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.
Their fraudulent claims they had complied at the Jindivick quarry
Council owned most of the land that was quarried by man X, man Y, and CASACIR at their “Jindivick quarry”, and had issued the planning permit over the land. Therefore, council had clear responsibilities to ensure that the conditions were met. DPI had the responsibility over the work authority issues of the quarry and had the responsibility to ensure that the site was safe, secure, and compliant.
Man X, man Y, and CASACIR made the following claim[1] that:
[CASACIR (and therefore, [man X and man Y]) had] a history of non compliance with planning and/or work permit [sic] conditions, as in addition to its non compliance at the Neerim Road North [sic] quarry, it has also failed to comply with requirements at its Jindivick quarry.
They clarified their stance[2] that [emphasis mine]:
Casacir does not have a history of non compliance with planning and/or work permit [sic] conditions. There have never been any enforcement proceedings issued against Casacir in respect of its operations at its Jindivick quarry…. Relevant authority requirements imposed on Casacir’s Jindivick quarry were in fact imposed as a direct consequence of the destruction of fencing on that land during the Black Saturday bushfires of 7 February 2009; repairs to that fencing took place within one month of those bushfires.
Form the following photographs, it will become clear that they were not compliant and that, with the support of the regulatory authorities, it was okay to lie about it. When shown photos of a fence that was down on taken on Beattie Road (but not told which side of the quarry it was on), Anne Bignell (DPI) said that the poor section of fencing was on the race-track side – indicating that she knew that the fencing was severely inadequate on that side (too).
It is clear from the above photos (and I have many more) that nether council nor DPI cared to enforce compliance and did not care that man X, man Y, and CASACIR were in breach of safety.
This breach is further clearly exposed in relation to the fencing: as you can see from the date stamp on the photo below, over 3 months after the Black Saturday fires the fence was still down, in direct contradiction to their fraudulent claim to court that the fencing had been done within one month – one of the photos of the fencing down is below.
The fact is that even after the new fences were eventually put up, there was no care or concern that they stay up, and the regulatory authorities clearly did not care either.
All tenements have to have the number signage on posts (e.g. WA128 for this quarry), but man X, man Y, and CASACIR did not comply with this at this quarry, not even on corner posts, and DPI and council did not demand compliance. The fact is that the only place the only WA signage was on the gate.
The tender requirement 1.7 for the operation of the quarry at Jindivick states:
No cartage of materials or other activity associated with the quarry operation is to occur on the unsealed section of Beattie Road
and condition 5 states
No buildings or stockpiles shall be located closer than 20 metres to the boundaries of the reserves of Main Jindivick and Beattie Roads
but man X, man Y and CASACIR used the roadside for storage of material regardless of the conditions and requirements and neither council nor DPI cared to enforce the requirement. A photo of some of the product stored on the side of Beattie Road in breach of conditions follow:
Then there is the additional issue of the issue of the amount of rubbish that was around the outside of the site.
The reality is that (1) compliance with legal demands were not met by man X, man Y, and CASACIR, (2) they lied about compliance to the Supreme Court in legal documents which the court was deliberately duped into believing were truthful, (3) compliance was not demanded by the regulatory authorities, and (4) the breaches were actually overlooked and excused by the regulatory authorities. One has to ask: why was this acceptable on any count?
Lack of compliance with VCAT orders
There were a number of VCAT and court orders and directions that man X, man Y and CASACIR ignored, but I will focus on the resulting compliance orders against them in the water action taken in VCAT against them due to their illegal works on Kookaburra Creek.
After they performed the illegal works, I was forced to take action against them for the restoration of the flow. Their hydrologist produced a hydrological report for them and man X, man Y and CASACIR refused to file or serve it when directed and then ordered to do so.
Then they lied to the Member and claimed their failure to comply was due to not having received the document yet – however, a later bill of costs revealed that they had the document in their hand, and had already paid the hydrologist for it. The facts follow:
One of the issues I noted in my website, and to which man X, man Y and CASACIR took umbrage, was that they had failed to comply with orders of the Victorian Civil and Administrative Tribunal (“VCAT”) and with the demands of legislation. The following was in each of the iterations of their statements of claim, at paragraphs 11(j) and 12(c): “…that [the website publications] were meant and were understood to mean that [man X, man Y and CASACIR] had: interpreted orders made by the Tribunal how he wanted to interpret them rather than how they should be interpreted.”
The fact is that: (1) on 12 April 2010, VCAT made orders that man X, man Y and CASACIR file and serve their specialist’s report by 5 July 2010; (2) on 29 April 2010, man X, man Y and CASACIR photocopied the initial report by Neil Craigie (26 pages), their hydrologist (thereby proving that it was available); (3) on 7 June 2010 man X, man Y and CASACIR received their final report; (4) also on 7 June 2010 they paid their then barrister, Graeme Peak, to review and approve it; (5) also on 7 June 2010 man X, man Y and CASACIR copied the report for man X’s subsequent affidavit in a different and unrelated proceeding (thereby proving that, not only did they have the report, but the report was in a form that was very satisfactory to them); (6) on 7 July 2010 VCAT sent a letter giving notice to man X, man Y and CASACIR of their non-compliance (i.e. for not having filed or served their list of documents, nor their hydrological report that was ready, in hand, and available for service and filing one month earlier) – man X, man Y and CASACIR totally ignored the VCAT letter; (7) on 15 July 2010 VCAT sent a letter and orders regarding the continued non-compliance, but man X, man Y and CASACIR ignored this letter, and again ignored the orders; (8) on 27 July 2010 a compliance hearing was held (where man X, man Y and CASACIR had their barrister lie too the member and say that the document was not ready) – the result of that day was that man X, man Y and CASACIR had the time extended for compliance (for the filing an swerving of the report they had, at that point, had in hand for 50 days) to 10 August, but man X, man Y and CASACIR ignored the resultant orders; (8) on 11 August 2010 VCAT sent a further letter noting man X, man Y and CASACIR’s continued non-compliance – after that, and only after that, they finally served me with the document (just days prior to the date for the actual case). Man X, man Y and CASACIR’s resistance to mandated compliance, and denial of non-compliance, in the face of reality is extraordinary, and that conduct continued with other refusals to obey VCAT and court orders and directions. But let’s see what man Y and Southall said about that continued and deliberate non-compliance:
Man Y tried to avoid admitting that the documents related to man X, man Y and CASACIR’s non-compliance with VCAT orders:
Me: It’s document 32 in the notice to admit and there are preceding ones. So if we actually look at documents 29, 30, 31, 32 and 33. … under the, “Hearing type”, what does it say, please?
Man Y: Under?
Me: “Hearing type”, what does it say, please?
Man Y: Directions hearing.
Me: No, we are on document 32 which is – – -?
Man Y: I’m sorry, I’m on 29.
Me: 29 is the prelude to it, it’s says compliance hearing. It’s compliance hearing, they are compliance orders because Casacir hadn’t fulfilled the orders and letters from VCAT and even so, there was another requirement in document 33 for a further letter from VCAT before it was finally complied with. So I ask you again, has Casacir not complied with orders? Is that an interpretation that you don’t have to actually comply?
Man Y: You are asking me had I, not Casacir?
Me: You are a director of Casacir, Casacir can’t stand there and do something on its own, it’s an entity, not a person.
Man Y: I’m not suggesting that it can but I’m unfamiliar with this document.
Me: So not everything that goes on at the quarry is told to you then perhaps?
Man Y: Certainly not everything in the day to day, that’s why it has a general manager.
Me: I would have thought a compliance – – – .[1]
Then Southall interrupted and valiantly and deceptively tried to minimise the non-compliance with the VCAT orders and tried to make it seem mush more minor [emphasis mine]:
Southall: Your Honour, I rise to object because the cross-examiner is conflating something about compliance by the quarry with an order – with directions of an interlocutory nature. Does Your Honour have that order in front of you? It says this, and this is part of the objection because the cross-examiner is conflating it in her cross-examination to [man Y] with non-compliance with the operation of the quarry in certain respects. The orders are that: “The respondent must file and serve its list of documents by 3 August 2010, inspection by 10 August 2010. 2. Respondent must file and serve its expert reports by 9 August 2010. Leave to the applicant to file and serve any further material in reply as soon as possible”, and that’s before Senior Member Walker at VCAT and it’s a hearing type called a compliance hearingand that’s consequent upon a document coming from the senior registrar which says at the heading: “Non-compliance with VCAT orders, notice of directions hearing. It appears from the tribunal’s file the following directions have not been complied with. Respondent, failing to file expert evidence by 5 July 2010; respondent failing to file list of documents by 10 May 2010“, and then it says the direction hearing’s been convened and listed on 22 July 2010 which is the provenance of the matters that I read out to you earlier.
Pagone J: So what’s the problem with the question?
Southall: The question, in my respectful submission, as has so often happened during the course of cross-examination, particularly of [man Y] by [her], is that she is – is the word segueing or going from one topic of alleged non-compliance in this case with what I submit are the most ineffectual, inoffensive sorts of everyday direction orders made at VCAT into the conduct of the quarry and non-compliance with the quarry by others who are meant to be under your control and not under your control.
Pagone J: I don’t understand what the objection is. What’s your objection? It may be a good objection, I just don’t understand it.
Southall: The objection is that the question is unfair.
Pagone J: Because?
Southall: Because it’s too generalised, it’s not related to a specific issue of non-compliance.
Pagone J: Could I ask you, Mr Southall, can you identify the question which you tell me is unfair.
Southall: The question, the preceding question emanated from a statement by the cross-examiner, … about these documents at 29 and 30, I think, of her discovery which are referred to as different numbers in the notice to admit.
Pagone J: I tell you what, Mr Southall, the last question that had been asked was: “So not everything that goes on at the quarry is told to you then perhaps.” Then your client answered: “Certainly not everything you in the day to day, that’s why it has a general manager.” That was the last question and that was the last answer.
Southall: The question related to orders of VCAT, non-compliance with orders at VCAT.[2]
Note particularly Southall’s opinion that [emphasis mine]“…non-compliance in this case with what I submit are the most ineffectual, inoffensive sorts of everyday direction orders made at VCAT into the conduct of the quarry and non-compliance with the quarry…”. Firstly, he ignored the continued non-compliance and, secondly, this clearly identified man X, man Y and CASACIR and their legal team’s general attitude with respect to VCAT orders. In addition, you can clearly see that Southall’s claims that [emphasis mine] “it’s too generalised, it’s not related to a specific issue of non-compliance” is absolute nonsense since, it is clear from those documents that they relate to the very specific issue of man X, man Y and CASACIR continued failure to comply with orders relating to the filing and serving of documents for the water claim case against them where they had removed the water from Kookaburra Creek, and legal action had been required against them for that act.
In the first 3 iterations of their statements of claim in the Supreme Court, in paragraphs 20(j) and 29(j) relating to man X, and in paragraphs 20(c) and 29(c) relating to man Y, man X, man Y and CASACIR had claimed that [emphasis mine]: “[Man X &/or man Y] did not interpret orders made by VCAT how [they] wanted to interpret them rather than how they should be interpreted. All orders made by VCAT were implemented and followed by Casacir, [man X] and [man Y]…”
These false claims were made in spite of Southall acknowledging that there were compliance orders against man X, man Y and CASACIR for failing to comply with VCAT orders.
Further, his Honour, Justice Dixon, was clear also that [emphasis mine]: “Any practice of not obeying court directions … was contrary to the overarching obligations.[3]”
Denial of compliance notice in relation to dust
Man X, man Y and CASACIR failed to take heed of, and comply with, the conditions of the work authority, and the requirements of legislation, in this case in relation to dust. As a result, CASACIR (and therefore man X and man Y) had an s110[4] Notice served on them for dust violations for non-compliance with legislation.
In the face of reality, man X denied that the 110 Notice was an infringement notice against them for failing to comply, showing that man X, man Y and CASACIR had interpreted requirements as to dust as they liked: [emphasis mine]:
Me: Okay. Is the following fact the case that you said as an explanation for a claim in (j), and I use thewords, the explanation that you used in your statement as: “As to [man X]’s statements and as to [man X]’s representations”, so under (j) did you say: “Department of Primary Industries has attended the Casacir quarry land frequently for inspections as recently as September 2011 and has not issued any contravention or infringement notice as a result of such inspection”?
Man X: Yes.
Me: You did?
Man X: I did, yes.
Man X admitted that he said in their earlier statements of claim that they had pleaded that there had been nocontravention or infringement notices against them. Yet, in spite of that sworn testimony, he subsequently testifies that a 110 Notice was issued during that time. Not only did man X, man Y and CASACIR insert false and misleading information in their statements of claim (filed with the Supreme Court as truth and fact), but man X also maintained that the failure to comply Notice did not relate to failures to comply:
Me: Yet I’ve got a 110 notice here that is dated 9 August 2011?
Man X: Does that say infringement notice?
Me: It’s a notice under section 110 which is an infringement notice. It doesn’t – – -.
Man X: That’s only an observation, if you read it or get an opinion for it?
Me: It’s a compliance notice.
Man X: It’s an observation relating to dust.
Me: Yes, because of dust exiting the site when it wasn’t supposed to. You agree with that one, so that’s all right.[5]
In spite of man X’s denials, the Notice clearly and unequivocally stated [emphasis mine]: “Description of the contravention or non-compliance: The holder of the authority has not complied with a condition applying to the carrying out of the approved work plan by allowing fugitive dust generated by truck traffic and portable crushing plant to exit the Work Authority”.
Summary
I have observed from the above that man X, man Y and CASACIR do not consider that something that is legislatively required to be done actually has to be complied with (e.g. just because VCAT (or court) issued directions and/or orders does not mean that they had to be complied with, or that just because they have conditions relating to their work authority doesn’t mean that they have to comply with those conditions, or just because legislation says something has to be done doesn’t mean that it has to be done).
I have also observed from this that man X, man Y and CASACIR do not consider, although the Notice or an order specifies it is a non-compliance Notice or order, that it means that it is really is a non-compliance Notice or order – if that isn’t a clear example of how they interpret things as they want to, then I don’t know what is. Therefore, for man X, man Y and CASACIR to claim that they obey orders, Notices, and/or directions is extraordinary, misleading and grossly deceptive.
[1] T273:5-T274:3 (before Pagone J)
[2] T274:4–T276:2 (before Pagone J)
[3] “‘Timeliness in the Justice System’ Forum Reflections on recent cases” and s 29 of the Civil Procedure Act 2010, page 17
[4] Under section 110 of the Mineral Resource (Sustainable Development) Act (Vic)
[5] T218-:17–T219:7 (before Pagone J)
[1] at 19(j)/28(j), 19(k)/28(k) and 19(r)/28(r).
[2] at “as to Casacir…” 20(j)/29(j), “as to Casacir…” 20(k)/29(k).