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.
In the affidavit sworn by man X on behalf of himself, man Y and CASACIR (and with the later admitted approval and authorisation of man Y and CASACIR) dated 6 September 2010, man X swore: “47 Topsoil has not been used in the construction of the bund [sic]. The bunds have been constructed from overburden and rock. Stripping of material had to date only occurred within the old quarry location. Very little topsoil exists in these rehabilitated areas. None has been able to be salvaged to date. Consequently there are no topsoil stockpiles on-site”. This was false testimony because topsoil, and only topsoil, was used to make the northern bund, and significant topsoil was used for the southern bund.
Man X falsely swore on behalf of himself, man Y and CASACIR (and with the later admitted approval and authorisation of man Y and CASACIR) to the following in the following examination at VCAT:
Peake: It is alleged in [her] material that you have been failing to stockpile topsoil. What do you say about that?
Man X: That’s true.
Peake: And, why?
Man X: Because up until now, there hasn’t been any topsoil to salvage. The quarry… the area where we are stripping and extracting rock from, is in the area that was rehabilitated, under the past owners and there was no… there was only overburden used, there was no distinct topsoil, so we can’t salvage something that’s not there[1].
The reality was that there was topsoil and it was not stockpiled. Further, there were no stockpiles of topsoil for years – instead, the material was unlawfully used for bunding (including being used in the creation of the very belated south-west bund), and was further stored and compacted on the eastern side of the property where it is not permitted to be placed let alone compacted (this is addressed further down) – so they had still not complied.
Man X swore on behalf of himself, man Y and CASACIR (and with the later admitted approval and authorisation of man Y and CASACIR), to the following
VCAT member: Hang on, I might have I’m confused here. I thought overburden was that which lies above what you are trying to win and includes topsoil and subsoil.
Peake: Yes, but for the purpose of the planning permit, we distinguish between the two because… well, I’m about to ask the witness, but because, as far as the topsoil goes, that is stored until it is required to restore the topsoil, but that could be a very long time.
VCAT member: It’s stored for the purpose of rehabilitation?
Peake: Yes.
VCAT member: And the excess of it … It’s a valuable commodity. I suppose not … not been, it hasn’t been rehabilitated and is subsoil also useful for rehabilitation?
Man X: [T]hen the overburden is put back in to shape it, the quarry, to its final design.
Peake: And then am I correct in assuming the top soil is then put on top of the – – –
Man X: And then the topsoil is put back on top of that, that’s right[2].
In addition, man X, man Y and CASACIR’s work plan stated: “2.3 Topsoil will be kept for rehabilitation purposes. … 6.2.1 Soil will be stripped away and either hauled directly to prepared rehabilitation areas or stockpiled for later use in rehabilitation. … The location of the stockpiles are shown on Figure 3 Site Photo Plan and Figure 5 Development Plan. The height of topsoil mounds will be limited to approximately 2m high to assist in maintaining soil viability. Top soil will be vegetated to prevent erosion. All top soil will remain on site for use in rehabilitation”. However, as stated above, there was no topsoil stockpiled regardless of significant amounts having been removed and significant amounts were used for the creation of bunds, not the topsoiling of them, but used as the base of them. So when man X swore on behalf of himself, man Y and CASACIR (and with the later admitted approval and authorisation of man Y and CASACIR): “And then the topsoil is put back on top” he swore falsely. This was also the case when he swore on behalf of himself, man Y and CASACIR (and with the later admitted approval and authorisation of man Y and CASACIR) (affidavit dated 6 September 2010: “ 49 To the best of my knowledge, Casacir has complied with each of the conditions” and affidavit dated 8 November 2010: “9 To the best of my knowledge, Casacir has complied with each of the conditions of the planning permit and work authority” that he had complied with the conditions – which required compliance with the work plan.
Kraan’s planning report paragraph 3.6 and statement of evidence paragraph 4.5.2[3] both stated: “The top 150mm of soil (including fibrous and root materials) will be striped prior to overburden removal. Generally this will be excavated by excavators loading haul trucks. It will either be transported directly to prepared rehabilitation areas or stockpiled for use in future rehabilitation. It will be stored separately to the overburden. The location of the proposed soil stockpiles is shown on Figure 3”.
Kraan’s statement of evidence additionally stated: “4.5.2 Topsoil stockpiles will be less than 2m high to assist in maintaining soil viability and the stockpiles will be protected with a cover crop to protect against scour erosion. The topsoil will be used judiciously on the steeper slopes to promote revegetation”.
Man X, man Y and CASACIR concealed the fact that, although they knew that there would be insufficient topsoil for the full rehabilitation, they actually had no intention of stockpiling a considerable amount of the topsoil removed from the initial stages, but intended to use it, and have used it, in direct disregard for WA condition 11: “11.1 At the commencement of excavation, the Work Authority holder must ensure that topsoil to a depth of 150mm below the natural surface is removed and placed in stockpiles not exceeding 2m in height. 11.2 The Work Authority holder must ensure that topsoil stockpiles are protected from erosion and compaction”. In blatant breach, they used it for bunds from which it is not recoverable – or they have sold it in which case it is certainly not recoverable.
Whilst the claims below are plainly in regard to their false claims of injurious falsehood and misleading and deceptive conduct[4], it is very relevant to include them given that man X and man Y subsequently made the further claim as absolute fact in writing to McDonald J that: “Simply because these [injurious falsehood and misleading and deceptive conduct] claims were discontinued does not mean that they had no proper basis[5] …Where there has been no trial on the merits, it will rarely, if ever, be appropriate for a court determining how the costs of the proceeding should be borne to endeavour to determine for itself the outcome of a hypothetical trial. This is particularly the case where, as here, [she] has raised no matter that go any way to establishing that the claims were without merit”[6]. They withdrew the claims, and yet furthered their obstruction of justice by seeking to have McDonald J effectively make a determination that the claims had validity by not granting costs against them.
Man X swore on behalf of himself, man Y and CASACIR (and with the later admitted approval and authorisation of man Y and CASACIR) to the following in this examination at VCAT:
Peake: Can I ask you some questions about overburden? Now, overburden’s that stuff that lies under the topsoil and above the rock.
Man X: Yeah. …
Peake: The approved Stage 1 plan that I took you to designates an area to the west of the quarry and the Stage 1 quarry hole towards Neerim North Road as temporary excess overburden storage
Man X: Where… oh yes, yeah.”
Peake: Do you see where that notation appears above a shaded area?”
Man X: Yes.
Peake: What’s the… can I call it the lifecycle of the overburden? What do you do with it? You obviously remove it and you store it. What happens to it after that?
VCAT member: And the excess of it …. It’s a valuable commodity. I suppose not … not been, it hasn’t been rehabilitated and is subsoil also useful for rehabilitation?
Peake: Well, I was about to ask [man X]. What happens to the overburden?” “
Man X: Well the plan is… there is a tremendous amount of overburden produced in opening up a quarry. Stage 1, most of it is used in bunding or stockpile to be used later for rehabilitation. So, as we move into stage 2, there is progressive rehabilitation using the stripping or overburden.
Peake: So the rock is quarried and removed from the site.” “
Man X: Yeah and then the overburden is put back in to shape it, the quarry, to its final design.[7]
There was no stockpiling at that time, even though there was much more than was used in the southern bund (the only bund for which overburden was used to that time), because some of the overburden was sold and man X admitted that at the 7 April 2011 community meeting, as identified in the record of the meeting:
[Me]: also asked as to why Casacir is selling overburden as she had seen trucks leaving with overburden.
[Man X]: responded that six loads of clay fill had been transported to Tarago Dam.”).
So Man X gave false testimony to the tribunal in his description of the overburden processes. Further, it was acknowledged in man X. man Y and CASACIR’s work plan: “6.4 The site does not generate enough overburden to completely rehabilitate all quarry faces as described above. Overburden may be supplemented with quarry waste and other suitable material, however it is still unlikely there will be sufficient material to completely cover all the exposed quarry faces”. So the overburden was sold regardless of the insufficiency of it!
What I said on my former website was (“Sale of overburden”): “In spite of the work plan saying that there would not be enough overburden to fully rehabilitate the benches and faces, they have sold (and are probably still selling) overburden. At the community meeting on 5 April 2011 I asked why they were doing selling overburden and Jack Kraan emphatically said that they were not. I said that I had seen them doing so and [man X] then had to admit that he had already sold 6 truck loads. In fact, they were still selling overburden and/or topsoil recently as shown below (and one of the drivers said that they sell it as “sand”). It appears that making money is much more important than sticking to the work plan or asking if they could change what they want to do”. Not only was this true, but was not defamatory, was not anything that could cause injury, and it was neither misleading nor deceptive.
What man X, man Y and CASACIR particularly took umbrage at was that I said: “In spite of the work plan saying that there would not be enough overburden to fully rehabilitate the benches and faces, they have sold (and are probably still selling) overburden”.
Man X, man Y and CASACIR claimed that they don’t interpret matters as they want to: “[Man X] did not interpret [matters] how he wanted to interpret them rather than how they should be interpreted. … [Man Y] did not interpret [matters] how he wanted to interpret them rather than how they should be interpreted. … It is incorrect to allege that Casacir has interpreted [matters] how it wanted to interpret them rather than how they should be interpreted”[8], but this is not true because they twisted what I wrote and interpreted[9] it as me saying: “[That they have] been in contravention of [their] work plan by selling overburden, and [were] probably still doing so”. Proof of what I have in my former website said was by man X admitting to it at the community meeting (and which is detailed in the record of that meeting).
Man X, man Y and CASACIR clarified their stance by having claimed: “[That they have] not been in contravention of its work plan by selling overburden; there is nothing in the work plan which prohibits the sale of overburden created as part of the Casacir quarry operations”. So, while there was nothing that actively permits or forbids the sale of any such overburden, there was a noted acknowledgement of the shortfall of the material for rehabilitation purposes, so to sell it was, in my opinion, not good environmental management and clearly infers their motivation was to make more money than to act responsibly. I also contend that it also makes a mockery of their claims of environmental responsibility. So, while there is nothing to say they couldn’t sell the overburden, there was nothing to say they coould – the reality is that they were not upfront with their intentions, and it was not a “permitted” use of the material. What they claimed was an obstruction of justice, dishonest, misleading and deceitful.
Man X swore on behalf of himself, man Y and CASACIR (and with the later admitted approval and authorisation of man Y and CASACIR) to the following in this cross-examination:
VCAT member: You’ve commenced stripping off benches…
Man X: Yes.
VCAT member: New bench faces?
Man X: We have now, today, er, well, this week, yeah.
VCAT member: This week?
Man X: This week, yeah.
VCAT member: Now, there was monitoring of an excavator on a new top bench some time ago?
Man X: That, that photo shows material being thrown up on top of that bench, ah, but this was too wet to [be] trucked at that stage…[10]
It was not too wet to have road trucks in the same area taking the overburden for sale, but it was too wet, according to man X under oath, to move it for stockpiling where he swore that it would be stockpiled, and where their permit and work authority demanded it be stockpiled (but was not stockpiled – and even 2 years later there was no stockpiling there). Instead, the material was illegally stockpiled on the eastern side of the property – specifically in an area that explicitly prohibited any such activities – outside the work authority boundaries, above the filthy dam (adding to the pollution of the dam).
Man X, man Y and CASACIR’s second and third work plans both stated “6.2.1 Typically, … overburden stripping will involve an excavator loading haul trucks but may also include dozers and FELs. … 6.4 The site does not generate enough overburden to completely rehabilitate all quarry faces as described above. Overburden may be supplemented with quarry waste and other suitable material, however it is still unlikely there will be sufficient material to completely cover all the exposed quarry faces”.
Both council and DPI repeatedly told man X, man Y and CASACIR to remove the stockpiling from the east, and they said they would, but didn’t – instead they added to it significantly, adding both overburden and resource (and, as at the end of 2019, the mountains of resource remained there). Further, they have done further works in the area specifically forbidden.
They lie at VCAT (including under oath), they treat explicit and direct instructions with absolute contempt if that is what work for them, and they take action that is entirely unwarranted, fraudulent and which is an obstruction of justice.
Having deliberately misled and deceived VCAT, they then went on to insult the court in like manner. Those are but a few of the many examples that prove the real reasons why those claims of injurious falsehood and misleading and deceptive conduct, as well as CASACIR, had to be removed – because they had no merit. In fact, as stated previously, the only reason that they were in the claim in the first place was because they were trying to use them as a further lever to bully, scare, intimidate and coerce me into removing my former website in its entirety from the internet – it actually had nothing to do with the purported words identified. This is further proved by the fact that, once I had succumbed to their bullying and intimidation, and removed the entire website, they immediately removed every injurious falsehoodand misleading and deceptive conduct claim, and CASACIR.
Instead of taking responsibility for their actions and try to mend their ways, man X, man Y and CASACIR “victim blamed” me and made it all my fault for revealing what they did and didn’t do – in fact, man X testified in the Supreme Court that” “We have always done something but you’ve had to bring it to our attention and everybody’s attention again”[11]. In other words it was my revealing of what they did and didn’t do, not the things done wrong that were at issue and were, to them, the problem.
Clearly man X, man Y and CASACIR made fraudulent claims and denials. As we have seen as we have been progressing through the claims, this is nothing new. The above is a strong indication about how relaxed they felt about attempting to pervert the course of justice, obstruct justice, abuse the court’s processes, making collaborated fraudulent claims and denials, and why they won the VCAT cases and the associated appeal costs, and also won hundreds of thousands of dollars in court in damages, interest and costs: by determinedly conspiring and colluding to obstruct justice and commit fraud upon the court and me.
[1] T11:1-7 (26 November 2010)
[2] T11:24–T12:12 (26 November 2010)
[3] Both filed with the tribunal as being absolute fact
[4] Those claims were only made against me for the purposes of trying to intimidate, bully and harass me into the removal of the entirety of my former website (in which they succeeded)
[5] The defendants’ outline of submissions dated 9 July 2015, paragraph 27
[7] T11:8–T12:10 (26 November 2010)
[8] The first 5 iterations of their statements of claim
[9] The first 5 iterations of their statements of claim