”. The lie being that I never even implied that I did not previously have a copy of the “complete plan”

Delany and Ahern then develop these “true lies” further when:

• at their paragraph 52 they say “….. Taking Mr. Thompson’s affidavit at face value whatever ‘fraudulent concealment’ or fraud is said to have occurred; the documents now relied upon to seek to establish the cause of action ….. have been in the possession of Mr. Thompson since 1991… “

• at their paragraph 54 they say “It is apparent from the Thompson summary judgment 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 plans’ ….. No other documents from the black folder are mentioned by Mr. Thompson in his affidavit as assisting him in reaching the conclusions he did.“

These paragraphs are overtly false and intended to deceive.

• At my paragraph 53)b) I clearly refer to “two versions of the plans for the industrial allotments … namely complete versions and clipped versions” from the “black folder”
• At my paragraph 53)c) I clearly refer to “copies of the residential series …… and these plans had also been clipped” from the “black folder”
• my paragraph 53)c)i) goes on to mention a number of documents not from the “black folder”
• the words “the allegations” in their paragraph 54 is a euphemism for that pseudo “cause of action” and no document capable of existing can “underpin” that pseudo “cause of action”.

Delany and Ahern then consolidate these “true lies” when at their paragraph 55 they say;

“The complete version of the plans for the industrial allotments is considered by Mr Thompson to be the ‘critical piece of the puzzle’ which enabled Mr. Thompson to comprehend fully the events which he now alleges took place twenty five years ago in 1980.“

So step by step Delany and Ahern evolve or morph Dixon’s “understanding” so that it became the “true lie” asserted by them at their paragraphs 54 and 55 where they say;

• That I consider the plan for the industrial allotments to be the “critical piece of the puzzle which enabled” me to “comprehend fully the events ….. “

In the circumstances and on the evidence I think it reasonable to conclude that this is a “damn lie”. They used euphemisms to conceal what they were asserting and the simple fact is, as I have said, there is no document capable of being the “critical piece of the puzzle which enabled” me, or them or anyone at all, to “comprehend fully” that pseudo “cause of action”

Delany and Ahern then rely on their “damn lie” to say at their paragraph 64 “…. after the black folder containing the ‘critical document’ was handed to Mr. Thompson ….. there could not be and was no intentional concealment thereafter of any relevant material on the part of the Council” and at their paragraph 66 they say ” ….. Council’s conduct in voluntarily providing to Mr. Thompson the black folder containing “the critical piece of the puzzle” is not conduct evidencing a consciousness of wrongdoing or involving dishonesty or moral turpitude ……. “

Delaney and Ahern then compound their “true lies” at their paragraphs 69 and 70 so that they become “true outright fabrications”. In these paragraphs they say that I fail to mention certain facts and they then go on to say;

• “the critical piece of the puzzle which led Mr. Thompson, according to him, to the conclusions …… is said to be the copy …. of the complete version of the plans… ” and “The picture Mr. Thompson seeks to paint in his … affidavit is that the first time the …. plans were available to him was when they were supplied to him in the black folder ……… That is not so“

Delany and Ahern then build upon their “true outright fabrication” when at their paragraph 71 they say;

• “What Mr. Thompson fails to disclose …. is that (a) the complete version of such plans were discovered .. … (e) Mr. Edward undertook inspection of documents …… those documents included a complete copy of the ‘complete’ versions of the plans ….. “

So the evidence indicates that Dixon’s “understanding” has been, carefully, purposefully and deceitfully transformed into my failure to disclose that I had this “critical document” was a discovered document. This is quite a transformation.

The purpose of this entire strategy of “true lies” was so as to enable Delany and Ahern to develop the “true outright fabrication” that the complete plan was “the critical piece of the puzzle” that openly disclosed that pseudo “cause of action” and it had been openly disclosed therefore there can be no concealment.

The entire strategy was predicated on the initial true lie of that pseudo “cause of action” and that pseudo “cause of action” further depended upon omission of reference to or consideration of section 97 of the Transfer of Land Act.

Delany and Ahern continue to develop this lie but I have said enough. Master Efthim subsequently relied upon these “true outright fabrications”, as intended by Dixon, Delany and Ahern they became true in Master Efthim’s mind. He specifically transcribed and relied on these “true lies” in his Reasons.

Why did Dixon, Delany and Ahern fix on the “complete plans”?

Dixon, Delany and Ahern could have fixed on any one or more of the documents or class of documents referred to in paragraph 53 of my affidavit but they did not, they elected to fix on the “complete version” of the industrial plans to give effect to their strategy which they had developed around that pseudo “cause of action” and the “Book of Pleadings”.

They could not fix on the “clipped versions” because they were in fact part of the concealment. of the true “cause of action”.

It just so happens that the “complete version” of the industrial plans were also 2-lot plans which Buchanan had “contrived” for the purpose of avoiding his mistaken understanding of section 9. So the fact is that these “complete versions” are definitely evidence of this futile attempt to avoid section 9. All that was left was for the lawyers, Dixon, Delany and Ahern to misrepresent to the Court that such plans did in fact facilitate avoidance of section 9 and therefore were evidence of that pseudo “cause of action” and that is exactly what they did. They overtly misled the Court in every respect.

All that was left after carefully and deliberately preparing the “true lies” set out above was to then overtly misrepresented the content of the “Book of Pleadings” to demonstrate my prior knowledge of that pseudo “cause of action” and then demonstrate that the Council had openly disclosed that pseudo “cause of action” to me by disclosing the “complete version” of the industrial plans. This is exactly what they did.

Master Efthim transcribed these “true lies” into his Reasons for Decision. The “true lies” were submitted under colour of the office of silk and submitted and represented as if they were fact.

No reference to the “Book of Pleadings”

As well as using euphemisms to avoid disclosing their true intent the lawyers also avoided all precipitative mention of the “book of pleadings” so as to conceal their intention to deceive the Court.

The entire basis of the planned misrepresentations was the misrepresentations made in relation to the “Book of Pleadings”

No one except Greg Garde and Sharon Burchell referred to the “Book of Pleadings”

Garde and Burchell’s reference was misleading and deceptive and also concealed the true intent of the lawyers.

At paragraph 49 of their Outline of Submissions dated 8th November 2005 Garde and Burchell refer to the “Book of Pleadings” and say;;

“… the handwritten notes contained in that document traverse the same subject matter as what the plaintiffs are seeking to agitate in the current proceeding …”; and

“The handwritten notes reflect what the first plaintiff has deposed to in his affidavit …. “. (my emphasis)

So in other words Garde and Burchell also use the euphemism “what the plaintiffs are seeking to agitate” and they specifically assert that the notes in the book of pleadings “reflect“, or in other words are consistent with, what was in my affidavit.

On my understanding of the euphemism they specifically represented to me that the “book of pleadings” was consistent with my affidavit and the true “cause of action”

In the premise that their understanding of the euphemism was that pseudo “cause of action” then their paragraph 49 was deceptive.

On the evidence there was no other purpose for them introducing the “Book of Pleadings” other than to facilitate the misrepresentations in respect to that pseudo “cause of action”. They certainly did not introduce it to demonstrate what they said to me at their paragraph 49, that the “Book of Pleadings” was consistent with the true “cause of action” and consistent with my affidavit.

Garde and Burchell’s paragraph 49 was an essential part of what appears to be a very carefully orchestrated strategy. Garde and Burchell had to introduce the “Book of Pleadings” while concurrently not disclosing the intended use of the “Book of Pleadings”. Had they disclosed what Dixon, Delany and Ahern intended to and subsequently did represent in relation to the “Book of Pleadings” then their strategy would have been at an end.

Did the strategy included a contingency plan

By very carefully using euphemisms and avoiding defining the matters and things constituting the “cause of action” it was left open to Delany and Garde to make any submission they wished depending upon what became precluded by the submissions of my barristers, Mr. John Middleton QC and Mr, Neil Adams.

On day one of the hearing Delany introduces the “true lies”, gives clue and omits reference to section 97.

At the hearing Delany led off, he made submissions in accord with the “true lies” but continued to use euphemisms as had been done in his outline. For example see circled text from the transcript here, here and here.

However Delany began to give a clue as to where he was heading but said nothing of substance in relation to these clues;

Each and every one of these representations by Mr. J. Delany S.C. is manifestly false.

The representations which were made before Middleton’s submissions.

As I show on the Master Efthim page. Master Efthim swallowed these misrepresentations hook line and sinker.

Were Delany’s misrepresentations deliberate or as a consequence of unimaginable neglect?

It is unimaginable that none of either Dixon, Delany, Ahern, Edward, Garde and Burchell read section 9 of the Sale of Land Act. It was photocopied into the very pages of the “Book of Pleadings” that they specifically quoted from and referred Master Efthim to.

It is also unimaginable that not one of them understood section 9.

In the event that at least one of them understood the law then it is my opinion that there is no alternative other than to believe that the lawyers intended to deceive.

In the event that not one of the lawyers bothered to read or understand the law then there remains an intention to deceive together with culpable neglect.

Based on the evidence, the probability is that not only were Delany’s misrepresentations deliberate they were the culmination of a carefully planned strategy to deceive and that is the opinion I have concluded.

Had Dixon, Delany and Ahern held a belief, mistaken or otherwise, as to the correctness of their planned submissions they would have made those submissions up front, on page 1 of the transcript of the first day. In addition they would have put them up front in their First Outline of Submissions and they would not have omitted section 97.

• Clearly the strike-out application depended upon identifying the “causes of action” in respect to each of Tylden Rd and Woodleigh Heights and demonstrating that they were known, disclosed etc. As detailed above none of the lawyers identified the “causes of action” and Delany and Ahern and Garde and Burchell, under instruction from their respective solicitors, used euphemisms rather than do so.
• The submissions in relation to Tylden Rd depended upon the misrepresentations made in relation to the law and the “Book of Pleadings”
• Steven Mark Edward had without my knowledge or consent wrongly copied this privileged document at my residence in 1999.
• Steven Mark Edward swore an affidavit that he had copied “discovered” documents. The “Book of Pleadings” never was a “discovered document”
• Steven Mark Edward Exhibited some 1795 pages of documents in six loose leaf folders. Each and every one of these documents was a proper court document relating to the two previous proceedings except for the “Book of Pleadings” which was secreted at pages 285 to 419 of those 1795 pages.
• The “Book of Pleadings”, although secreted within 1795 pages, was exhibited by Mr. Steven Mark Edward for the purpose of the intended submissions.
• Steven Mark Edward swore a number of affidavits where he referred to exhibited documents. None of these affidavits referred to the “Book of Pleadings” or identified any “cause of action”
• Ms. Michelle Elizabeth Dixon swore a number of affidavits, none of these identified any “cause of action” or mentioned or alluded to the “Book of Pleadings”
• Mr. J. Delany S.C. and Mr. G. J. Ahern authored an Outline of Submissions which very carefully did not include an inkling of their proposed submission.
• Mr. Greg Garde Q.C. and Ms. Sharon Burchell authored an Outline of Submissions which as detailed below was an abject nonsense and did not allude to the proposed submissions however the Outline did deceptively introduce the “Book of Pleadings”
• Each of Ms. Michelle Elizabeth Dixon, Mr. J. Delany S.C. Mr. G.J. Ahern, Steven Mark Edward, Mr. Greg Garde Q.C. and Ms. Sharon Burchell must have been aware of the planned submissions.
• At least one of the bevy of lawyers must have read and understood section 9 of the Sale of Land Act and thereby understood that the proposed submission was false and misleading.
• The true and correct interpretation of section 9 was set out in the “Book of Pleadings” itself with relevant text underlined and pointed to,
• Mr. Greg Garde and Mr. J. Delany employed what may well be called a tag team effort so as to make their intended final submissions contingent upon what may have been submitted by Mr. Middleton. The tag team operated as follows;
  • Mr. Delany led off on day one. He spent the better part of the day saying nothing, he alluded to the “cause of action” as being avoidance of section 9 by means of 2-lot plans of subdivision yet he did not put an argument and did not refer to the “Book of Pleadings”
  • Mr. Greg Garde then made his submissions; he introduced the “Book of Pleadings” and read from it but, in line with the deceptive introduction in his Outline, he did not identify any “cause of action” and said nothing of substance at all in relation to the “Book of Pleadings”.
  • My Q.C. Mr. John Middleton then made his submissions. Astonishingly John Middleton did not identify the “cause of action” and carelessly represented that 2-lot plans do facilitate avoidance of section 9.
  • In purported reply to Middleton, at page 88 of the transcript of the second day, Delany, for the first time, made his misrepresentations in relation to the “causes of action” and the “Book of Pleadings”
• Delany’s last representation, “This is the critical piece of information you’re being told that this poor man didn’t find out until 2000 ….” was the point where the entire strategy culminated. This was plainly planned before the summonses were issued. The law, the “Book of Pleadings” and the Amended Statement of Claim all expressly set out that this representation was false

In other words the lawyers for the Council and Water Authority very carefully concealed the fact that their strike-out application depended upon;

• overt (mis)representations as to what constituted the “causes of action”
• overt (mis)representations in relation to the content of the “Book of Pleadings” and
• overt (mis)representations in respect to section 9 of the Sale of Land Act.
• overt (mis)representations as to my affidavit.
• overt (mis)representation by omission of reference to section 97.

As I have set out above the various affidavits and outlines of submissions by these lawyers were contrived in such a manner as to conceal their planned (mis)representations and to lead me and my lawyers to believe that that their case depended upon a comparison of the previous proceedings with the 2005 proceeding and an assertion by them that the true “causes of action” had been or could have been previously alleged.

I do not believe that Delany held a belief as to his explanation of section 9 which he made at page 40 of the transcript of the first day. It is more probable that he overtly represented it so as not to preclude his intended (mis)representations in relation to it. Delany had read section 9, he is a Senior Counsel, and he understood it.

Essential to the strategy was that the lawyers not define the “causes of action”

As detailed above the lawyers did not identify or refer to the “causes of action” except by using euphemisms. Had they defined the true causes of action in any one of their numerous affidavits and Outlines then that would have absolutely precluded the strategy.

Had they defined the cause of action as they intended to misrepresent it then they would have been exposed in one second and again their strategy would have been precluded.

The strategy depended upon not defining the “causes of action” in any one of their documents or at all.

So we have this astounding spectacle. These lawyers, Dixon, Delany, Ahern, Edward, Garde and Burchell all acting in relation to a strike out proceeding which depends upon defining the matters and things constituting the “causes of action” so that they can demonstrate that the “cause of action” as defined offends one or more of the Limitation of Actions Act, res-judicata and/or Anshun and/or is in fact precluded by Terms of Settlement yet not one of them alluded to let alone defined that cause of action.

If any one of the lawyers had defined the cause of action as being that represented by Delany in his “last representation”, or anything else for that matter, then the game would have been over. For the success of the strategy the lawyers had to conceal what they knew to be the culmination of the strategy and they collectively and individually did conceal what they knew.

Was the strategy of the lawyers a bald-faced money making exercise?

Established law requires a case to be made out. These lawyers did not make out their case; they overtly concealed it until the last 5 minutes of the second day of hearing. Had they set out it in their numerous affidavits and outlines of submission it would have been bowled over by me in one second.

By concealing their intended (mis)representations the lawyers have (for the moment) earned themselves almost half a million dollars. Had they honestly believed that they had a great case and had set out that case before filing their strike-out summonses or early in the proceeding they may have only earned a couple of hundred dollars or at best a couple of thousand.

Was the strategy of the lawyers a contingency strategy?

As I have set out above, each of the numerous affidavits and outlines of the lawyers very carefully avoided setting out any “cause of action”. In addition neither Delany nor Garde said anything at all of substance in their respective initial submissions. They did however lay seeds. As set out above at pages 40 and 45 of the transcript of day one Delany said he understood the complain to be that “There were further plans lodged and it’s said this was for the purpose of getting around s.9 of the Sale of Land Act ………” and Mr. Garde read from the “Book of Pleadings” but said nothing at all of substance in relation to it.

This then left it open to Delany and Garde to make any final submission they wished contingent upon what may have been said by Mr. Middleton.

As the various affidavits and outlines and initial submissions by the lawyers did not forewarn either Mr. Middleton or me of their intended (mis)representations Mr. Middleton did not say anything which precluded their intended (mis)representations. As a consequence it was left open to Mr. Delany to make his (mis)representations in relation to section 9 of the Sale of Land Act and the “Book of Pleadings” and to represent that these things were and disclosed prior knowledge of the “cause of action”.

Mr. Delany must have had a fall back argument prepared and to be put in the event that Mr. Middleton had competently put the true meaning of sections 9 and 97 and competently set out the true “cause of action” and thereby precluded the (mis)representations made. We are left to wonder what that fall back position may have been.

Plainly, if Delany and his instructing solicitors held a belief as to the strength and correctness of their planned submission there would have been no need to omit either it or definition of the “causes of action” from their numerous affidavits and outlines and they would have put it up front in the first five minutes of day one of their submissions instead of waiting till five minutes before the bell on the second day.

It may be that lawyers and Judges have a different value system to me. On my value system, if the lawyers and courts consider this to be an acceptable way to conduct court then in my opinion court is a sham and the proceedings before Master Efthim and Osborn were overt shams.

The reason for the “true lies”

The purpose of the “true lies” exercise was to deceitfully establish that the so called “critical document” was evidence of the “cause of action” and in relation to that pseudo “cause of action” as misrepresented by Delany there is no doubt that it is. The so called “critical document” is itself a 2-lot plan, contrived by Buchanan to avoid his mistaken view of section 9. It is plainly evidence of that. I knew that and so did Delany hence the “true lies”

The so called critical document however contains no evidence at all as to the true “causes of action” and my affidavit does not even begin to purport to say that it did. It could only be Dixon’s genuine “understanding” of the pseudo “causes of action” intended to be put by Delany that led to her “understanding” of my affidavit, Delany and Ahern picked up from there and converted her convenient “understanding” of my affidavit into the “true lies” put by them to the court under instruction from Dixon.

Master Efthim relied verbatim on the overt misrepresentations of Dixon, Delany and Ahern as assisted by Garde, Burchell and Edward.

See the Master Efthim home page.

The Appeal, the cats out of the bag, the lawyers can now define that pseudo “cause of action” which they carefully omitted from their earlier documents.

At the Appeal before Justice Osborn, after the Court was convened, Delany and Ahern provided me with a new and revised Outline of Submissions.

As detailed in the box above, this new outline says the things which Delany, Ahern and Dixon could not and did not say at the time of making their earlier affidavits and outlines. It actually defines what they say to be the “cause of action”, the pseudo “cause of action”. Initially it has a preamble about the Judgment of Master Efthim followed by a regurgitation of the “true lies” but then immediately under the heading “No concealment of the cause of action: book of pleadings” Delany, Ahern and Dixon say at their paragraph 82:

“The plaintiffs key contention in the current proceeding ….. is that the initial sealing of the plans of subdivision was unlawful or illegal and that the plans were sealed in such a way so as to avoid the operation of section 9 of the Sale of Land Act 1962 (Vic)“

Then at paragraph 83, as a continuing slant on the “true lies”, they falsely represent:

“The plaintiffs contend that they only worked out that the initial sealing of the plans of subdivision was unlawful or illegal when Mr. Thompson open the ‘black folder’ in August 2000 and reviewed the copy of the complete plans for the industrial allotments.“

Then at paragraph 84:

“However, what is clear from a book of pleadings annotated by Mr. Thompson … .. is that Mr. Thompson had formed the view prior to the settlement of the prior Tylden Rd proceeding in 1991 that the initial sealing of the plans was unlawful. The ‘new’ matters that the plaintiffs are now seeking to rely upon .. .. have been known to them since prior to 1991 …. “

Then at paragraph 85:

“The following extracts are quotations from Mr. Thompson’s handwriting in the book of pleadings

(a) this is the critical new fact that the plaintiffs contend that they were unaware of until August 2000;

‘Notwithstanding it was illegal Buchanan had sold at least two of the allotments (notices of disposition opposite). In order to avoid the provisions of section 9 of the Sale of Land Act which at that time prevented the sale of allotments on subdivisions of more then two allotments (etc) Buchanan then lodged seven separate plans which were contrived to create several subdivisions of two lots each‘”

Delany, on the spot, on the “cause of action”.

Early in the submissions before Justice Osborn, the following exchange took place between Justice Osborn and Delany:

Osborn: “…..what has to be concealed is the cause of action, in a sense that begs the question what the cause of action is.”

Delany: “Well we’ve assumed that the cause of action is there.” (my emphasis)

Osborn “Yes. As pleaded“

Delany: “Well, as pleaded, or in the affidavits.“

Osborn: “The complaint is that made in the affidavits?“

Delany: “Yes.“

Now the fact is that these lawyers, Delany, Dixon etc had mounted strike out proceedings where they simply avoided all mention of “causes of action” and they had used euphemisms right up until five minutes before the bell at the hearing before Master Efthim. Then after obtaining the Judgment of Master Efthim on their misrepresentations as to that pseudo “cause of action” they had come to Osborn’s court and set that pseudo “cause of action”, in black and white at paragraphs 82 and following of their Second Outline of Submissions. Not only had they set it out they did so under a bold heading.

Then when Mr. J. Delany S.C. was placed squarely on the spot in court Delany could not say, or didn’t want to say, what the “cause of action” was [see transcript pages 44 and 45 at star and as circled]. He had just obtained a Judgment from Master Efthim by asserting that the cause of action was set out in the “Book of Pleadings” and was known to me.

Why would he be so reticent?

Garde, Burchell and Edward on the “causes of action”

Mr. Greg Garde AO RFD QC and Ms Sharon Burchell prepared a document entitled “Outline of Submissions of the Second Defendant for 14th November 2005”.

Paragraph 1 of that document states, “The Plaintiffs allege that they are owners of certain parcels of land…“

The truth: The Tylden Rd land was sold in 1983, and the Woodleigh Heights land in 1989, because of the fraud of the Council and Water Authority. Paragraph 1 is false.

Paragraph 3 states, “The Plaintiffs allege that there was a requirement imposed by the Shire of Kyneton…“

The truth: Paragraph T5 of the 2005 Amended Statement of Claim plainly alleged that the Notice of Requirement was never served. Paragraph 3 is false.

Paragraph 5 states, “…Woodleigh Heights land, … the land was sold by public auction by …. (AGC) on 17th November 1984.”

The truth: Paragraph W47 of the Amended Statement of Claim clearly alleged that the proposed auction by AGC was cancelled due to the fraud of the Council and Water Authority. Paragraph 5 is false.

Paragraph 6 states, “…the Plaintiffs say…..the auction scheduled for … 1985 was cancelled….the Plaintiffs sold their land in 1989 …”

The truth: Paragraph W71 of the Amended Statement of Claim clearly states Esanda, not the plaintiffs, sold the land. In addition, the auction scheduled for 1985 could not be cancelled if the land had already been sold (according to paragraph 5 of their Outline) in 1984. And how could the land have been sold in 1989 when paragraph 1 claimed I still owned the land? Paragraph 6 is false.

This document by Greg Garde and Sharon Burchell is a manifest nonsense. It was prepared without any regard for consistency let alone truth and accuracy however it is entirely consistent with the documents prepared by Dixon, Delany and Ahern in that it completely avoids setting out the “causes of action”

Paragraph 36 purports to make a table comparing the 1988 Tylden Rd proceeding with the 2005 proceeding. The critical difference between the 1988 proceeding and the 2005 proceeding is that in the 1988 proceeding it was alleged that a Notice of Requirement was served while the 2005 proceeding alleged that no such notice was served. Garde and Burchell omit the critical paragraph 7 and fail to make this comparison.

Paragraph 44 purports to set out a table comparing the 1995 Woodleigh Heights proceeding with the 2005 proceeding. The omissions? Yes you guessed it; they omit to compare all paragraphs related to the 1978 water supply which constituted the “cause of action”. [compare paragraphs 13 and 14 of the 1995 Woodleigh heights proceeding with paragraph W10 of the 2005 proceeding 4th star]

Garde and Burchell submitted a repeat of the above described Outline to Osborn in an Outline of Submissions dated 30th October 2006.

Greg Garde stood up in Efthim’s Court and Osborn’s Court and won on each occasion with this $#*@ and other misrepresentations.

Garde and Burchell were plainly not relying on their Outline, it was just garbage. They had prepared the way for Delany’s misrepresentations and that’s all they needed to do.

[The Amended Statement of Claim in the 2005 proceeding may be viewed here. The complete Outline of Submissions by Garde and Burchell may be viewed here]

Additional considerations

The Amended Statement of Claim alleged at paragraph T7 that the Tylden Rd plans had been sealed for an ulterior purpose, namely to avoid the “effect” of section 9 of the Sale of Land Act. An essentially identical allegation was made at paragraph W8 in relation to the Woodleigh Heights plans. There were no unlawful plans, 2-lot or otherwise, at all related to Woodleigh Heights. The word “effect” was very carefully included in both paragraphs.

Not being able to explain this in terms of their respective misrepresentations both Delany and Middleton, in essentially identical manner, glossed this critical aspect over and avoided it by diverting attention to the Tylden Rd 2-lot plans.

• At the time of making his misrepresentations on page 40 of the transcript of day one before Master Efthim Delany was reading the Woodleigh Heights section of the 2005 Amended Statement of Claim and reached paragraph W8 which contained the allegation of avoiding the “effect” of section 9 in relation to Woodleigh Heights. There were no 2-lot plans associated with Woodleigh Heights and Delany was plainly aware of that fact. Being unable to explain his fabricated explanation of section 9 in relation to Woodleigh Heights he instead explained it in relation to the Tylden Rd land.
• At page 43 Middleton was making submissions in respect to Woodleigh Heights [first circled text], then he says to Master Efthim, “if I can just take you to two exhibits which perhaps graphically illustrate the way in which this misconduct arose” [underlined text on first page]. Then, exactly as Delany had done, Middleton spoke about the material related to Tylden Road. [second, third and fourth circled text]

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The true “cause of action”, in relation to Tylden Rd, arose from the fact that the 18-lot plan was abandoned and that the Notice of Requirement related to that plan was never served. Does anybody believe that the complete industrial plan [here] contains any evidence of that at all?

The affidavit of Michelle Elizabeth Dixon dated 23rd September 2005

Ms. Michelle Elizabeth Dixon of Maddocks swore this affidavit which purports to make tables of allegations common to the previous proceedings and the current 2005 proceeding.

In relation to Tylden Rd, Dixon’s affidavit says that paragraph 7 of the Statement of Claim in the 1988 Tylden Rd proceeding alleged that a Notice of Requirement was served on or about 20th February 1980 but because the comparative table restrains itself to common allegations it omits to compare this with the paragraph T5 of the 2005 proceeding which alleges the direct opposite. [see paragraph 7 here and paragraph T5 here and table item (ii) and (iv) at page 6 of Dixon’s affidavit] [compare Dixon’s assertion with the Reasons of Justice Osborn where Osborn omits reference to paragraph 7 and Osborn asserts that the Amended Statement of Claim specifically alleges that no Notice of Requirement was served] See also above at the “true lies” heading.

In relation to Woodleigh Heights, Dixon’s affidavit omits to compare the paragraphs relevant to the “cause of action” of either the 1995 Woodleigh Heights proceeding or the 2005 proceeding. The “cause of action” of the 1995 proceeding is specifically found at paragraphs 13 and 14 of that proceeding where it is specifically alleged that the 1978 water supply and water mains were present and that I had an entitlement to that water supply whereas paragraph W10 of the 2005 specifically alleges that the 1978 water supply was not present. [see 4th star]

In other words Dixon’s affidavit was carefully contrived to restrict itself to common elements and therefore it completely omitted the paragraphs pertinent to comparison of the true “causes of action”.

The affidavit of Michelle Elizabeth Dixon dated 28th October 2005

Ms Dixon swore this affidavit in reply to my affidavit of 18th October 2005 and purports to factually analyse my affidavit. Of relevance, she purports to state what is in paragraphs 53(a), (b), (c) and (f) of my affidavit and then goes on to purport to state my conclusion at paragraph 53(h) however Dixon omits what is in 31 paragraphs and subparagraphs. [details]

These omitted paragraphs, surprise, surprise, contain the details of the false evidence in the Magistrates Court and what I discovered in August 2000.

The “true lies” detailed above were derived from this affidavit and these “true lies” were then used to form the basis of the misrepresentations made to Master Efthim and Justice Osborn. [see at top of this page for complete details]

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Even if Garde, Edward, Delany, Ahern, Dixon et al. carelessly or mistakenly made their misleading submissions before Master Efthim; they were made fully aware of that error upon receiving my submissions to Justice Osborn. At that point, they had the option of righting that wrong or holding the line. They chose to hold the line and Justice Osborn accommodated them.

At the time of writing his Reasons and making his Orders, Justice Osborn had adequate of the above set out before him. Faced with exposing these “damn lies”, Justice Osborn chose to ignore, deny, conceal and or make wrong my specific allegations and thereby perpetuate the fraud.

Garde and Edward made application to the Court of Appeal for indemnity costs on the grounds that my allegations regarding their conduct were unfounded. Adequate evidence of the “damn lies” was before Justices Neave and Mandie who declined to adjudicate on that question, and instead rewarded Garde and Edward with indemnity costs on their own grounds.