False testimony in the Supreme Court - Caught in the Injustice System

Any reference to CASACIR or its directors, shareholders, owners or operators relates to pre-14 February 2024 when the company was sold. In no way can anything said relate to the company or its new owners, operators, directors, and shareholders after that sale.

Preliminary

One of the issues in the my affidavit material filed with the court was the prolific false testimony given under oath by two men who are now trying to force me into bankruptcy. Due to having been intimidated into making an undertaking to the court that I would not have a website about them personally, I will refer to them simply as man X and man Y. It is irrelevant though, because (1) this website is not about them personally but is about the injustice system and only notes their part in the injustice, and (2) they played different parts at different times: plaintiffs, respondents, applicants, etc. and a generic term seems more appropriate.

Assessment, definition and acknowledged criminality of perjury

I make no determination, suggestion or hint as to whether man X and/or man Y perjured themselves. I suggest you read the accompanying document “Assessment of perjury” and make your own decision based on the facts.

Southall identified that he knew, and had the responsibility to inform his clients, that to lie under oath was perjury and a criminal offence – whether he did warn them we don’t know, but given his support for, and minimising of, their lying under oath, one doubts that he even raised the topic with them given that he settled their witness statements and proofs of evidence and actually suborned false ttestimony.

Both men were witnesses when in the witness box and when they each swore on oath to tell the truth, the whole truth and nothing but the truth. When they took that oath, they were thereby swearing that they wouldn’t exaggerate, twist, or in any way manipulate what they testified to. By swearing falsely, they knew that if an action for fraud was taken out against them, that under the law there was the strong possibility that a determination of perjury could be made against them, along with possible jail time and heavy fines. They therefore willingly and knowingly took that risk.

Before their Honours, Santamaria, Kyrou and Elliott JJA, the following took place in relation to lying under oath [emphasis mine]:

Southall: Yes. Your Honours have no doubt picked up, in paragraph 14, that there are alternatives, particularly in criminal law; indeed, they arise under criminal – they can be applied in civil law as too – but the alternative offence of perjury, contempt and perverting the course of justice are always available to be invoked in the appropriate circumstances, such as in this case, if it were proven, if the dishonest factual evidence were proven[1].

[1] T104:23-31

While none of the issues listed below may seem important on their own, it is critically important to see and acknowledge that man X and man Y both lied under oath and did so deliberately and repeatedly; they gave repeated and deliberate false testimony with the intention of grossly exaggerating, and using hearsay and outright falsities, to sway the judges. By so doing, any normal person looking at the evidence would say that these men proved that they were perhaps not the honest, upright, ethical men they swore they were – and if they swore falsely about that (which they did), then all their other testimony had to be suspect, as was their entire case. In addition, certainly a number of those lies swayed the court into making orders and judgments (and this is identified in two of the judgments). Those impacts would not have taken place if the truth had been told instead of the giving of false testimony – we can’t possibly know what impact all the other false testimony actually had upon the judgments (just because it wasn’t identified doesn’t mean it didn’t have an impact). However, this is not really about the two men, but is about the courts that ignored the proofs and said that the men had done nothing wrong (in swearing so falsely). It is beyond belief and one had to ask what is really going on in the injustice system.

Some of their false testimony excused and ignored by the courts follows. I had provided proof to the courts[10], for example of the following false testimony:

Man X and man Y testified as to the importance of their honesty and integrity and the swearing of an oath

Man X testified that that he was a Christian man with a strong faith whose beliefs were strong and that he adhered to them; that it all related back to his faith and beliefs and how he conducted himself in life as well as business: in a fair, honorable and honest way; that honesty and truthfulness was the essence of his life and beliefs and how he conducted himself. He swore that it was the backbone of his life and how he raised his kids; that his family had a reputation where it was known that they were good to do business with, honest, reliable and that their standing in the community was impeccable:

Mr Southall: When  you gave your evidence on oath at the enforcement proceeding, what importance did you place upon that?

Man X: This is the essence of our lives and our beliefs and what we – how we conduct ourselves and that is something in my life – it’s the backbone, it’s how we bring up our kids.[11]

Man X: It all relates back to our faith, our beliefs and what we – how we conduct ourselves in life as well as business.

Mr Southall : What do you mean “how we conduct ourselves”?

Man X: In a fair and honorable honest way.[12]

I have strong religious faith. Am I a big church goer, no, but my beliefs are strong and I adhere to them, yes.[13]

My grandparents as well as my parents were very religious, church going people.[14]

Someone is questioning my belief, faith and I’ve taken exception to that. It’s not something that she knows anything about or has any knowledge of it, let alone any of her business.[15] [16]

It all relates back to our faith, our beliefs and what we – how we conduct ourselves in life as well as business. … In a fair and honorable honest way[17]

Our family had a – it was known that our family were good to do business with, honest, reliable. The standing in the community was impeccable.[18]

However, in direct contradiction to his sworn testimony, man X proved that his sworn word was at many times absolutely contrary to the above claims of honesty and integrity.

Man Y also committed fraud by deceitfully and dishonestly and fraudulently swearing (lying under oath) at court that he was a man whose word could be trusted, that other people could take his word for things he said, that he was concerned about his reputation, that he had built a reputation over many years so that people relied on his integrity, and that the way he conducted stabilising works in particular, was very important to him [emphasis mine]:

I was really concerned that we were going to have a great reputation with a fairly strong tarnish on it.[19]

My concern is more about my reputation and the fact that I value my word in the industry I’m in and I value that other people take my word for things[20]

We built a reputation over many years so that people rely on our integrity and on the way we conduct stabilising works in particular, it’s very important.[21] [22]

Man Y‘s testimony is evidenced as fraudulent, and knowingly so, because he was certainly not concerned about his reputation or integrity given that, inter alia:

He told a neighbour as unequivocal fact that his company would provide her with a driveway of the same high quality standard as his own, yet her driveway unsurprisingly failed – then man Y refused to fix it, refused to repay the money, and refused to even respond to communications until legal action was threatened[23]. In fact, Southall, on man Y’s behalf, admitted about it that [emphasis mine]:

It’s basically a letter of demand from … lawyers to [man Y] and it’s on behalf of a [client] who is a person who engaged [man Y], one of [man Y]’s companies to lay an asphalt driveway at her home in Chirnside Park, Victoria. I’m not going to refer to it in detail, Your Honour can certainly do so, but they are pretty robust complaints about lack of competence and due care and skill in the laying of this road and then the demand on the bottom of page 2 about what the client wants[24].

Your Honour, it was a letter of complaint that was sent by a solicitor on behalf of a client for whom [man Y’s company] had done works in relation to a driveway[25].

We go to that letter, which is the letter from [a client], it’s exhibit B, and indeed [the defendant] has made some point of it also. It’s a letter [that] contains some bitter statements about the quality of some driveway works that had been carried out.[26]

In addition, Pagone J noted:

The letter, sent on behalf of a [client], complained about the quality of work on an asphalt driveway at her home[27].

Man Y’s company had to keep re-doing the formation and stabilisation of the road at Neerim North because it was constructed so poorly by his company that even man X complained at VCAT[28], at community meetings[29] and at court[30], about the lack of quality;
Man Y repeatedly and deliberately gave false testimony by lying under oath at court[31],
Man Y provided, and approved of, fraudulent content in documents filed with the court, and previously at VCAT;
Man Y admitted to personally having selected the name of the company: Crush Any Shit And Call It Rock, which has the acronym CASACIR:

Mr Southall: You tell us what is the true version?

Man Y: It had nothing to do with a bottle of red as I’ve heard. We originally started a company, we bought the Mount Speed quarry at Trafalgar and [man X and I] floated a company which we owned between us and we called it Mount Speed Quarries. That operated for some years. We then had the opportunity to buy a concrete plant, two concrete plants, an asphalt plant and a quarry known as granite rock, and it was not practical to call the company then Mount Speed Quarries because it wasn’t just Mount Speed. My companies, Stabilime group, are and were major customers obviously of Casacir and the rock that we were producing or that [man X] on our behalf was producing out of Mount Speed was not the highest grade of stone. We weren’t buying necessarily VicRoads quality but it is a natural mudstone deposit and when you crush it, some parts of it tend to be softer than a basalt or a granite rock quarry and some of my engineers had some disputes with [man X] over the quality and it became known affectionately in our company as mount mud, purely internally, and we had to think of a name and I sat down one night and I certainly did come up with the acronym that is Casacir[32].

Perhaps VicRoads needs to take this on board!

He is happy with the name he chose for the company, and that “the industry knows” the name behind the acronym:

Me: Is it a name that you wouldn’t want shared around?

Man Y: No, I don’t particularly care. It was in good humour that it was put together. We had to find a name, Casacir sounds fine to me and I wouldn’t have any intention of changing it.

Me: But you don’t care who knows about it

Man Y: It doesn’t matter whether I do or not, the industry knows.

Me: So the whole industry knows?

Man Y: Yes[33].  

In fact, man Y was so unworried about the acronym that Southall, reading from man Y’s witness statement/proof of evidence, told the court that man Y had admitted that:

He came – he needed another name for the Mount Speed quarry: “It was a very muddy quarry so it had acquired the nickname Mount Mud and I came up with Casacir from that nickname”[34].

One has then to ask why they took me on for defamation about having revealed the CASACIR name since (1) it was true, (2) the whole industry knew about the name and (3) he didn’t care that the name was known. Clearly it was not because it was defamatory – it was the admitted ulterior motive of intimidating me into removing the entire previous website and then, once that purpose was achieved, for the second admitted ulterior purpose of gaining my assets.

Man Y repeatedly disregarded VCAT and court orders and directions.

Those are not the actions of someone who was at all concerned about his reputation, his honesty, or his integrity.

Man X and man Y’s self-serving testimony was given in order to set the scene that they each had high principles, and that their belief systems were impeccable, as an absolute, unassailable and irrefutable fact, that they could each absolutely be completely trusted to be honest, and that they would each tell the truth, the whole truth and nothing but the truth at all times. Because their false testimony about their fraudulent self-serving commendations was believed, their other false testimony was also believed. This severely tainted the view the judges took on the issues and evidence, and grossly swayed them from the truth.

Having set the scene of complete trustworthiness and integrity, man X and man Y then gave the following lies under oath (false testimony) as additional absolute, unassailable and irrefutable fact – thereby proving that they were not the men of high integrity, ethics and ideals that they fraudulently testified themselves to be.

Man X claimed to know what happened in a mediation meeting to which he was not privy or present

Man X, under sworn oath, gave false testimony to the court in relation to knowing what happened in a closed mediation meeting, and about his knowledge of conversations between my husband and myself in that closed room where neither man X nor any of his team or representatives were present. In my affidavit I provided timesheets proving that my husband was not physically in the meeting with me (and that his conversations with me were consequently by phone – and that it was therefore impossible for anyone else to hear especially (given that the old phone I had at the time did not have speaker phone facilities, or if it did I did not know how to access or operate that function)) – therefore no-one but I knew what my husband did or did not say. Putting aside for the moment the fact that I had proved that my husband was not physically in that meeting, there is very clear and precise protocol for mediation sessions: Firstly there is generally a joint session where all parties meet and discuss the issues to see if there can be any common ground or resolution. Failing any common ground or resolution, each side goes to separate rooms (with closed doors) some distance part. The mediator then moves between the two rooms, seeking to find a resolution. He or she can only share with the other side what he or she is given permission to share, and nothing else (all other conversations are entirely private and confidential). Therefore, for man X to swear on oath that he knew what had happened in conversations between my husband and myself in a closed session to which he had no access, particularly given that the conversation he said took place did not, is clear and unmistakable false testimony. In addition, man X broke the law^[35] by revealing what he claimed happened in mediation when permission had not been sought, nor had permission be given, for revealing anything about what happened in mediation at that time. He gave further false testimony when he lied under oath when he fraudulently swore:

[He] wanted to take [the offer] up and [she] didn’t.[36]

It was not only grossly misleading, because, for man X to have purportedly “known” what took place in a closed meeting was to testify that, either:

he had planted an illegally concealed microphone in her closed room to which neither he nor man Y, nor any of their legal team had entry, and gave fraudulent information about what he heard, and/or
he is claiming that my barrister was corrupt and revealed [inaccurate] information that he had no right to reveal, and/or
he is claiming that the mediator had breached his fiduciary duty and had revealed [inaccurate] information that he had no right to reveal.

Whichever way man X chooses to say it supposedly happened, it did not happen and could not have happened – and therefore it was false testimony and was lying under oath.

The reason man X gave that false testimony was to try and influence Pagone J in relation to man X and man Y’s fraudulent claims for aggravated damages and, if it had been true, it would have been particularly relevant – however, it was not true and was another effort to pervert the cause of justice.

As said, I provided my husband’s timesheets in my affidavits proving that he was at work and not in the mediations, and the law is very clear on what happens at mediations. How then can it not be false testimony? How can the courts say, “So what”?

Man X gave false testimony by exaggerations

Man X gave false testimony when he lied under oath when he fraudulently exaggerated his testimony that I had contacted the authorities on a daily basis by making “daily” requests [emphasis mine]:

We also use [Kraan] today in the ongoing letters that have to be written to the authorities answering your daily request for whatever it might be.[37]

There were no “daily” requests, and a look at my email communications reveals the truth was contrary to man X’s sworn testimony. This was, yet again, false testimony from man X. How can it not be false testimony? How can the courts say, “So what”?

Man X fraudulently testified that I had updated my (previous) website daily [emphasis mine]:

The web page is one of those things that seem to evolve daily so it wasn’t something you read one day and it was going to be the same in a month’s time, it was updated a lot of the time, every day or every second day so it was ongoing of what was being – – -.[38]

… this website on a daily update …[39]

Man X presented to the court as absolute fact that the website had been updated daily and that they had to produce, on a daily basis, responses to the authorities[40]. The fact is that the website had been updated a few times a month, but not daily or even every second day – man X’s sworn testimony was unfounded, absolutely untrue and a further gross exaggeration, making it further false testimony (i.e. lying under oath). In addition, the 309 page folder produced by man X and man Y and served on me together with the statement of claim dated 20 February 2012, contained the entire website and proved that they knew that the website was not updated daily. How can it not be false testimony? How can the courts say, “So what”?

Those matters were given as factual testimony in order to try to exaggerate any claimed (but non-existent) impacts.

Man X swore to false timings of endorsements of work authorities

Part of man X’s job is the obtaining of work plans and work authorities and therefore knows the difference between the vey 2 different and distinct documents and their roles in the life of a quarry (if he doesn’t then he shouldn’t be in charge of quarries). Therefore man X gave knowingly and deliberate false testimony by lying under oath that they had had their work authority unendorsed and had not been able to get another for 18 months [emphasis mine]:

We had our work authority disendorsed, unendorsed whatever you want – the only time ever. It took another year and a half to get another work authority listed in our name again.[41]

This was further false testimony, fraudulent misrepresentations, negligent misstatements, and gross exaggerations because man X was deliberately misleading in his use of the term “work authority”. The document that was unendorsed was a work plan. The time from un-endorsement of the first work plan (unendorsed in September 2007, due to the fraudulent information contained within it[42]) until the endorsement of a second work plan (endorsed in December 2007) was 4 months, not the grossly exaggerated claim of an 18-month purported time period. I supplied copies of each of the work plan front pages showing the dates, together with a copy of the letter and email of un-endorsement to the court – there was no valid reason for the courts to not see and understand the proof of man X’s false testimony.

Further, man X’s testimony as to having the work authority unendorsed was clearly and undisputedly fraudulent. The timeframe for the said “unendorsement” does not align with that of the work authority as man X and man Y did not have a work authority at any time at that quarry until 20 July 2009. In addition, under legislation a work authority could not be unendorsed – it would have to be cancelled. I put the true facts to man X [emphasis mine]:

Me: The old plan was unendorsed in August/September of 2007, the new work plan was endorsed December, 20 December 2007. I put it to you that’s only about three or four months. …

Man X: Yes.[43]

So, when pushed, he finally admitted to having deliberately exaggerated and thereby lied under oath, but the courts ignored the fact that he had admittedly given false testimony.

Man X swore to false timings of being allowed to commence work

Man X grossly exaggerated and gave false testimony when he fraudulently testified that my actions had held man X and man Y up for a further 9 months from being allowed to commence operations and had caused additional conditions [emphasis mine]:

With your help, you held up the DPI back from awarding – allowing us to start operations for another 9 months…. The conditions that were imposed at VCAT were actually extended by the DPI after VCAT had made the decision for us to open a quarry and it took them nine months to write the new conditions over and above the VCAT conditions and the shire conditions, nine months before we could start work and the whole time you were talking to the DPI, talking to the catchment authority, talking to the shire saying that the place will never open, you were sending letters to us…[44]

Man X knew that his own 2008 planning report (endorsed as part of man X and man Y’s planning permit) acknowledged that the endorsed work authority was the “operational approval” and must be issued prior to commencement, and that the work authority cannot be issued until the work plan had been endorsed and the planning approvals required have been obtained [emphasis mine]:

Pursuant to the Extractive Industries Development Act 1995, the Work Authority, which is the “operational” approval for extractive industry, must be issued by the Department of Primary Industries (DPI) prior to any extractive industry activities occurring on the site. … An ’endorsed’ Work Plan must accompany an application for a planning permit. Upon the receipt of the planning approvals sought, the Work Authority can be issued by the Department of Primary Industries. … In accordance with section 19(2)(c) of the Extractive Industries Development Act 1995[45], the Work Authority cannot be issued until the planning approvals required have been obtained.[46]

It must be remembered that man X (and man Y) had taken the defamation action to try to instil in the court’s mind that I was doing whatever I could to stop the quarry – in spite of the action I had previously taken against them actually being as a result of man X and man Y’s (1) gross failures to comply with legislation, and (2) their gross failures to comply with their permit and work authority conditions, and (3) their gross failures to comply with their own undertakings, and (4) their repeated breaking of the law, and (5) the severely detrimental and almost constant impacts they forced upon me and my related parties by their offending conduct (dust, noise, water impacts, etc). The real facts, contrary to man X’s false testimony (i.e. lying under oath), are that discussions were held between DPI and council to ensure that the DPI conditions did not contradict the planning permit conditions[47]. I had no part or input into any of those discussions or decisions, and I did not have anything to do with any conditions or requirements. Further, in his giving of the false testimony, there are a number of issues that were of critical importance, all of which man X would have been fully aware of in his role as the quarry general manager:

on 19 January 2009 the VCAT grant of permit issued – man X and man Y knew that they could not commence works at this point;
on 3 March 2009 the council planning permit issued, held up by a couple of amendments under the “slip rule” needing to have been performed (i.e. not in any way related to me) – man X and man Y knew that they could not commence works at this point;
on 12 May 2009 Man X and Man Y created a new (third) work plan[48] – they could not commence works at this point – again another delay not in any way related to me (and in fact, the delay was entirely caused by man X and man Y themselves);
on 6 July 2009, council, having taken the time to read, understand and approve the new (third) work plan, then endorsed it as part of the planning permit – man X and man Y knew that they still could not commence works at this point;
on 20 July 2009 DPI issued the work authority – man X and man Y could now and only now commence works, as identified in their planning report quoted above;
on or prior to 4 August 2009, man X and man Y commenced work on the site[49] and that was confirmed by them in a letter on the CASACIR letter-head to me, dated 10 August 2009.

To claim a 9-month delay, and to attribute that delay to me, is an extraordinary exaggeration and is yet further false testimony. The fact is that work commenced:

less than 7 months after the VCAT decision was handed down;
5 months after the council permit issued;
3 months after the creation of man X and man Y’s new (third) work plan;
one month after the endorsement of the new (third) work plan into the planning permit, and
only 14 days after the very first day that they could commence – that is not the grossly exaggerated 9 months claimed – and the 14-day delay was their choice.

A copy of each the following documents were supplied to the court to prove my allegations: (1) the front page of the VCAT review order (dated 19 January 2009), (2) the front page of the planning permit with the date of 3 March 2009 on it, (3) the front page of the third work plan (dated 12 May 2009 and embossed with the endorsement date of 6 July 2009), (4) the letter dated 10 August 2009 from CASACIR stating that they had already commenced works at the site, and (5) the front page of the work authority. For man X to claim that he was unaware of this process is ludicrous, fraudulent and was a further deliberate attempt to sway the court from the truth (revealing his contempt of court) – man X’s sworn testimony was, yet again, deliberately fraudulent and knowingly so, so how can it not be false testimony? How can the courts say, “So what” when they had al that proof in front of them?

Man X and man Y swore to false times in VCAT (and court)

Man X gave false testimony that was thoroughly and decisively contradicted by his own barrister. Man X fraudulently testified under oath that he and man Y had been forced into 8 years at VCAT and/or court by me [emphasis mine]:

Mr Kraan is the consultant we have used for the past seven or eight years in the application pursuing court appearances, VCAT five, six, seven cases or whatever it might be ….[50]

For eight years you’ve been taking us to court…[51]

Firstly, at the point of man X’s sworn testimony, he and man Y had not owned their property (“the quarry land”) for quite 7 years, let alone 8 years – and there had been no action up until the review hearing at the end of 2008 (of which I was only one of 28 objectors – and that was VCAT action, not court action).

Secondly there had only been one and a half days that my related parties had initiated in court at that time[52]. If man X was referring to VCAT (rather than “court”), my related parties first took action in August 2009 and the last action finished on 26 November 2010 – just over one year in total, and with the first action being only 3½ years earlier than man X’s false testimony – hardly the 8 years fraudulently exaggerated and claimed by man X under oath. Further, in direct conflict with man X’s sworn testimony, my claimed VCAT timeline was confirmed by Southall in his submissions as truth:

[C]ommencing 2009 through to 2010 are the VCAT proceedings …[53]

Southall’s correct dates prove that man X grossly exaggerated and knowingly and deliberately lied under oath – proving that man X knew full well that he had deliberately lied under oath and given false testimony. I provided a full list of the VCAT cases and dates to the court; therefore, the courts had this information in front of them, so how can it not be false testimony? How can the courts say, “So what”?

In fact, man X fraudulently testified by lying under oath that [emphasis mine]:

[W]e never seem to win anywhere[54]

Again in direct contradiction to man X’s false testimony, Southall repeatedly submitted that my side had lost every application[55] at VCAT. There was a clear and absolute conflict of reality between man X and Southall. In one of his submissions Southall said [emphasis mine]:

[N]one of the VCAT proceedings brought by the defendant, … succeeded.[56]

Regardless of the rightness or otherwise of the VCAT applications, the results are that man X did give provably false testimony and lied under oath, as proved by Southall above. The VCAT cases were as follows:

The stop work application was won by man X and man Y, at least in part because they did not wait for the determination of the VCAT before blasting. Consequently, costs were awarded to them.
The permit cancellation application was won by man X and man Y because the multitude of breaches were removed from the application under the advice of the VCAT member (and the new application became the enforcement application), and costs were awarded to man X and man Y.
An application under the Water Act in the planning jurisdiction was cancelled and replaced by an application under the Water Act in the real property jurisdiction.
This application under the Water Act in the real property jurisdiction settled in our favour under terms of settlement[57] – thus we won. However, subsequently man X and man Y showed their firm, clear and deliberate intention to, without any discussion or agreement, disregard, abandon and ignore the very the terms[58] they agreed to, and to do so in spite of my continued, repeated and clear objections – so we actually lost. A copy of the binding terms of agreement that man X and man Y disregarded was supplied to the court.
An application in relation to a retrospective permit for works on a waterway was won by man X and man Y, and costs awarded to them, because the evidence of what they had done was fraudulently denied by them, and ignored by VCAT.
The enforcement application was won by man X and man Y because they provided false, fraudulent and misleading evidence and false testimony both written and verbal, and man X and man Y contended that I and my related party were vexatious[59] in taking out the action to try to protect ourselves and our pre-existing legislated rights from the dust, noise, loss of water quality and quantity (etc). And, in spite of the application only existing because of the VCAT member’s repeated recommendations that this was the appropriate avenue, and in spite of man X and man Y breaching confidentiality, and in spite of my related party providing 200 pages of photos and Freedom of Information proofs against their lies, and because of the use of man X’s considerable and false hearsay – they won and costs were awarded to man X and man Y. A copy of the quotes from the member were supplied to the court.

In fact, the first 3 iterations of man X’s own statements of claim at court proved his testimony fraudulent and that he had lied under oath. His statements of claim acknowledged as truth that [emphasis mine]:

VCAT applications brought by the defendant (whether in her name of through her company…) against Casacir have been dismissed, and costs orders have been made against the defendant in such proceedings.

Enforcement proceedings instituted at VCAT by the defendant and her related companies against Casacir have been unsuccessful, and VCAT has found in favour of Casacir (and thereby its directors, [man X and man Y]) in such proceedings.[60]

Enforcement proceedings brought by the defendant in respect of the Casacir quarry operations at Neerim North were dismissed by the VCAT, and cost orders have been made against the defendant in other VCAT proceedings.[61]

So, we have man X fraudulently testifying to one thing, namely that he and man Y “… never seem to win anywhere”, and Southall together with man X’s own statements of claim, submitting to the exact opposite and proving man X’s testimony to be fraudulent and that he had again knowingly lied under oath. How can it not be false testimony? How can the courts say, “So what”?

Man X even falsely testified that the VCAT cases were continuing [emphasis mine]:

Mr Kraan is the consultant we have used for the past seven or eight years in the application pursuing court appearances, VCAT five, six, seven cases or whatever it might be and it continues.[62]

There had been no VCAT action taken by myself or any of my related parties after the end of the hearing in November 2010 (as agreed by Southall above) – again proving man X’s sworn testimony to be knowingly false. To make the claims that it was “ongoing” was further deliberate and knowingly false testimony, so how can it not be false testimony? How can the courts say, “So what”?

Man X and man Y collaborated in their false testimony by each fraudulently testifying that I had forced them into 40 days at VCAT:

… 40 days in VCAT …[63]

… during the 40 days at VCAT …[64]

… and the 40 days at VCAT …[65]

There were no more than 24 days in VCAT in total (12 of which were the original review hearing – of which I was only one of 28 parties). Of the other 12 days:

1½ were initiated by man X and man Y themselves, and
a further day and a half were in mediation in total

In other words, nothing like the grossly exaggerated 40 days claimed repeatedly by man X and man Y. Both men knew that there were not 40 days in VCAT – they knew because they were parties to each of the VCAT matters and, if they did not know, they had the responsibility to ensure that their testimony was true and accurate. It must be noted again that both men had meetings with their barrister to nail down their testimony. Further, this was not an arbitrary number that was “it feels like” or any number that could be “he said” / ”she said” – this 40 days was a very precise number that was specifically, dishonestly, colluded and collaboratively chosen in a pre-planned manner to go well beyond the truth and exaggerate by both man X and man Y – and that should meet the perjury test. As stated, a copy of the details of the VCAT proceedings was supplied to the court, so how can it not be false testimony? How can the courts say, “So what” when they had been shown the proof?

Man X and man Y falsely swore that everyone in the world knew about my previous website

Man X and man Y each committed fraud by respectively deceitfully and dishonestly testifying under oath that [emphasis mine]

[T]he world can see [the website] and the world are telling me they have seen it and industry wise, everybody knows about it, they have heard about it…[66]

[E]veryone seems to know fairly quickly.[67]

Remembering their oath to tell the truth, the whole truth and nothing but the truth, these claims are simply extraordinary: The world can see it? The world has told them it has seen it? Everybody in the industry knows about it? Everybody in the industry has heard about it? Everybody knows about it? Everyone knows fairly quickly? If that was so, surely they could have brought in some strangers, some consultants, some customers, some friends, and some family, to testify on his behalf – but they did not – not one person out of any of those categories was a witness[68]. In fact, man Y’s own son refused to come and testify on his father’s behalf[69]. Southall made the following excuse in spite of the son being fully aware of when he was to testify:

[Man Y’s son] was intended to be our final witness, he’s the son of the second plaintiff. …. He simply can’t make it today[70].

Mere logic tell you that man X and man Y gave false testimony by way of clear and deliberate exaggeration, and which was certainly not the truth, the whole truth and nothing but the truth – so how can it not be false testimony? How can the courts say, “So what”?

In addition, man X and man Y each committed fraud by respectively deceitfully and dishonestly testifying under oath by the inclusion of a significant amount of hearsay (including double hearsay) [emphasis mine]:

There were numerous people that spoke to us who had seen the web.[71]

Other people made notices about – they were aware of the Quarry Fight website and the ongoing disruption to our business.[72]

People who used to work for us, office girls and the like, had brought it up[73]

They certainly had been reading it and certainly commented about it.[74]

I did have a number of calls from people that we do business with and certainly via the clerk of works in VicRoads and the Baw Baw Shire Council, they would discuss these issues with my men and obviously it would travel up the line.[75]

[T]he report on this Quarry Fight website just spread like wild fire amongst my people.[76]

Neither man Y or man Y brought any of those persons in as witnesses and therefore, since hearsay cannot be used[77] it must be deemed to be fraudulent testimony, (1) especially given it was used solely for the purposes of trying to gain traction in their case for aggravated damages, irrespective of the fraudulent nature of it – so how can it not be false testimony? How can the courts say, “So what”?

A far as man Y’s employees, or “people”, being concerned by the website, Southall, reading from the notes taken from his pre-hearing interview with man Y told the court as absolute fact that [emphasis mine]:

[Man Y] says that … [h]e’s had people, particularly in his organisation who have made enquiries about the stability of the firm, their concern about – these are people at a lower level who might not be expected to have a high degree of insight and intelligence who have simply expressed worry about their position and about whether these downloads on the website represent a more general malaise in the company[78].

I wonder what the employees will think about man Y’s attitude to them, and what he really thinks about them, when they read this!

Man X falsely swore to regulatory monitoring at the site

Man X falsely testified that [emphasis mine]:

The government regulatory authorities have been so tied up in this for so many years, that this website on a daily update was a warning to us that probably the following day every regulatory authority will have had a notice saying there was too much dust, too much noise or there was water running out the front gate and we would have to have letters produced from our consultant or site visits or there were site visits conducted because of the website which just was an ongoing – we, Neerim North quarry is the most highly inspected quarry in Victoria[79]

Firstly as shown earlier in this document, there were no “daily” updates and therefore no daily responses. Further, under cross-examination on the frequency of visits to the site, Ms Bignell of the then DPI testified, in direct contradiction to man X’s sworn testimony [emphasis mine]:

Me: How many times have you visited, actually visited the site, you or one of your colleagues since August 2011?

Ms Bignell: Without our detailed records in front of me, I would be talking generally.

Me: Yes?

Ms Bignell: But I would say on an average between six to eight times a year since the quarry started, averaged over that period.

Me: Okay, but I’m talking specifically – say in the last year, so you say six to eight times?

Ms Bignell: In the last year probably three to four times.

Me: So less than – – -?

Ms Bignell: Less in the last 12 months.

Me: So less than average after the website started?

Ms Bignell: As I said, without our detailed records in front of me, I couldn’t say when but I wouldn’t attribute any change to the actual website.[80]

So there were less visits due to the website than before the website, and none of the visits were attributable to the website – again, man X clearly gave further false evidence and lied under oath[81]. The courts read the transcripts of both man X and Ms Bignell and knew therefore that man X had outright lied – so, how can it not be false testimony? How can the courts say, “So what”?

Man X swore falsely about buffers and our house

Man X fraudulently testified about my house:

[S]o you could build a house on a boundary to try and impact buffer zones.[82]

This was blatantly and knowingly false on a number of fronts:

Man X knew that there was an existing house already on my related party’s land many years prior to his and man Y’s purchase of the quarry land, and in fact man X and man Y had previously identified that the existing house was 140m from the southern edge of the proposed quarry site. A copy of section 7.1 of man X and man Y’s first work plan identifying the reality of the house was supplied to the court.
Man X also knew, when giving his fraudulent testimony above that the new house was in fact further away from the quarry than the existing house, and if the old house did not impact the buffer, the new one certainly would not.
Man X also knew, when giving his fraudulent testimony above that there was the legal requirement set by the planning scheme that he, man Y and/or CASACIR had to own or control the entire buffer. Since they did not own or control any of the land owned by my related party, by law the buffer had to be entirely on the quarry land and could not therefore be affected by wherever the house was located.
Ms Bignell from DPI (one of man X and man Y’s own witnesses to trial) had previously told me that man X and man Y owned or controlled the entire buffer and that the buffer was contained within the work authority boundary, again proving that, if man X was obeying the law, the house had no bearing on the buffer. A copy of the email from Ms Bignell was supplied to the court.

Therefore, for man X to testify that the reason for the location of the dwelling was to impact the buffer was yet further knowingly false testimony (lying under oath), so how can it not be false testimony? How can the courts say, “So what”?

Having admitted to the house above, man X then falsely testified that [emphasis mine]:

[She] did not have a house[83]

This is in spite of his own first work plan having identified that there was a dwelling in the shed[84], but then he subsequently contradicted again himself by testifying that:

I knew you had a weekender in the shed there, yes.[85]

The house we had was not a “weekender” – it was a one-bedroom dwelling that was fully insulated, with double glazed windows and a solar hot water system, wood heater, with full kitchen and bathroom/laundry, lounge and study, and my husband and I lived in it full time as our sole residence for a number of years. Regardless of he fact of the house, he testifies as truth that I didn’t have a house but then he testifies as truth that I did: man X has absolutely no problem in giving contradictory and false testimony by lying under oath as it suits him. How can this not be false testimony? How can the courts say, “So what”?

Man X swore falsely about his health that was purported to be as a result of my previous website

Man X further lied under oath and fraudulently testified, as absolute truth and fact, that:

Health wise it has certainly affected me…. Some people starve themselves when they are under stress, other people might eat more. I’ve certainly put a lot of weight on in the last couple of years. I’ve also had blood pressure tablets, I don’t sleep, an hour here or an hour there. It affects my family. I’m certainly not as easy going as I used to be[86].

This is clearly another case of false testimony, lying under oath, and gross exaggeration. If this really had been the case over months if not a year or more, it is suggested by the medical fraternity that such lack of sleep would have major medical and psychological impacts – for example, road safety messages to the public have warned that such sleep deprivation over merely a couple of days can adversely impact driver ability worse than a 0.05 blood alcohol level. One has then to absolutely doubt the veracity and truthfulness of his testimony because he was obviously not concerned enough or severely affected enough to have obtained medical treatment for the claimed sleep deprivation, and he continued driving long distances. Further, man X gave this unsupported testimony in relation to other purported health issues. In spite of his self-serving claims[87], man X was not hurt enough to get assistance in any manner that could have helped him or supported his claims; neither did he call any dietary, psychological or medical witnesses, or provide any dietary, psychological or medical evidence. Further, I had noticed in mid-2005 (8 years earlier) that man X was a very large man at that point[88], and I continued to observe that he steadily gained weight from then on – so nothing changed in his habits that could be attributable to the website or any of its publications in, or from, mid-2011. Further, he did not call any personal witnesses, including his wife, or his friend Kraan, or Kraan’s wife, who were all in court each and every day, and he provided no proof of his claim to blood pressure tablets or health impacts. How then can it not be false testimony? How can the courts say, “So what”?

Man X swore falsely about the site security at the quarry

Whilst the issue of lack of on-site security (inadequate fencing, unlocked gates …) at the quarry may appear to be relatively minor, the reason for inclusion relates to the continued lying under oath and the fraudulent testimony given by man X on this matter. The truth is that, from 4 August 2009 when the time works commenced, the quarry site was never secure. In spite of that fact man X swore at trial [emphasis mine]:

It is secure.[89]

The quarry gates and the quarry surrounds are locked.[90]

When specifically asked when he put a lock on the gate on the corner of Pearce and Neerim North Roads, man X’s sworn testimony was that

I think probably after you complained about it about two or three years ago.[91]

When further asked about that gate into the quarry, man X testified that:

No-one could drive in there…[92]

The entrance that [she] is referring to is an access to one of the paddocks the farmer leased. It’s since been filled with overburden and some bunds put on it. There’s no access through then in [sic] more.[93]

When asked how long the overburden and bunding has been in place, man X swore:

Two years.[94]

Further, man X admitted that photos on the website revealed the lack of security, thereby proving the truth of the website publications, the falseness of his testimony, and his lies under oath that the site was secure, and that he therefore knew his testimony had been absolutely fraudulent, and that he knew the truth when he sworn falsely[emphasis mine]:

Me: I can produce photos here and now.

Man X: I know, they have been on the web page.

Me: That don’t have a lock on the gate.

Man X: All right.[95].

Man X’s lies under oath and false testimony was given well over a year after the VCAT enforcement hearing at which I contended that the site was not secure, and to which man X strongly averred in his lies under oath at court, his previously fraudulently sworn testimony at VCAT, and in his sworn affidavit at VCAT that the site was secure. The fact is that I had never seen the site secure – rather, I had seen gates left wide open when no-one was in attendance, other gates unlocked, fencing slack and some of it as little as 3 loose wires.

The reality is that, certainly up until February 2014[96] (almost a year after man X swore to the security of the site), anyone could readily and easily access the land in spite of man X having falsely testified by lying under oath that it was secure and locked and that the site could not be accessed from that location.

My related party had been forced to sell its land in February 2014 due to man X and man Y’s fraudulent actions and deceptions, including by lying under oath, so the site is possibly (and I would say probably) still unlocked! A copy of photographs of the lack of site security, including photos taken on 12 May 2013 (a month after man X’s testimony at Court), were supplied to the court.

In relation to man X’s sworn statement of the bunding having been done “two years” prior, this was not true – the construction of the bund area commenced in January 2012, making it a little over one year earlier. A copy of photographs of the commencement of the bunding, were provided to the court.

Man X continued his false testimony about the site security [emphasis mine]:

Me: So the gate to the immediate north of the quarry entrance, which I have never seen it locked in the three and a half years – – -.

Man X: But that’s not to the quarry, …. That’s your interpretation of the facts again. [97]

Man X: Our block of land is 280 acres. … The quarry sits on about five to eight acres of it. Some of it is bush, some of it is pasture and we lease the land that is pasture to the neighbour, the neighbouring farmer who hasn’t got access to the quarry but he’s got access to the paddocks around the quarry. … He quite often leaves the double gates open into the paddocks after they have been taken out. It doesn’t mean that there’s no security on the quarry. The quarry gates and the quarry surrounds are locked.[98]

The reality was:

Man X and man Y’s planning report clearly identified that the size of the quarry (the work authority area) was 43.72ha, not the 5-8 acres (02-3.24ha ) falsely claimed by man X.
The work plan dated 12 May 2009 at sections 1.2 and 4.2 and Figure 4 each defines the work authority area, the total area being 43.72ha, not the 5-8 acres (02-3.24ha ) falsely claimed by man X.
Planning report dated January 2008 at section 2.1 and its Appendix 4, show the total area being 43.72ha, not the 5-8 acres (02-3.24ha ) falsely claimed by man X.
The entire work authority boundary (i.e. the entirety of the 43.72ha) is the area that must be kept secure.

Man X and man Y’s work authority conditions state [emphasis mine]:

5. Public Safety

4.1 [sic] The Work Authority holder must ensure that public safety is maintained within the Work Authority area at all times, including through the use of fencing, gates and signage as required around the work area.

4.2 [sic] The Work Authority holder must ensure that all fences are maintained to prevent access to the work site and that all gates are locked when the work site is unattended.

The court was shown all this information and yet found nothing wrong – how can it not be false testimony? How can the courts say, “So what”?

Man X swore falsely about me in VCAT

Man X lied under oath by falsely testifying, as fact, that I had mouthed to him at VCAT “liar, liar” while standing behind my then barrister:

[W]hen I was giving evidence at VCAT [she] was standing behind her barrister and [mouthing] the words “liar, liar” as I gave evidence.[99]

(1) Whilst I do claim that man X was in fact repeatedly lying under oath at VCAT, I did not actually say or mouth that or anything like it. If he actually thought it was true at the time, why did he not make an objection at VCAT; (2) just as in court, one does not stand behind their counsel in the tribunal, they sit; and (3) and my recollection is that when man X was giving evidence, he seemed to studiously avoid looking at me and therefore would not have seen anything if I had mouthed anything. If he did look at me he may have seen me whispering to my then barrister as I was leaning forward in my seat instructing him. In fact, proving the likelihood that he did not even look at me, he swore at court that:

I do not talk to you, I do not acknowledge you. … I’m not angry, I’m just avoiding you like the plague[100].

Simple logic as well as knowledge of protocol, tells you that his testimony is fraudulent and that he lied under oath – so how can the court say it was not false testimony and say “So what”?

Man X swore falsely in relation to the work done on a waterway

I had observed that there are situations that reveal man X’s extremely willingness to give fraudulent testimony and lie under oath in order to avoid truthful admission unless absolutely and categorically pushed into a corner. For example, in relation to the works on waterway [emphasis mine]:

Me: There’s a works on waterway application that is required – which was supposed to be required before stage 2 commenced but that’s been disregarded at this point in time, with the consent of catchment management? … Mr Peake told the tribunal that if we objected to that application that it would stop the quarry, do you remember him saying that?

Man X: No. …

Me: You haven’t applied yet for that permit, is that correct, or have you applied for the permit?

Man X: We have had numerous discussions and we have done all the research for it. Whether that application is in, I’m pretty sure it is.

Me: So you’ve actually filled out an application for that works on waterway permit?

Man X: I’m not so sure on that, ….

Me: Do you intend to?

Man X: Yes.

Me: Have you done works on waterways before without a permit?

Man X: I know what you are leading to and I will say no.

Me: So the works that you did on 20 August 2009?

Man X: Yes.

Me: And further works that you did on 29 August 2009 had a permit even though you applied for one on 1 September and got it on 4 September, so that wasn’t retrospective?

Man X: That’s a better question ask Mr Dunn when he comes.

Me: I’m asking you, did you do works before an application?

Man X: All right. It’s stated in conditions set down – – –

Me: Had you put in an application, please, I’m asking. I’m not asking for elaboration, had you put in an application for the works before they were done? … So can we have actually a definitive answer to that, did you perform the works before you put in an application for a permit?

Man X: We had been talking to – – –

Me: Is it a yes or no, please. This is for the works done in August 2009?

Man X: Let’s say what the works were first, yes.

Me: They were first?

Man X: Let’s say what the works were before I answer that question. The VCAT decision and that condition – – –

Me: No, excuse me. … There was a pipe dug or an excavation in the bed and banks of the waterway which I will call Kookaburra Creek because that’s what it’s locally known as, so there was an excavation dug and a pipe laid in that digging, is that true, yes or no?

Man X: That’s true.

Me: Did you have a works on waterway permit to do that before you did that?

Man X: We had an agreement that we could do it.

Me: I asked did you have a permit?

Man X: We had an agreement to do so and the permit was taken out about two days later.

Me: The works were done on about 20 August, the application went in on 1 September, that’s hardly four days or a couple of days?

Man X: … the works were – – –

Me: I just asked, did you do the works before or after you had applied for the permit and the answer is yes, you did?

Man X: We had spoken and liaised with that permit.

Me: The answer is yes, you did, is that correct?

Man X: Okay, yes.[101]

Here we have Man X, having sworn to tell the truth, the whole truth and nothing but the truth, claiming to be honest and upright, a man of integrity, and that he takes his oath very seriously, attempting to dissemble and seriously and strenuously avoid giving a truthful answer until, under significant pressure, he finally told the truth (is that not at least contempt of court?). Man X has thereby shown that he is more than willing to prevaricate around the question, and not tell the truth unless absolutely forced to do so. After all the above hedging, man X gave testimony under subsequent re-examination that they had indeed done the work prior to being granted the permit to do so [emphasis mine]:

[I]t was probably about one or two days after it was done that the permit was signed.[102]

Further, he subsequently testified that he absolutely knewthat he had to obtain a permit priorto doing works on the waterway, thereby acknowledging that he knew that they had performed the works illegally [emphasis mine]:

The agreement to work on waterways was handed down by VCAT but they said we had to apply for a permit to do so before acting on that waterway.[103]

Man X also lied under oath and gave fraudulent testimony that they had not impacted the waterway [emphasis mine]:

So there was a culvert put in for the water under the road and this bund. The water still exited at the same point on the waterway, the same water and it wasn’t interfered with.[104]

Yet he had personally signed the terms of settlement agreement to restore the flow that he and man Y had illegally deviated – so that was more false testimony and lying under oath. A copy of some of the photos of the unlawful and unauthorised deviation of the flow were supplied to the court, as was the application and permit. The reality is that man X has shown that he will lie under oath, and give clearly fraudulent and contradictory testimony as it best suits him in an effort to do what it takes to win the case. How can it not be false testimony? How can the courts say, “So what”? Further, theVictorian Parliament Law Reform Committee’s Administration of Justice Offences – Final Reportstates about this [emphasis mine]:

What is the position when an accused contradicts a statement he or she made earlier? Is this sufficient to corroborate the falsity of one of the statements? The common law position as applicable in Victoria seems to be thus: contradictory statements are only evidence that one of the statements is untrue. They are not sufficient proof of perjury. If, however, one of the statements amounts to a formal admission of the falsity of the first statement, then this willbe sufficient corroborative evidence to convict.[1][2]

The classic common law definition of perjury is derived from the following passage in King CJ’s judgement in R v Traino:[3]

The crime of perjury consists in giving upon oath, in a judicial proceeding, before a competent tribunal, evidence which was material to some question in the proceeding and was false to the knowledge of the deponent, or was not believed by him to be true: WO Russell, Crime: a Treatise (12^thed, 1964), Vol 1, p. 291. The crime consists in the making of a deliberately false statement in the postulated circumstances.[4][5]

[1] See R v Sumner[1935] VLR 197

[2] Pages 241-242

[3] R v Traino(1987) 45 SASR 473

[4] Ibid, p. 475. This definition is cited in Butterworths Concise Australian Legal Dictionary, above note 11, p. 333

[5] Page 189

Man X uses prevarication to avoid answering another cross-examination

Man X also sidestepped answering other questions put to him and one such example follows:

Me: I also put to you that 2008 was the very first time that there was any court – any action and that was at the tribunal, that was the review tribunal, and I was only one of 28 people who objected to your application and that was only in regard to the application.

Man X: I put it to you we bought the land with your knowledge, you knew we were doing it before we bought it.[105]

The answer clearly does not relate to the question put. Further, it is of absolutely no relevance and is, in fact, illogical – how is the knowledge that I supposedly knew what he and man Y were going to do in any way relevant to anything other than that the knowledge in fact (1) substantiated my objections to their permit application and (2) proved that the actions I took against them were not vexatious? How is evading answering the question not false testimony? How can the courts say, “So what”?

Man X swore falsely about financial impacts

Man X and man Y (and CASACIR) had each overtly dropped the claims of injurious falsehood[106] and had not pleaded any financial losses in relation to defamation. Therefore, man X was testifying fraudulently when he testified that [emphasis mine]:

This … has affected us financially[107]

Other people made notices about – they were aware of the Quarry Fight website and the ongoing disruption to our business.[108]

This testimony was fraudulent and, even if it was true, was not relevant to the defamation case as it had not been pleaded and was not substantiated by way of any details or evidence. Further, there was no disruption to the business and certainly no “on-going” disruption given that the words complained of had been removed from the website 14 months earlier, and the entire website had been removed from the internet some 6 months previously. Obviously man X wanted this to be a covert part of his claims without the need for substantiation because if any of those loses claimed had been real losses, the loses would, according to man X and man Y, have been considerable on their own and combined together would have amounted to many millions of dollars – and the discarded claims would have been maintained. In addition, they both brought yet more hearsay into their false testimonies and lies under oath. How can it not be false testimony? How can the courts say, “So what”?

Man X swore falsely about the police

Man X falsely testified by lying under oath that [emphasis mine]:

The police told me not to talk to because you record everything and you are taking photos of everybody from a distance.[109]

Firstly, this is hearsay and man X did not bring in the purported policeman or policewoman to give such testimony. Secondly, it is excessively unlikely to be true because I had not spoken to the police about it and, unless I was under police supervision the police had no way of knowing whether (1) I even possessed a voice recorder, or that, (2) if I did, whether I used it to record anything let alone “everything”, and, (3) the police had no way of knowing whether I took photos at all, let alone “of everybody”. Not only was man X’s testimony knowingly fraudulent, but was ridiculous and lop-sided because man X took photos of me and others, including causing danger to us and by acting in an intimidating manner by blocking roads in order to take the photos. A copy of some of the photos of man X blocking the roads, harassing us, and taking photos was supplied to the courts, as was a report by a witness. This testimony was simply man X’s attempt to defame me and to try to further their false claims that I was vexatious. The courts again ignored the proofs, but how can it not be false testimony? How can the courts say, “So what”?

Man X swore falsely about a meeting held with my then solicitor

My then solicitor, who I will refer to as Mr C, had arranged a meeting at his city offices between man X and man Y and me with regard to a potential sale of my related party’s land to man X and man Y. Man X subsequently lied under oath by falsely testifying as unwavering fact that Mr C had told both man X and man Y that he (Mr C) did not want them to talk to me because they had been “hoodwinked or bushwhacked” by me[110] because two other neighbours had come to town in order to see if they could have a meeting with man X and man Y (but they knew that it was possible that the answer would be no). Man X testified:

[Mr C] met us in the waiting room and said he wasn’t happy with what had happened, that he thought we had been hoodwinked or bushwhacked, I can’t remember the exact terminology…[111]

[Mr C] didn’t even want us to talk to you and you were his client, he felt that you had done the wrong thing in that meeting.[112]

Firstly, it is hearsay and man X has nothing to substantiate his claim – and even man Y did not give testimony about that. Secondly, that would have been extremely unprofessional of Mr C to have made the alleged comments. Thirdly, it is untrue because Mr C had organised the meeting directly with man X and, as an outcome of those preliminary discussions between Mr C and man X, Mr C advised me by email (1) that he had suggested to man X that there be discussions at the meeting with regard to Sue (one of the additional people who had come to town hopefully), and (2) that man X knew and understood that I would be wanting more for the land than market value to compensate for obtaining a new property. Man X and man Y had knowingly attended the meeting on those bases, but then claimed such a request was unreasonable, unjustified, was for an anterior and collateral purpose, and they claimed aggravated damages as a result – and man X claimed that they had been ambushed. If man X is prepared to uphold his fraudulent hearsay testimony that Mr C had breached his ethical and legal responsibilities to me in such a gross and extraordinary manner, perhaps the court needs to call Mr C to give testimony. A copy of the email trail of 9 February 2007 from Mr C was supplied to the court – proof that man X deceived the court by lying under oath and giving false testimony. How can it not be false testimony? How can the courts say, “So what”?

Man Y swore falsely about their property compared to mine

Man Y committed fraud by deceitfully and dishonestly testifying, presumably in order to try to mislead the court into believing that my related party’s land was much less valuable than the quarry land, and to try to substantiate his and man X’s knowingly fraudulent claim for aggravated damages, that [emphasis mine]:

[S]uffice perhaps to say that our 288 acres with all that rock under it we paid $1.35 million for and she’s talking about a much smaller property with no rock on a slip plain and we had a lot of prime pastoral land and she was talking about 1.2 or whatever the figure is, which to my mind is ridiculous.[113]

The point I was making was that you wanted $1.2 million for land on a slip plain that was barely pasture when we paid $1.3 million for about five times the area and most of which was good pasture and had beneath it a massive quantity of high grade basalt. It to me points to the fact that your pricing is ridiculously high.[114]

However, there are a number of issues that show that man Y’s sworn testimony was knowingly fraudulent and that he lied under oath:

The land bought by man X and man Y was approximately 288 acres and my related party’s land was approximately 107 acres – that makes the their land about 2.7 times the size of the my related party’s land, not the grossly exaggerated 5 times claimed as fact under oath – man Y had documents which revealed the size of my related party’s land, and he knew the size of his own land – therefore he knew what he testified to was fraudulent.
Over two-thirds of the quarry land is in the same erosion management overlay as my related party’s land – neither are in a “slip plain” as fraudulently claimed under oath – man Y either had documents which revealed the overlays on my related party’s land and therefore knew he was lying, or he did not know in which case he knew he was lying because he could not make such a blatant unequivocal claim without knowing the truth – therefore he knew what he testified was fraudulent.
Two-thirds of my related party’s land was excellent grazing (the remainder being fenced off revegetation), while only approximately 100 acres of their land (i.e. only 37%) was reasonable to good pasture, not the “most” as fraudulently sworn to as fact by man Y under oath – he had the responsibility to discover the facts about my related party’s land but did not, and he knew the lack of quality of most of his own land given that geologists had produced those reports for him.
My related party’s land had a house, extensive track-work and excellent fencing, and their land did not – man Y knew all these facts by observation and documents in his care and control, which proved that he knowingly lied under oath.
My related party’s land had good water reticulation and for the most part their land did not – if man Y did not know this about my related party’s land, he had the onus of discovery but did not to do so, thereby choosing to give fraudulent sworn testimony.
My related party’s land had electricity, telephone and internet, and according to their own work plan, their land did not – man Y knew these facts from documents in his care and control yet he deliberately chose to give fraudulent sworn testimony.
Man X and man Y paid $1.3 million in mid 2006 and my related party was asking $1.2 m in 2010, 4 years later (after prices had risen markedly), and that price was based on other land for sale at the time – man Y knew the timeframes and prices, yet deliberately made fraudulent claims as fact.
The quality of the rock under my related party’s land has never been explored, but over two-thirds of their land, if there is rock there (of whatever quality), cannot be quarried due to the steepness, tree density, and the proximity to the Latrobe River – man Y knew these facts, yet chose to give fraudulent sworn testimony as fact.

How can it not be false testimony? How can the courts say, “So what”?

Man Y desired to get in the witness box and give [false] testimony

Southall told Pagone J as absolute fact that man Y wanted to get back in the witness box and [fraudulently] swear that he knew nothing about documents that were actually in his care and control (and some of which were contained in the affidavit of documents that he personally swore to and Southall settled and reviewed just days before the trial) – Southall thereby supported proposed fraudulently sworn testimony, knowingthat it would be false [emphasis mine]:

Your Honour, [man Y], and I seek leave - [man Y] desiresto give evidence, and his evidence will be to this effect: That he can confirm that he didn’t receive anything in writing to that effect[1].

Man Y was acknowledged to have given false testimony

Southall justified and excused man Y’s knowingly fraudulent testimony as a “throw away line”: His Honour was suitably affronted [emphasis mine]:

Mr Southall: Just going back to that, at transcript page 258 what [man Y] said, he said nothing more or less than a throw-away line… He said that as a throw-away linein the witness box.

His Honour: It wasn’t a throw-away line.

Mr Southall: Well, it was a statement from the witness box.

His Honour: It was a bit of evidencefrom the witness box.[2]

[1] T467:8-11

[2] T560:10-12, 17-21.

Man Y desired to get in the witness box and give [false] testimony

Your Honour, [man Y], and I seek leave - [man Y] desires to give evidence, and his evidence will be to this effect: That he can confirm that he didn’t receive anything in writing to that effect[1].

Man Y swore falsely about a meeting that didn’t happen and a conversation that did not take place

Man Y committed fraud by deceitfully and dishonestly testifying under oath in relation to a claimed meeting that had never happened, and in relation to a conversation that never took place. The third iteration of his statement of claim[115], and man X and man Y’s responses to my request for further and better particulars (that man Y admitted that he helped prepare), had put together an adamant claim that I had actually, personally and physically attended man Y’s office, and had had a very specific conversation with him at that time [emphasis mine]:

In or around 2008, [she] stated to [man Y] that ‘it could all go away if you negotiate with me’.[116]

On a subsequent occasion, [she] asked [man Y] to buy [her related party’s] land while in his office.[117]

In spite of those clear and unambiguous (and grossly fraudulent) documented claims filed with the court as absolute and unadulterated fact, man Y at first testified truthfully [emphasis mine]:

Man Y: The only real contact I’ve had [with her], other than that meeting in the solicitor’s office, has been at VCAT and at various mediation meetings[118]

Me: You said that we have only met a couple of times, basically at VCAT, the mediation and at [Mr C]’s office?

Man Y: To the best of my recollection, yes.

Me: That’s to the best of my recollection also but I notice in your response to my request for better and further particulars that you actually said that we had a meeting in your office. I would like to know when that meeting took place and what it was regarding because I don’t even know where your office is, other than it’s in Lilydale.

Man Y: I don’t recall it either.

Me: That makes two of us because that’s actually in your – – – … Under paragraph 15 thereof it says: “On the subsequent occasion the defendant asked the second plaintiff to buy the Shapher land while in his office”?

Man Y: I think it might mean the other plaintiff was in my office.

Me: Because I’ve never been to your office.

Man Y: I certainly hope not.

Me: I’m glad that we are in agreement there, but it does call into question things that are said.[119]

Southall (who knew that the written claims were entirely fraudulent being that he had settled both documents), re-examined man Y so as to elicit the following false testimony:

Mr Southall: Just one question. Early on in the cross-examination, … it was pointed out correctly by [the defendant] that in paragraph 15(b) of the further and better particulars to the statement of claim there was a statement that there was a meeting where [the defendant] met you in your office. Do I understand from an answer you gave you don’t recall any such meeting?

Man Y: That’s correct.

Mr Southall: If that was in the further and better particulars, does that appear to be a mistake?

Man Y: Yes, without sitting down and reading it thoroughly, I would have interpreted it that the meeting what in my office between [man X] and I regarding the issue[120].

The claim had been deliberately added to a third iteration of their statement of claim and later to their further and better particulars, and the information had been provided by man Y. It clearly and unambiguously stated that the alleged meeting took place between himself and the “defendant” – that’s me. There was no mistake – there can be no grounds for interpreting that the meeting took place between man X and man Y, particularly given that it related to that specific alleged conversation that I was supposed to have had with man Y (but didn’t). What we can see from this is that when confronted by the fraudulence in his documentation submitted to the court as absolute and resolute truth and fact, man Y attempted to divert attention from the fraudulent claims by presenting a totally implausible alternative fraudulent “interpretation” under oath.

This is but one of a number of such meetings that were alleged to have taken place but did not, and with purported resultant conversations that did not occur. All this does show that man Y was willing to, did, and does, approve and authorise documentation that are filed with the court as absolute and unwavering fact but which are actually fraudulent, inaccurate, deceptive, and misleading, and then he gives deliberate and knowingly false testimony by lying under oath, regarding it. This was exhibited to the courts, which they ignored. How can what he swore under re-examination not be false testimony? How can the courts say, “So what”?

Man Y desired to get back in the witness box and swear falsely

Man Y committed fraud by instructing Southall to tell the court as absolute fact that he absolutely and fervently “desired” to get back in the witness box and (thereby fraudulently) testify that he knew nothing about certain documents [emphasis mine]:

Your Honour, [man Y], and I seek leave -  [man Y] desires to give evidence, and his evidence will be to this effect: That he can confirm that he didn’t receive anything in writing to that effect[121].

This was fraudulent given that some of those documents he desired to testify that he did not have were actually in the affidavit of documents that man Y testified under oath that he had in his care and custody, and the other documents were in his care and control, regardless. How can that not be a willingness to give false testimony? How can the courts say, “So what”?

Man X and man Y believe that giving false testimony is a small and/or trifling matter with which the court should not concern itself

In fact, we see the gross lack of importance of the truth when man X and man Y both authorised Southall telling their Honours, Santamaria, Kyrou JJA and Elliott AJA that such matters as false testimony was a small or trifling matter [emphasis mine]:

[T]he purpose of finality is to put an end to the re-litigation of small matters, of minutiae – and I hesitate to use the expression – de minimis non curat lex… Or any matters, but in this case small matters such as the issue of who attended a mediation on a particular date; such as the weather [sic] there were 23 or 40 days spent at VCAT; whether there was dust being created at any particular time. In the context of this case, they are what could be said to be small matters, or trifling matters even. If they can give vent to are renewal of issue by way of re-litigation, then the principle of finality of litigation really is put in serious generally insofar as it constitutes a very proper and basic principle of law. …… [T]he point that I  was making in this case, is that, it’s a situation where [she] had raised these issues, which we contend – we’re not saying that they were found to be small, we contend they’re small matters, or trifling matters, before His Honour Justice Pagone, and again raised it in her argument in front of His Honour Justice McDonald.[122]

It must be noted that details of the examples used were (1) that man X had fraudulently claimed in sworn testimony to know what happened in a closed mediation where he was not present and no-one from his side was present[123]; (2) both man X and man Y pre-planned, collaboratively and deliberately swore to 40 days in VCAT in order to grossly exaggerate what had happened; and (3) the dust issues related back to what was fraudulently sworn by man X at VCAT and which fraudulent testimony both man X and man Y admitted man Y had approved[124]. Whist the three topics quoted by Southall are themselves are not of great concern, what is of extreme concern is that fact that they are just some of the many times where the men gave knowingly and deliberately fraudulent sworn testimony, and that they believe that it is a small and trifling matter to have lied under oath, fraudulently sworn in their testimony, to have personally deliberately misled and deceived the court, and to have obstructed and perverted the course of justice.

Other considerations

Man X is in charge of the quarry, he approved the documents identifying the area of the quarry and therefore he deliberately and knowingly again lied under oath in order to try to cover for his other false testimony. If man X is so unknowledgeable about the relevant and important facts concerning the quarry, one has to question if he is a fit and proper person to be in charge of it. Southall submitted as fact that:

He will say that in order to be a quarry manager, as he has been for many years, he is required to be a fit and proper person. He has to obtain certificates to that effect through the Department of Primary Industries[125].  

Regardless, I contend that man X’s testimony was knowingly fraudulent and that he deliberately twisted facts and lied under oath.

Man Y is a member of the AustStab, as noted in addresses by his barrister:

For example [Man Y] was president of AUSTAB [sic], which is short for the Australian Stabilisation Association. In that capacity he’s had to attend a number of industry functions and people at those functions were talking about the Quarry Fight website when it was on the web[126].

The AustStab code of ethics states:

Policy Statement:

All members, employees and representatives of AustStab are required to conduct themselves in a professional and ethical manner at all times in the course of their employment. It is essential that we all respect each other, our customers and clients, the community, people of diverse ethical backgrounds and the Association resources and reputation. Members should at all times abide by the technical standards set down by the Association’s specifications.

Code of Behaviour

All Members, Staff and representatives of AustStab are to adhere to the following requirements:

Behave in a lawful manner.  

Act within your delegated authority in accordance with the Association’s  policies and procedures, and any relevant legislative, industrial and  administrative requirements.  

Conduct yourself in a professional and ethical manner at all times while representing or working for the Association or when our actions can be associated with the Association.  

Not bring the Association or the industry into disrepute by your actions.  

Be aware of, abide by, practice and propagate the standards and principles  in accordance to AustStab’s published standards, specifications, guidelines, tips and technical notes etc.  

Discipline  

A breach of this policy may be grounds for disciplinary action, which could lead to termination of employment for employed staff, or termination of membership for Association members. Disciplinary procedures will be in accordance with the Articles of Association and member joining/accreditation process and will be undertaken through the Standards Working Group and ultimately the Association Council.  

I sincerely doubt that man Y would be at all happy to have the members of AustStab know of his conduct and, if the answer is that he would not be happy for them to know, then he knows that his conduct was very wrong.

The above were just some of the lies sworn under oath as absolute fact at court. Therefore, not only was there a gross miscarriage and perversion of justice caused by man X and man Y lying under oath, as stated, there needs to be an assessment of whether their false testimony was perjury – but the courts have refused to undertake any such investigation. It could be that, if they did such an investigation and I was found to be correct, they would have to undo judgments and orders and both men could be jailed and heavily fined given that giving false testimony is a criminal act.

There are those who would try to excuse both men’s conduct by saying that lying under oath can easily be attributed to making a mistake or exaggerating for the purpose of emphasising a point rather than for the purpose of lying or misleading the Court – however, when you swear that you will tell the truth, the whole truth and nothing but the truth, any deliberate “mistake”, “exaggeration” or embellishment of any sort for any purpose, goes well beyond the truth, the whole truth and nothing but the truth and is still lying under oath, is false testimony, and therefore should be determined to be perjury. If this is not so, then anyone can lie under oath with impunity and without fear. It should not matter if the lies had any bearing on the case – in many cases it is not determinable if it did have a bearing of not – who knows all the things that sway judges? The point is: did these men lie under oath, and if they did, then action should be taken against them for doing so because it is a crime – as noted at the start of this document, both Pagone J and Southall noted that lying under oath was a crime, and they did not give any provisos about it. I repeat one of Pagone J’s quotes from above to prove the point:

And that’s a criminal offence. If truth had been in issue in the case before me it would be relevant to ask whether he did give false testimony.[127]

It is therefore a shame that the matter cannot come before Pagone J again.

While a number of the instances of man X and man Y’s false testimony (lying under oath) could be deemed to be small, trivial or irrelevant, when taken together, it shows their extreme readiness (1) to ignore the oath that they each swore and which they said was so important to them, and (2) to exaggerate, twist facts, be blatantly and deliberately dishonest, and (3) to actively mislead and deceive the court – thereby perverting the course of, and obstructing, justice.

The truth is critically important and these men, their legal representatives and the court, have all treated, and are all treating it as absolutely immaterial. This is serious, it’s important – not just for me but for the so-called justice system because truth and honesty are supposed to be at the very heart of justice.

See other accompanying documents for further false testimony.

[1] T444:5-10

[2] T211:28–T212:1

[3] His Honour’s Judgment on the trial, Reasons at [13]

[4] T442:22-23

[5] T389:25:26

[6] T393:4-6

[7] T104:23-31

[8] T124:3-17

[10] Particularly to McDonald J of the Supreme Court, Santamaria, Kyrou JJA and Elliott AJA of the Court of Appeal, and Ryan R of the Federal Court.

[11] T143:12-17

[12] T155:19-23

[13] T143:5-8

[14] T143:9-11

[15] T144:13-17

[16] It became my business when man X lied under oath and claimed costs for doing so that totalled over $100,000, and I was forced to live next to the uncompliant quarry with significant dust billowing offsite, noise that was horrendous and the pollution and removal of the water (all unauthorised and unlawful activities).

[17] T155:19-23

[18] T156:7-10

[19] T239:1-3

[20] T253:20-23

[21] T234:9-12

[22] This claim is proved false by the repeated requirement that the Neerim North Road be pulled up and repeatedly replaced after his company’s work.

[23] By way of a letter from the solicitor’s letter dated 2 April 2012, entered into evidence as Exhibit B at the trial.

[24] T100:1-10

[25] T243:4-7

[26] T516:28–T517:3

[27] Judgment 2013, Reasons at [26]

[28] T31:26-28, T32:3-6, T32:8-9: “That road is, was er okay for starters, but over winter it broke up. Some of us got egg on our face. The er company that er did it is re-doing it. …It is booked in for in the next two weeks. … [O]riginally they thought it was strong enough to put a a layer of rock on it and seal it. Over the winter, it broke up in areas. And now they’ve done it again, and they are coming back in the next couple of weeks to stabilse it to an extra 400 and a load of rock and reseal it … There were a couple of patches in it last summer, yeah. …It has been a problem.”

[29] Page 4 of the record of discussions taken at the community meeting on 27 September 2010: “Casacir were required to construct and seal that section of Neerim North Road between Palmer Road and the quarry entrance. This was done in mid 2009. Unfortunately with the wet weather this winter, the sub-pavement became saturated and the pavement failed. Casacir will have the road reconstructed and sealed”. Page 8: “They have been told to repair the road. It was not done properly in the first place. … There was insufficient drainage. Next time, the road will be re- compacted and stabilised pavement used. That was not done the first time.”

[30] T200:13-15, T201:9-11, T202:29-31: “This road had to be built before we could commence operation of the quarry and the road was built. [The defendant] is talking about a future failure of that road and it had to be redone…. [Y]ou are referring to the works that were done on the rework on that road after it failed by the same contractors…. It was sealed after the remedial works. There were some failures in it, it was strengthened and then resealed and it’s going to be resealed again”.

[31] As evidenced in this document

[32] T246:19–T247:10

[33] T257:10-17

[34] T99:9-12

[35] s24A of the Supreme Court Act 1986 and s92 of the Victorian Civil and Administrative Tribunal Act 1998

[36] T224:31–T225:1

[37] T168:4-7.

[38] T144:19-24.

[39] T146:7.

[40] T146:5-14, T168:4-7.

[41] T180:6-9. I countered this at T180:31–T181:6. It is important to note that CASACIR had not ever had a work authority at that site until 20 July 2009 and it was never unendorsed.

[42] e.g. that the watercourse effectively flowed uphill, and that there were “no land disturbing works” where they intended to dig a large dam, …

[43] T181:4-8

[44] T180:11-23 & T181:7-16

[45] This was replaced by the Mineral Resource (Sustainable Development) Act in 2010

[46] The planning report at [3.4], written by Kraan, and approved by man X and man Y

[47] this is a legal requirement

[48] It should be noted that this new work plan contained information that had not been presented to the VCAT members who were deciding the review and who granted the permit based on the content of the previous iteration.

[49] So they had deliberately chosen to delay commencement for 14 days after they could legally commence.

[50] T167:1-4

[51] T170:10-11

[52] An appeal of the costs in relation to a VCAT determination

[53] T564:4-5

[54] T220:13-14

[55] T385:17–T387:4

[56] T568:6-7

[57] They only performed some of the terms agreed to, but only after threats of further legal action, but then proved that they were going to ignore the entirely anyway.

[58] This is shown by their failure to restore the flow until after threats of further legal action, and also within their Spring Water Management Plan, where they stated that they intended to permanently remove the flow of Kookaburra Creek from the Shapher land and replace it with quarry wastewater and drainage discharge – without discussion, or agreement and in breach of the terms of settlement – clearly their words is worthless.

[59] Although this accusation was aimed at me rather than the company.

[60] 20((j)“as to [man X’s] statements”, 29(j)“as to [man X’s] representations”, 20(c)“as to [man Y’s] statements”, 29(c)“as to [man Y’s] representations”

[61] 20(k)“as to Casacir statements”, 29(k)“as to Casacir representations”, 20(q)“as to Casacir statements”, 29(q)“as to Casacir representations”, 20(r)“as to Casacir statements”, 29(r)“as to Casacir representations”

[62] T168:1-4. At that time, the only court case was in relation to the appeal of the VCAT costs and it was held over a day and a half.

[63] T170:14.

[64] T236:18.

[65] T277:19.

[66] T146:27-30.

[67] T234:1-2

[68] This is in spite of his wife and Kraan (who is a friend and a specialist in the industry) and Kraan’s wife, each sitting in court every day and not testifying on his behalf.

[69] He spent time with the legal team preparing his witness statement and proof of evidence, and his witness statement (or parts thereof) was read aloud. He knew when he was supposed to be in the witness box, but was purportedly “too busy” to actually come and support his father and fellow shareholder. It must be remembered that the timing of other witnesses was flexible and accommodated, so clearly man Y’s son was not willing to come at all.

[70] T322:5-8

[71] T147:31–T148:1.

[72] T148:6-8.

[73] T148:13-14.

[74] T148:26-27.

[75] T245:24-29

[76] T239:25-26

[77] The Evidence Act 2008, s 59(1): “Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation”.

[78] T97:21-31

[79] T146:5-16

[80] T303:25–T304:8

[81] His fraudulent claims are further proved by pages 12, 13/14, 15 and 16 of his response to my request for further and better particulars dated 25 May 2012

[82] T171:1-2

[83] T139:29-30

[84] This is in the identification of a “sensitive use” paragraph 7.1 of their first work plan, as referred to in paragraph 33 above.

[85] T177:5-6

[86] T145:20-27

[87] So called by his Honour at T59:27–T60:1

[88] I advised the Court of this and it was not gainsaid (T455:12-13).

[89] T205:27

[90] T206:24-25

[91] T206:3-4

[92] T207:16-17

[93] T230:7-11

[94] T230:15

[95] T207:5-6

[96] When my related party was forced to sell its property on the open market because of man X’s lies at VCAT (which man Y admitted he had approved) – for a $365,000 loss due to the quarry and its impacts.

[97] T205:30–T206:3

[98] T206:12-25

[99] T146:22-24

[100] T180:26-28

[101] T193:28-T197:27

[102] T228:18-19

[103] T228:6-9

[104] T228:14-16

[105] T170:22-28

[106] As well as misleading and deceptive conduct

[107] T145:16-18

[108] T148:6-8

[109] T169:26-29

[110] T181:31–T182:6 & T182:17-28

[111] T157:19-22

[112] T182:4-6

[113] T248:2-7

[114] T280:2-8

[115] Dated 2 March 2012 – in other words, the fraudulent claim had been deliberately added 3½ months after the 1^st iteration, and 20 days after the 2^nd iteration.

[116] Statement of claim dated 2 March 2012, in the particulars of paragraphs 26, 27 & 28

[117] Man X and Man Y’s response to my request for further and better particulars dated 25 May 2012, “Under Paragraph 15(b) thereof” and “Under Paragraph 21(b) thereof”. “Under Paragraph [26/27/28] thereof”, man X and man Y refer back to the admittedly false allegation that I had met with man Y at his office.

[118] T234:31–T235:3

[119] T251:31-T252:21

[120] T281:10-22

[121] T467:8-11 (Southall told the court as absolute and determined fact that this was what Man Y wanted to do)

[122] T106:27-31, T108:10-17

[123] This would be similar to a claim that he knew what happened in court chambers, or in your bedroom, when neither he nor anyone from his side was there.

[124] It must be remembered that man Y is a director, shareholder and representative of CASACIR. This admission of acceptance of fraudulent misrepresentations in sworn testimony and affidavits was in the first 5 iterations of their statements of claim at “as to the Casacir [representations/statements] at [20/29](p)” [emphasis mine]: “Casacir and its representatives have not provided provably incorrect sworn information to VCAT. Its representatives at all material times reviewed carefully the affidavits which they swore in the VCAT proceedings, were careful in giving oral evidence, and were justified in making statements that they made to VCAT.”

[125] T87:26-30

[126] T110:16-20

[127] T212:1-3