The 2005 Proceeding
In the following material I may be repetitious and perhaps a little pedantic but my allegations are exceedingly serious and demand detail.
In August 2000, by tortuous process and damn good detective work now described here I discovered that the fact was and the mind of the Council was that the Council had;
abandoned the Tylden Rd 18 lot residential Plan and associated resolutions and not processed that plan any further after 20th February 1980;
had NOT served the Notice of Requirement which it swore on oath in evidence in the Magistrates Court and the Supreme Court had been served on the 20th February 1980.
This discovery meant that evidence given in the Magistrates Court and Supreme Court was false and that discovery in the 1988 proceeding had been fabricated to deceive and that the eight separate admissions to Paragraph 7 of the Statements of Claim in the County Court were false and intended to deceive.
This discovery also meant that the Terms of Settlement in the 1988 proceeding had been obtained fraudulently.
It is clear that Buchanan’s intention was to abandon the 18 lot plan which he had filed and instead process the contrived plans as separate and discrete plans and subdivisions for the purpose of avoiding his mistaken view of s.9. To maintain the 18 lot plan on foot clearly left him in breach of his mistaken view.
This discovery also explained why it was that the Council had given a locality plan in evidence in the Magistrates Court and Supreme Courts and represented it as the 18 lot plan of subdivision considered by the Council on 20th February 1980 and it also explained why the Council had discovered the same locality plan in initial discovery in the 1988 proceeding and when forced to further discovery it separately discovered a contour plan with a handwritten note “Original Sealed 21st May 1980” on it.
The fact must be that the Council had disposed of the “Original” 18 lot plan of subdivision, if such plan was in fact filed at all. The fact is the Council had been obliged to exhibit that “Original” in three separate proceedings and it had not. A developer is required to file three “Original” plans when he gives Notice of Intention and at least one of these is for the Council records yet the Council did not exhibit any such “Original”; it instead exhibited a locality plan in all three proceedings and then when forced to further discovery in the 1988 proceeding it exhibited a contour plan with a purposely misleading handwritten note on it and in their Affidavits of Documents the Council and Water Authority had overtly miss-described these two 18-lot “plans”.
The Council’s MIND was in fact in exact accord with Buchanan’s, it had not processed the 18 lot plan any further after 20th February 1980 and had not served the Notice of Requirement which it had resolved to serve in relation to that plan because it knew full well that Buchanan was going to file the contrived set of plans and those contrived plans were to be processed in substitution for, in lieu of, instead of, the 18 lot plan and processed as discrete plans and subdivisions and absolutely not as parts of that 18 lot plan. The Council either never had the genuine 18 lot plan of subdivision or it destroyed the file and plan so that in accord with Buchanan’s manifest corrupt intention to avoid his mistaken view of s.9 each of the contrived plans were in fact discretely processed.
This discovery changed everything. This discovery disclosed that THE MIND of the Council was not and never had been as asserted by it. The Council had not processed the 18 lot plan in several parts as asserted by it; the Council had in fact abandoned the 18 lot plan and associated resolutions and not processed that plan any further after 20th February 1980 and had not issued or served the Notice of Requirement related to it. The Council had instead, in accord with Buchanan’s scheme, processed each of the contrived plans as separate and discrete subdivisions, discrete from each other and from the 18 lot plan for the apparent purpose of facilitating Buchanan’s manifest intention to have each of those plans processed as discrete plans and subdivisions. Whether or not the Council was also aware of Buchanan’s intention and purpose of avoidance of his inane notion of s.9 is irrelevant. Buchanan’s intention was discrete plans and discrete subdivisions and the Council facilitated that intention; the Council processed each plan and subdivision discrete from one another and unrelated to the 18 lot plan and associated resolutions.
Because the fact was and the mind of the Council, or at least the responsible officer, was that the contrived plans were processed discretely and separate from and not as parts of the 18 lot plan it could not be said that the fact was, or the mind of the Council was, that either the contrived plans or the separate Notices of Requirement related to those contrived plans had inherited any authority from the approvals or permits or resolutions related to that 18 lot plan and particularly not from the Council’s resolution of 20th February 1980 to impose a “Requirement” in respect of the 18 lot plan.
This meant that even if the Notice of Requirement related to the 18 lot plan had been served, which it hadn’t, it did not impose a requirement in relation to the contrived plans and as there was no separate resolution of the Council to either impose a requirement or serve Notice of Requirement in relation to each or any of the contrived plans the separate notices which were served were without authority and had not been simply backdated to accord with a legitimate associated resolution but instead had been fabricated to appear to get authority from the resolution related to the 18 lot plan so there was no lawful requirement imposed or lawful Notice of Requirement served at all in relation to any of the contrived plans.
This meant that the Council had sealed each of the contrived plans without services present and without lawful means of compelling provision of those services. This in turn meant that the allotments were unusable and could not be lawfully made usable at the time that the Council sealed the plans.
This invoked the provisions of section 569B(7)(a)(iii) of the then Local Government Act which prohibited the Council from sealing plans of subdivision if the allotments were unusable.
In addition because the contrived plans did not inherit any authority from the 18 lot plan none of them had a planning permit and this invoked the provisions of section 569B(7)(d) which also prohibited the Council from sealing the plans in the absence of a Planning Permit.
In addition because it was Buchanan’s intention to carry out an 18 lot subdivision and not a series of contrived 2 lot subdivisions each of the plans did not show all of the roads or all of the roads which Buchanan intended to set out and on Buchanan’s intention this placed each plan in breach of s.569A(1)(a) and (b) of the Local Government Act which required the plans to show all of the allotments into which the land is to be divided and all of the roads to be laid out. On Buchanan’s intention the plans did not show all of the lots or all of the roads.
However because these plans and subdivisions did not facilitate voidance of any law and as each plan did in fact constitute a completely lawful separate subdivision they did show all of the allotments and all of the roads pertinent to each discrete plan and each discrete subdivision.
So on Buchanan’s intention each plan was in breach of s.569A(1)(a) and (b) and on Buchanan’s intention each plan was in breach of the provisions of the Local Government Act and it could be said or argued that this attracted the operation of s.569B(7)(ii) which required the Council to refuse to seal the plans if they did not comply with the Local Government Act.
The sealing of the Plans setting out unusable allotments was in breach of section 569B(7)(a)(iii) and this created a right or cause of action because it was the fact that the lots were unusable and there was no means to lawfully make them usable which caused my loss and damage.
The possible sealing in breach s.569B(7)(a)(ii) and the unequivocal sealing in breach of s.569B(7)(d) did not and could not cause and loss and damage and could not therefore form any part of the “cause of action” however these two additional breaches did go to mala fides or bad faith.
This new knowledge also meant that the Council had induced me to sign Terms of Settlement in the 1988 proceeding while knowing full well it was concealing material facts from me and each of the Courts and additionally this new knowledge presented me with a new “cause of action” to recover the losses and damages which I could not recover at the time when all I could show was mistake of law and had signed Terms of Settlement while the true facts remained deliberately and deceitfully concealed from me. This itself was a further fraud by this incorrigibly corrupt Council and Water Authority.
The change was that I could now demonstrate that the fact was and the Council’s mind was not as asserted by it. The Council had in fact processed the contrived plans as discrete subdivisions and intending them to be discrete from the 18 lot plan in exact accord with Buchanan’s criminal intent which was a number of discrete two lot subdivisions for the purpose of avoiding his mistaken view of s.9.
The new “cause of action” or gravamen for Tylden Rd was subsequently defined by me in an Affidavit as; that the Council;
“Sealed the plans of subdivision in direct contravention of its statutory duty to refuse to seal them (See section 569B(7) of the Local Government Act 1958)
Unlawfully sealed the plans in full knowledge that:-
(a) No services were present
(b) There was no lawful means of ensuring the provision of those services.
(c) The allotments so created were unusable and there was no lawful means of ensuring that they be made usable.
(d) There was no planning permit permitting any one of the subdivisions created.
(e) Each of the subdivisions created was in breach of the Shire of Kyneton Interim Development Order then in place. “
This precisely defined the cause of action and the underlying facts of the cause of action,
items (1) precisely defined the unlawful act which was the breach of s.569B(7)
(2)(a), (b) and (c) were the loss and damage causing circumstances which invoked s.569B(7)(a)(iii),
items (2)(d) and (e) merely went to mala fides but also invoked s569B(7)(d)
The root factors of the new Tylden Rd “cause of action” were that the Council;
had in fact abandoned the 18 lot plan and associated resolutions and not processed that plan any further after 20th February 1980 and;
had not served the Notice of Requirement in relation to the 18 lot residential plan and;
had processed the contrived series of plans as discrete subdivisions and not as parts of the 18 lot plan.
Did not make a resolution to impose a “Requirement” in respect of any one of the contrived plans.
These root factors had been concealed by the overt fraud of the Council and Water Authority including perjury, falsified documentary evidence and false admissions and falsified discovered documents and additionally was the total antithesis of what was pleaded in the previous 1988 proceeding and therefore did not breach the principles known in legal jargon as Anshun and Res Judicata which are fancy ways of saying that they could have been pleaded earlier or had previously been adjudicated or judged.
These root factors did not constitute or comprise the new “cause of action”; they gave rise to it.
As explained below the unlawful act of the Council which constituted the new “cause of action” was the breach of s59B(7) which in the circumstances alleged required the Council to refuse to seal the plans
So, on the face of it, this new cause of action was bullet proof. There was no legitimate basis for an application by the Council and/or Water Authority for summary dismissal.
On the strength of these things solicitors Baldock Stacy and Niven and junior Barrister Neil Adams and the famous QC, Mr. Lex Lasry agreed to work for a cut of the substantial expected winnings so to speak.
Lex Lasry (now Justice Lasry) settled and signed the Statement of Claim and the new proceeding was initiated in 2005.
The Statement of Claim alleged the underlying factors of the cause of action as defined above and the factors demonstrating further mala fides also alleged;
At paragraphs T5 and T6; that the Council had not further processed the 18 lot plan after 20th February 1980 and the Council omitted to serve the Notice of Requirement which it had resolved to serve.
At paragraph T7; that the Council sealed the plans for an ulterior purpose, namely to avoid the effect of s.9 of the Sale of Land Act 1958….. (my emphasis – PURPOSE – very important)
At paragraph T9; that the sealing was in breach of s.569B(7)(d) because;
Buchanan had not complied with the Act by not giving proper Notice of Intention and the plans did not show all of the allotments or all of the roads
That there was no planning permit
At paragraph T12; that the Council had fabricated the Notices of Requirement related to the contrived plans.
At paragraph T15; that the Council had falsely represented to the Registrar of Titles that the allotments were usable for the purposes of s.569B(7)(a)(iii)
At paragraph T16; that relying on the representations of the Council at T15 the Registrar of Titles approved the plans and at the time of approving them he was deceived as to the true nature of the allotments in that he was unaware that the allotments were not serviced and he was not aware that there was no lawful means of requiring any person to provide those services.
Paragraphs T5 and T6 described the circumstances giving rise to the things alleged at T12, T15 and T16
Paragraph T7 defined the ulterior purpose of sealing
Paragraph T9 defined non loss causing mala fides
Paragraph T12 was a function of abandoning the 18 lot plan as alleged at T5.
Paragraph T15 defined the loss causing action of the Council
Paragraph T16 defined the consequences of the things set out in paragraph T15
Shortly after service of the Statement of Claim the lawyers for the Council and Water Authority each issued summonses seeking summary dismissal on each of the grounds Anshun, Res Judicata and that the “cause of action” had not been fraudulently concealed and was therefore caught or barred by the Limitation of Actions act, i.e. the colloquially known statute of limitations.
Now, for the reasons I have set out above the “causes of action” in this new proceeding was bulletproof yet here was the lawyers for the Council and Water Authority mounting these strike out applications.
Although I did not know it at the time I now have the benefit of 20/20, panoramic, Technicolour hindsight and as I will fully detail below at the time of filing their applications these clever but corrupt lawyers had worked out an extremely sophisticated scheme or conspiracy to (a) deceive the court and (b) conceal the planned deception until moment of delivery; The scheme was to;
Represent that the PURPOSE defined in the Amended Statement of Claim and in my Affidavit constituted the cause of action.
Deceive the Court into believing that the contrived plans facilitated avoidance of s.9
That the contrived plans were unlawful plans
That the act of the Council in sealing those contrived plans constituted the unlawful sealing.
That the Book of Pleadings, and in particular the page numbered 5, disclosed that I was aware that the contrived plans were illegal and contrived to facilitate avoidance of s.9.
That at the time of compiling the Book of Pleadings I was aware or held a belief that the contrived plans facilitated such avoidance
That by discovering a complete version of the Industrial plans the Council had openly disclosed the cause of action
That there was no fraudulent concealment of the cause of action.
An understanding of the further scheme to conceal the principal scheme is detailed further below.
So to set it out clearly, the corrupt intention of these lawyers was to deceive the court into believing that “unlawful sealing” – of – “unlawful plans of subdivision” constituted the cause of action, i.e. the sealing was unlawful because the plans were unlawful and I was aware of that fact at the time of compiling the Book of Pleadings in about 1991.
At page 5 of the Book of Pleadings I had made the following notes:-
“Notwithstanding that it was illegal Buchanan had sold 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 than two allotments (etc) Buchanan then lodged seven separate plans which were contrived to create several subdivisions of two lots each”
Below these comments I had physically pasted copies of two of the contrived plans given in evidence by the Council in the Magistrates Court.
This page of the Book of Pleadings, in isolation and out of context, can be misconstrued or misrepresented to show that I had knowledge or held a belief that Buchanan did avoid section 9 by means of these contrived two lot plans and that these plans were outrageously illegal and this is precisely what these corrupt lawyers intended to and did subsequently fraudulently represent.
The manifest truth however is that, as demonstrated above, this page 5 follows the page 3 which I have reproduced above and it precedes the page 8 which I have also reproduced above so the truth known to these corrupt lawyers was that Book of Pleadings unequivocally set out that these plans did not facilitate that avoidance at all and on Buchanan’s intention the plans were in minor technical breach of the law.
So to prepare the reader for understanding the scheme and the corruption which I shall shortly set out it is necessary to clearly understand a few things and the first of these is the difference between the “cause of action” and the purpose alleged.
In reply to the Council and Water Authority’s application, and in ignorance of the corrupt scheme of Delany, Garde and Co scheme I swore an Affidavit dated 18th October 2005 and at paragraph 45, my Affidavit said;
The present proceeding is firstly predicated on the allegations that the Council:-
Sealed the plans of subdivision in direct contravention of its statutory duty to refuse to seal them (See section 569B(7) of the Local Government Act 1958) and/or sealed the plans for an ulterior purpose, namely to avoid the provisions of s9 of the Sale of Land Act. (my emphasis)
Unlawfully sealed the plans in full knowledge that:-
(a) No services were present
(b) There was no lawful means of ensuring the provision of those services
(c) The allotments so created were unusable and there was no lawful means of ensuring that they be made usable.
(d) There was no planning permit permitting any one of the subdivisions created.
(e) Each of the subdivisions created was in breach of the Shire of Kyneton Interim Development Order then in place.
Item 1 describes the cause of action as being that the Council “Sealed the plans of subdivision in direct contravention of its statutory duty to refuse to seal them (See section 569B(7) of the Local Government Act 1958)”
Item 1 then continues on to assert that the “ulterior purpose” of the Council sealing the plans in the manner alleged was to “avoid the provisions of s9 of the Sale of Land Act.”
Items 2)(a), (b) and (c) assert that no services were present and there was no lawful means of ensuring provision of those services and that the allotments created were unusable and there was no lawful means of ensuring that they be made useable. It is these precise things which, as detailed above, were trapped by s569B(7)(a)(iii) and therefore the Council was required to refuse to seal the plans as asserted in the first part of item i) above.
Items 2)(d) and (e) merely go to mala fides because these things were also trapped by s569B(7) but did not and could not cause any loss or damage.
The second part of item 1 is clearly a purpose, and expressed as a purpose as distinct and discrete from the “cause of action”. The reason for alleging a purpose was that it demonstrates or asserts mala fides or bad faith and adds to the culpability but it cannot be said that the purpose constitutes the cause of action and by way of analogy it is instructive to consider the following
Consider the allegation “Fred robbed the bank to buy food for his hungry children” now quite clearly robbing the bank was the action, the thing done, the hungry children were the reason and feeding them was the purpose. Quite plainly Fred cannot be charged for the reason or the purpose but they may mitigate the seriousness, similarly the purpose stated in the Statement of Claim discloses or alleges a purpose which exacerbates the seriousness of the thing alleged but it can never be said that the purpose was or is the “cause of action”
So to continue to prepare the reader to understand the corruption it is necessary to understand section 9 of the Sale of Land Act. Section 9 of the then Sale of Land act was an exceedingly simple piece of legislation; it said;
“Where a notice of intention to subdivide land into three or more allotments in the form of the thirtieth schedule to the Local Government Act 1958 has been given or where in respect of any land such a notice is required to be given no person shall sell any such allotment unless …. … the allotment is an allotment on a plan of subdivision approved by the Registrar ….. “ (my emphasis)
The notice in the form of the thirtieth schedule referred to in section 9 is a notice of intention to subdivide which was required by the Local Government Act and quite simply if a subdividers intention was to subdivide land into say 18 allotments he was required to give Notice of (that) Intention to subdivide into 18 allotments and in this case Buchanan’s clear intention was an 18 lot residential subdivision, it was not six 2 lot subdivisions and one for the balance of the 18 allotments.
So the provisions of section 9 were astonishingly simple, if a subdividers mere intention was to subdivide land into three or more allotments that was it, he was prevented from selling any of the allotments until the plans had been approved by the Registrar of Titles.
However there was a compounding factor, in relation to the Tylden Rd land Buchanan and his crooked solicitor PS&R had sold two of the Tylden Rd residential allotments prior to the plans even being filed with the Council let alone approved by the Registrar of Titles. These sales were in clear breach of section 9 so these dishonest little men thought that they could avoid the law or legitimise these illegal sales by preparing a series of 2-lot plans of subdivision in lieu of the single 18 lot residential plan and they did exactly that and then filed those contrived 2-lot plans with the Council along with fraudulent Notices of Intention which did not disclose or give Notice of Buchanan’s true intention which was a single 18 lot subdivision and this compliant council accepted those fraudulent notices and processed those crooked plans. The obvious purpose of these two lot plans was to avoid the provisions of section 9 which prevented the sale of allotments set out on the 18 lot plan.
But of course the reality was that this moronic ploy did not avoid the provisions of section 9 at all. It did not matter, it was of no consequence; that Buchanan had filed a bunch of silly little 2-lot plans and dishonest Notices of Intention, the fact was and everyone knew that Buchanan’s intention was an 18 lot subdivision so the Local Government Act still required him to give notice of that intention and he therefore remained well and truly caught by the well drafted provisions of section 9.
All that this moronic little ploy had accomplished was a bunch of plans that on one view were in technical breach of s569A(1)(a), (b) and (c) of the Local Government act which on Buchanan’s intention required plans to show all allotments and all roads to be laid out and these plans did not. This was the total extent of the unlawful nature of the Tylden Rd Plans which the Council sealed and this was a function of Buchanan’s intention, not the plans per sé
Notwithstanding that they had been contrived for the specific purpose of avoiding section 9 of the Sale of Land act these 2-lot plans did not and could not facilitate that. They were merely in minor technical breach of the law and major testament to Buchanan and PS&R’s futile but corrupt intention to avoid the law.
The simple unassailable fact is that it was impossible to avoid the provisions of section 9 of the sale of land act.
But, I hear the reader saying, my affidavit clearly says that the purpose was to avoid the provisions of section 9 and now I am saying that such avoidance is impossible. The answer to that apparent oxymoron is it is impossible for a subdivider to avoid section 9 but with the cooperation of a corrupt council a subdivider can avoid the effect of section 9. The Statement of Claim includes the very carefully worded correct version of the purpose and that is that the purpose was to avoid “the effect of” section 9 of the Sale of Land Act. I had omitted the words “the effect of” from my affidavit but it is well set out in the primary document and in any event meant nothing because the provisions of s.9 cannot be avoided but “the effect” can so whether or not I omitted those words meant nothing.
Now an understanding of “the effect of” section 9 is that developers were prevented from selling allotments on subdivisions consisting of three or more allotments until such time as the Registrar of Titles had approved the Plans and in turn the Registrar of Titles was prevented from approving the plans unless the plans were sealed by the Council and in turn the Council was prevented by s569B(7) of the Local Government Act from sealing the plans unless the allotments were useable.
So clearly “the effect of” section 9 was that so long as the Council obeyed the law and refused to seal plans which created unusable allotments it was impossible for a subdivider to sell unusable allotments.
So, quite simply, the Council had sealed plans in full knowledge that the allotments were unusable and there was no lawful means or providing the services required to make them usable and thereby the Council facilitated avoidance of “the effect of” section 9 because such sealing led to the Registrar of Titles approving the plans without him knowing the allotments were unusable and the developer, in this case Buchanan, was then able to sell allotments which he and the Council knew to be unusable allotments and he did. The Council and Water Authority subsequently resorted to outright fraud against me to pay for the construction of those services.
The sealing of the plans in the circumstances set out in 2)(a), (b) and (c) of my affidavit referred to above facilitate avoidance of the “effect” of s9. The Circumstances set out in items i2)(d) and (e) do not.
Now a further consideration is the question as to whether these contrived plans or unlawful subdivisions as they were could cause loss and damage. Well the answer is a simple no; the allotments created by that series of contrived 2 lot plans were identical in all respects to the allotments which would have been created by the lawful 18 lot plan had it been processed without services and without lawful means to provide those services and whether or not it had a planning permit.
Now the obvious thing is that this “purpose” carefully and unequivocally alleged in the Amended Statement of Claim has zero to do with unlawful plans or unlawful subdivisions. The purpose would have worked equally well with the 18 lot plan because all that was required was for the Council to seal the plan(s) when the services were not present and there was no lawful means of compelling provision of those services. Avoiding the effect of s.9 has zero to do with plans, lawful, contrived, deficient or whatever, zero, zip, zilch to do with plans.
So from this little thought exercise we know;
The “purpose” alleged in the Statement of Claim did not and could not constitute any part of the “cause of action”
Contrived 2 Lot plans cannot facilitate avoidance of section 9
The total extent of the unlawful nature of the contrived plans was a minor technical breach because they did not show all of the roads and allotments which Buchanan intended to lay out.
These “unlawful plans” did not and could not cause any loss and damage and therefore did not and could not constitute any part of the “cause of action”
That there was no planning permit did not and could not cause any loss and damage.
These things entirely dispose of the second part of the lawyers corrupt intention to represent “unlawful sealing” – of – “unlawful plans of subdivision” as constituting the cause of action.
Now to dispose of the first part; “unlawful sealing”; well that’s beyond simple;
Firstly; whether or not the sealing was unlawful the plans, unlawful or not, could not and did not cause any loss or damage and could not conceivably form any part of any conceivable “cause of action”
Secondly; section 569B(10) of the Local Government Act 1958 provided “The sealing of a plan of subdivision shall be conclusive evidence for all purposes that there has been compliance with this act with respect to such sealing and that all preliminary steps and proceedings required to be taken in connexion therewith have been duly and properly taken”. (My emphasis).
So, from the legislation alone there was no “unlawful sealing” and to the extent that the plans were in minor breach of the Local Government Act that was only true having regard to Buchanan’s intention, the fact is that each of the plans was processed as a separate discrete subdivision and so each plan was in fact in total compliance with the law because each plan did show all of the allotments on the subdivision that each one pertained to as processed by the Registrar of Titles.
There was neither “unlawful sealing” — or — “unlawful plans of subdivision” — or an —- “unlawful subdivision”
The scheme of the lawyers for the Council and Water Authority, which I will shortly show, was a complete and utter fraudulent fabrication.
Now for sake of completeness of understanding; my Affidavit and the Statement of claim both allege that the Council “Sealed the plans of subdivision in direct contravention of its statutory duty to refuse to seal them”
This does not say and does not allege or assert or imply that the sealing of the plans was unlawful or that the plans were unlawfully sealed and a little analogy will assist with this important conceptual distinction.
In the circumstances which existed, i.e. no services and unusable allotments, the legislation acted as a restraining order preventing the Council from sealing the plans, so it was the breach of this restraining order which was the unlawful act, not the actual sealing of the plans and by way of analogy we might consider a person having a restraining order which prevent him from crossing to the south side of the road where some adversary resides. If he then comes up the road on the north side and presses the button at a light controlled pedestrian crossing and then crosses when the light goes green for him it is clear that the physical act of crossing to the south side was lawfully done but he breached the restraining order in doing so. So the actual crossing of the road was not unlawful done, the act of crossing was quite lawful. It was the breach of the restraining order which was the unlawful act. Now to take the analogy a little further, on this occasion the man crosses the road ten feet away from the pedestrian crossing and in conflict with approaching traffic, on this occasion the act of crossing the road was a minor misdemeanour attracting an on the spot fine but the separate and discrete act of breaching the restraining order was an entirely different illegal act which landed him in goal. The act of crossing the road did not put him in gaol, the separate and discrete act of contravening the restraining order did.
Similarly, in the present matter, the act of sealing the plans was not an unlawful sealing per se, it was the breach of the restraining order imposed by s569B(7) of the Local Government Act which was the unlawful act and in any event to the extent that it could be argued that the sealing per se was unlawful that unlawfulness was concurrently remedied by s569B(10) but deficiencies in the properties resulting from the breach of s569B(7)(a)(iii) were not and could not be remedied by s569B(10).
So from the foregoing it is clear that there was one thing and one thing only which constituted the “causes of action” set out in the Statement of Claim and in my affidavit and that was that in the circumstances set out in my affidavit and the Amended Statement of claim, the Council breached the restraining order imposed by s569(B)(7)(iii).
My affidavit was written in the complete absence of a notion that corrupt lawyers and barristers of the ilk of Delany, Garde and co would or could corruptly misrepresent it in the manner in which they did and which I will shortly demonstrate and it was written in the complete absence of a notion that barristers such as Middleton would be so grievously negligent (or worse) and in the complete absence of a notion that the Supreme Court of Victoria would or could conduct itself in the manner which I will shortly show and consequently my Affidavit was not written in a manner to protect myself from such corruption, it was written openly and simply and in the expectation that an honest and competent barrister would explain and expand it and that an honest and competent court would adjudicate; however of present relevance at paragraph 53 h) and i) my Affidavit of 18th October 2005 said;
Upon realising the above conclusions it became apparent to me for the first time:-
That the Council had acted maliciously or recklessly by sealing the residential plans contrary to its lawful obligation to refuse to do so.
That Wilson’s evidence given to the Magistrates Court had the effect of concealing the Council’s true conduct from the Court and myself.
I further concluded that at the time of sealing the series of residential plans the Council was not only fully aware that no services existed but it was also fully aware that there was no lawful means of providing or compelling the provisions of those services.
These paragraphs were an explicit statement as to the true “cause of action” and were an explicit statement as to my realisation “for the first time” of the Council’s “state of MIND” at the time that Wilson gave his evidence and the Council’s “state of MIND” at the time that it sealed the plans.
These things were not a statement as to my state of mind in relation to the unlawfulness or otherwise of the contrived plans or the unlawfulness or otherwise of the subdivisions or the unlawfulness or otherwise of the physical act of sealing. I had always believed that the council had acted corruptly in accord with Buchanan’s criminal intent but because of the perjury and falsification of documents and false admissions by the Council and Water Authority I could not demonstrate that.
These paragraphs set out concisely the only possible “cause of action” which was the sealing in breach of s.459B(7)(a)(iii) which required the Council to refuse to seal the plans and the reason for that breach, namely no services and no lawful means of providing them.
The “above conclusions” referred to in paragraph 53 h) of my affidavit included discovery of the exact things which the Council had concealed by perjury, falsification of documents, falsified discovery and false admissions, namely that the Council had abandoned the 18 lot plan and not processed it further and the council had not issued or served the Notice of Requirement related to that plan. These discoveries meant that the fact was and the Council’s MIND was that the contrived plans had been processed as discrete subdivisions and accordingly the separate Notices of Requirement served in relation to those contrived were not served pursuant to the Council’s resolution of 20th February 1980 but were instead served in the complete absence of an authorising resolution of the Council and were fraudulently fabricated to appear to have been served pursuant to the resolution of 20th February 1980.
To state the obvious, it mattered not what my mind was, I had to demonstrate the Council’s mind, not mine and the Council had well and truly corruptly concealed its corrupt state of mind and I say again, for the reasons set out in Chapter 8 I was at all relevant times convinced in my mind that the Council was thoroughly corrupt and had acted corruptly in this matter but until 2000 I could not demonstrate that corruption of the Council’s mind in relation to these things.
To be able to demonstrate the Council’s state of mind was critical, even though it was clear to me that the contrived plans constituted discrete subdivisions at law If the Council’s mind was as asserted by it then all I could show was mistake of law. But as soon as I could demonstrate that the Council’s mind was not as asserted by it I could demonstrate a wilful act causing my loss and damage and corrupt concealment of that act.
For the purpose of instructing my solicitors and barrister I had broken these things down into their component parts;
I had known since 1983 that Buchanan had attempted to avoid s.9 with contrived plans but these plans did not facilitate such avoidance.
I always suspected the Council was somehow involved but could not demonstrate mala fides; all I could demonstrate was mindlessness; mistake of law.
In August 2000 I had discovered that the Council had abandoned the 18 lot plan and not served the Notice of Requirement in relation to that plan and that the Council had perjured itself and falsified documents etc to conceal that fact.
Consequently the fact was and the mind of the Council was that it had in fact processed the contrived plans as discrete subdivisions.
Because the Council had abandoned the 18 lot plan and not served the Notice of Requirement related to that plans and had then processed the contrived plans discrete from the 18 lot plan none of the plans/subdivisions or the separate Notices of Requirement served in respect of the contrived plans inherited legitimacy from the planning permit or Council resolutions relating to the 18 lot plan.
This meant that the separate Notices of Requirement which had been served in relation to the contrived plans were not predated to reflect that they derived their authenticity from the 18 lot plan and the Council’s resolution of 20th February they had in fact been fraudulently fabricated to purport to derive their authenticity from that resolution but they in fact were entirely invalid.
The fundamental facts therefore were;
The Council had abandoned the 18 lot plan and associated resolution and had not served the Notice of Requirement related to it.
This gave rise to the fact that the contrived plans were processed as discrete subdivisions and the separate Notices of Requirement were without authority and of no effect so the fact was that the Council sealed the plans knowing full well that there were no services and there was no lawful means of compelling provision of those services
In the final condensed analysis I had discovered that the Council had processed the contrived plans as discrete subdivisions and the separate notices of requirement had been fabricated. – This was a function of and discovery of the Council’s state of mind – not mine — That state of mind of the Council being that it had in fact abandoned the 18 lot plan and processed the contrived plans as discrete subdivisions but had fraudulently concealed that fact.
It does not get simpler. – I HAD DISCOVERED THE COUNCIL’S TRUE STATE OF MIND
Come the time for the hearing of these applications for summary dismissal of my proceeding Lex Lasry was otherwise engaged on one of his famous cases of defending Australians under sentence of death in foreign countries so at the last minute my solicitors retained Mr. John Middleton QC, a purported highbrow $8,000 a day man to appear at the hearing.
The hearing was set down to begin on Monday 14th November 2005, on Friday 11th November I attended a pre-hearing conference with Middleton and my solicitors. At that conference I was surprised to find them apparently concerned by the “Book of Pleadings” which was exhibited in this new proceeding by the Solicitors for the Water Authority. They also appeared to me to be over enamoured by the series of contrived 2-lot plans which Buchanan had filed in relation to Tylden Rd for the purpose of avoiding s9 of the Sale of Land Act. Notwithstanding that I had been told to stay quiet and that they would ask questions if necessary I interrupted them and explained that the “Book of Pleadings” actually helped us and that the 2-lot plans and the sealing of them was entirely irrelevant and I explained why.
I had taken a friend along to that pre hearing conference and while flying home she said to the effect; “those pompous bastards weren’t listening to you, they took no notice” so rather than go home with my friend I dropped her off at Dubbo and flew immediately back to Orange, went home and hurriedly wrote and sent an email to Neil Adams and John Middleton. My email said a number of things but of relevance to the present purpose my email said;
“Whether or not the plans were sealed illegally is, in isolation, of no consequence and the illegal sealing did not and could not of itself cause the loss and damage suffered by myself.”
The thing which caused the loss and damage, as now known, is:-
The section 569E Notices of Requirement were unlawful; AND;
The Council sealed the plans in full knowledge of the fact that the 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.
“It is clear (and the LGA intends at s569(10)) that the unlawful sealing of a plan is, of itself, of no consequence because once sealed s569(10) operates (and rightfully so) to make the sealing lawful, and once approved by the Registrar of Titles any allotments created in the absence of any further deficiency, are indistinguishable from all other allotments.” (LGA = Local Government Act)
“I knew about Buchanan’s avoidance of S9 of the Sale of Land Act as early as about 1985 but could not and still cannot show that the Council had any knowledge of the effect of the series of plans and in any event the fact is that even if the Council did know it was not the sealing of the plans which caused my loss and damage.” (it was actually 1983 but hastily writing the email I didn’t check – all that was relevant was that it many years ago).
“By the time of my writing the notes in the book of pleadings I also knew that each of the plans was in breach of s569A(1)(a) because the plans did not show all allotments , roads etc however this knowledge was of no consequence and the sealing of these plans did not cause me the loss and damage and in any event 569(10) validated the sealing.”
The thing which caused the loss and damage is:- The s569E Notices of requirement which purportedly issued had no authority of law, AND the Council sealed the plans in full knowledge of this fact AND the Council sealed the plans in breach of their statutory duty to refuse to seal them.
I also said “Being separate and discrete subdivisions without a planning permit each and every plan was sealed in breach of the Council’s statutory duty to refuse to do so.” This was clearly additional to and different from the circumstances set out in paragraphs 2)a), b) and c) of my email and which were the circumstances causing the loss and damage and could not be confused with this additional thing which could not cause loss and damage.
This email merely set out what any barrister with even a modicum of skill and diligence would have already known from the legislation and the Statement of Claim and my Affidavit and the Book of Pleadings.
I sent this hurriedly prepared email at 4.27pm on Friday 11th November 2005 and I immediately telephoned Middleton’s secretary to ensure receipt, receipt was confirmed and she assured me of delivery to Middleton.
The Hearing.
I flew to Melbourne on Sunday 13th November in readiness for the hearing to begin the following day, overnight I developed a severe tooth abscess and I had to visit a Doctor who prescribed some very strong pain killer and sedatives. The result was that I went outside regularly and in the disjointed times I did attend the court I simply was not following the proceeding but I had confidence that my $8,000 a day man would do the job.
The hearing came on before Master Efthim, as I understand it Masters are sort of sub-judges, the term or word Master is something of an anachronism and by that time there was female Masters but they were not known as Mistresses. Anyway this little aspect has since been cleared up because the Masters and Mistresses are now both known as Associate Justices.
At the hearing because they were the instigators of the strike out applications the lawyers for the Council and Water Authority led off and made their submissions first; Middleton then followed and made submissions, purportedly on my behalf and then the lawyers for the Council and Water Authority responded to Middleton’s submissions.
After the hearing I was confident that my case had been put, I thanked Middleton and flew home and visited my dentist. I then acquired copies of the transcript for the purpose of a leisurely read to see exactly how well and truly Middleton had disposed of these applications.
I was shocked, I could not believe what I was reading, as fully detailed below, Middleton had completely and absolutely misrepresented me, the law, the facts, and flew in the face of the Statement of Claim, my affidavit, the Book of Pleadings and my email of 11th November.
In addition the lawyers for the Council and Water Authority had also overtly misrepresented the facts and the law and could not possibly have held a belief as to their submissions.
On reading these transcripts it was apparent that on the submissions the Master must come down against me and I wrote a most firm letter to Middleton and pointed out the fact of his gross and grievous neglect and I demanded refund of the $86,000 which he had been paid and I also required him to appear at the probable appeal to explain the fact of his neglect and to remedy it to the extent possible. He denied my assertions and refused to act further. He kept the money.
My one forlorn hope was that the Master was diligent and had read and understood the Statement of Claim, my affidavit, the Book of Pleadings and the relevant law and had seen through the litany of lies put to him. The fact was a simple reading of s.9 and just a little tiny bit of logic was all that was necessary. A modicum of diligence by the Master was all I needed.
Master Efthim handed down his Reasons for Decision on 15th May 2006, as detailed below he swallowed whole the submissions put to him and he regurgitated those submissions in his Reasons. He did not read or understand the law and he did not read or understand the Statement of Claim or my Affidavit or the Book of Pleadings or the numerous other key documents before him. He made Orders striking out my proceeding and he awarded punishing indemnity costs against me.
In the next few chapters I set out the fact as they became known to me.
Firstly of Course because I read the transcript with a view to learning what Middleton said I immediately became aware of his gross, grievous incomprehensible neglect and I cover that in the next chapter, Chapter 3 part 2.
The scheme of Delany, Garde and Co wasn’t so easy, that required serious forensic analysis.
Before going to the details, I recap;
The unlawful act of the Council was breach of s.569B(7)(a)(iii) – no other unlawful act was or could be relevant
s.9 of the Sale of Land Act was not avoided and cannot be avoided.
The total extent of the unlawfulness of the contrived plans was that they did not show all of the allotments and roads but this was a function of Buchanan’s intention, not of the plans themselves which were in fact discrete subdivisions and the plans did show all of the roads and allotments pertinent to each discrete subdivision
The subdivisions per se were not unlawful, they did not facilitate Buchanan’s intention. The total extent to which they were unlawful, prior to sealing, was that they did not have a planning permit and this did not and could not cause loss or damage.
Once sealed there is no such thing as an unlawful sealing, s569B(10) remedied everything.
The perjury, falsification of documents, falsified discovery and false admissions concealed one thing and one thing only and that was that the 18 Lot plan and associated resolution had been abandoned and the Notice of Requirement related to that plan was never either issued or served.
The Book of Pleading expressly and unequivocally set out that s.9 was not avoided and cannot be avoided by contrived plans.
I had discovered the Council’s true state of mind.
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