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www.whentheftislegal.org

www.whentheftislegal.org

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Everything the Magna Carta was designed to prevent the Qld Judiciary did to me! The state government covered it up and no journalist in Australia is allowed to speak about it! - pure cronyism by crooked Supreme Court Justices.

Wirkus Vs Wilson Lawyers

Introduction

After six months of deliberation, Justice Peter Lyons issued a judgment on 4 April 2012 in our favour against LEXON Insurance, the Professional Indemnity insurer for Wilson Lawyers. The decision was based on the insurer's failure to conduct a $35 Freedom of Information search at the Brisbane City Council at the outset of proceedings; instead, this search was conducted following four years of legal proceedings and a settlement agreement that revealed we were entitled to an access easement and utilities over the private road that surrounded our property. The dispute originated because our land was landlocked and lacked legal access to the main road. The neighboring party who denied access was the senior property partner of McCullough Robertson Lawyers.

The initial judgment found that I was protected under the Integrated Planning Act 1997, which applied retrospectively to Development Approvals dating from 13 June 1987, with formal approval granted on 9 July 1987. This judgment was not formally sealed by Justice Peter Lyons. Subsequently, twenty-eight days later, Justice Lyons handed down a further order on 2 May 2012, reversing his previous decision, concluding that I was not protected under the Integrated Planning Act 1997. This revised order was accepted by both my barrister and the defense barrister, referencing the Development Application date of 10 March 1987 with the Brisbane City Council.

Additionally, LEXON Insurance discreetly honored a professional indemnity claim on behalf of James Noble, the developer of the estate, twenty-three years after he lodged plans with the Brisbane City Council with the knowledge that conditions of the Development Approval had not been satisfied.

Background of the Dispute

In March 2004, my ex-wife and I purchased an allotment in Indooroopilly from the Public Trustee after the previous owner passed away in a mental institution. The property lacked legal access to the main street. Although we owned the old driveway, our neighbour, who was the senior partner at Brisbane’s largest law firm, had landscaped it. The neighbour possessed an easement over our old driveway, allowing traversal but not landscaping. We requested a reciprocal easement over their privately owned road that ran parallel to the driveway and surrounded the main portion of our land, but the neighbour declined our request.

 After a year of fruitless negotiations, I removed the landscaping. In response, the neighbour obtained a Supreme Court injunction in Brisbane to prevent us from interfering with the easement on our land. The matter was heard by the then Chief Justice Paul de Jersey, who ordered both parties into mediation and obliged the neighbour to provide full disclosure of any access agreements or relevant documentation. After three additional years of expensive litigation, we reached a settlement that granted us restricted access to the neighbour’s private road but did not allow rights to essential services such as sewer, power, or telephone access

Discovery and Legal Proceedings

Initially, I suspected there was an error in the Brisbane City Council records because it seemed unreasonable for a property in the inner suburbs of Brisbane to lack legal access. When planning our new development, the Council approved the plan but required us to secure the neighbour’s permission to discharge stormwater onto their private road. My property expert lawyer was unavailable, so a junior lawyer advised us to conduct a Freedom of Information (FOI) search of the Council’s records. This search aimed to determine if the neighbour’s Development Approval included provisions for our stormwater.

After four years of litigation, a $35 FOI search revealed that we were always entitled to full access over the private road, including all essential services. Our expert property lawyers were negligent for not obtaining the FOI search at the outset, and it became clear the neighbour had misled us. As a lawyer and senior property partner, the neighbour was obligated to understand and fulfill his responsibilities to his neighbour’s. Our new law firm advised us in writing to sue for damages, citing negligence by our former lawyer and misrepresentation by the neighbour. We also discovered that the neighbour had been involved in similar proceedings regarding easement access over the common driveway between 1992 and 2001.
Professional Indemnity and Further Litigation

My lawyer informed me that I needed to seek a Queen’s Counsel opinion, which led me to believe the settlement we reached in October 2008 was the best possible outcome. A new planning law (circa 1998), the Integrated Planning Act 1997, applied retrospectively over the former Brisbane Town Planning Scheme of June 13, 1987, and imposed a significant penalty for anyone committing a 'continuing development offense.' Unfortunately, I was not protected by IPA 1997 because our Development Application was dated March 10, 1987.
Professional indemnity insurance for lawyers in Queensland is provided by LEXON Insurance, which is owned by the Queensland Law Society.

LEXON was the ultimate defendant, acting on behalf of both parties in our proceedings. The second set of proceedings lasted another four years. During this period, we engaged another independent property expert to review the FOI file and provide a report on the neighbouring subdivision. This report advised that IPA 1997 did provide protection because the Brisbane City Council Development Approval date was July 9, 1987.

Based on the original opinion, LEXON Insurance sought a Summary Judgment in January 2011, referencing the Development Application date of March 10, 1987. Chief Justice Paul de Jersey ruled in our favor, dismissed the Summary Dismissal Application in May 2011, and recommended the matter proceed to trial. LEXON Insurance continued to litigate, and the case was then heard by Justice Peter Lyons. Arguments were heard on multiple occasions, and Justice Lyons repeatedly questioned the statutory authority under which we sought protection, to which our barrister consistently cited IPA 1997.

Judicial Decisions and the aftermath

Final arguments were heard in October 2011. After six months of deliberation, Justice Peter Lyons delivered a favorable decision for us on 4 April 2012, based on IPA 1997. My barrister submitted a prepared order requesting Justice Lyons to seal the judgment, but Justice Lyons refused, stating he would seal the order at a ‘cost’s hearing’ on 28 April 2011.
Meanwhile, Lexon Insurance had filed a Notice of Appeal Application in the Court of Appeal.
At the hearing on 28 April 2012 no cost issues were discussed, and another hearing was scheduled for 2 May 2012.

On 2 May 2012, LEXON's submissions to the court referenced transitional section 22(B) of a former 1978 City of Brisbane Town Plan. However, section 22(B) had been repealed on 13 June 1987, and had no statutory authority. Justice Lyons ignored this fact and overturned his own decision after several hours of argument. When proceedings concluded, Justice Lyons remained on the bench, and after my legal team left, the barrister for LEXON approached the bar. Justice Lyons suggested, “May I suggest you now withdraw your appeal application,” to which the Barrister and Justice Lyons responded with a pompous chuckle. At the time, I did not realize the gravity of the offense.

Years later, I discovered that Justice Peter Lyons provided written advice within the 4 April 2012, judgment to LEXON at clause 29 on page 9: “The submission made on behalf of the plaintiffs that the 1987 approval was an approval given under a former planning scheme was not challenged.” This information was hidden among extraneous text, and Lyons included misinformation referencing superseded legislation.

The motive appeared to be protecting Brisbane’s largest law firm and their senior property partner from a significant penalty of 1665 points for ‘continuing a development offense’ and failure to disclose rights to an easement.

We were not required to lodge an appeal in the Court of Appeal because we had initially won. The same pattern repeated in the Court of Appeal, with transcripts showing that the crucial July 9, 1987, approval date was not contested.

Missing Records and Lack of Accountability

In 2017, I discovered that the original favorable judgment from 4 April 2012 was never placed in the court file, and at least 30% of the court documents were missing. Approximately two years ago, the Palaszczuk government held a public inquiry into Queensland’s Public Service, led by Tony Fitzgerald QC. I submitted my story but was informed it did not qualify, as the judiciary was not included in the inquiry’s terms of reference.

Despite repeated attempts to contact various officials—including the former Premier Anna Palaszczuk, current Premier David Crisafulli, the Attorney General, the Crime and Corruption Commissioner, the Legal Services Commissioner, the President of the Queensland Law Society, and the Civil Liberties Council of Queensland—I received little response. All mainstream media outlets have ignored my case; their legal representatives risk contempt of court if they publicize my story, leaving me unheard.

My Opinion

Justice Peter Lyons provided his original correct 4 April 2012 Judgment in our favour against Bartley Cohen and associates and their insurer, LEXON insurance. The Judgement found that we were protected by IPA 1997 as it applied retrospectively over Development Approvals to the 13 June 1987 and the Development was approved for construction on the 9 July 1987. However, Lyons refused to seal the Judgement.

Four weeks later (28 Days), Justice Lyons provided a second order / judgement. This time against me, finding (incorrectly) that I was not protected by IPA 1997. This judgement was accepted by my barrister and the defence barrister.

I applied to the court registry for a copy of the first Judgement and the supporting documents, but they had been removed from the court file.
In my opinion everyone in the Courtroom cooperated, including my own Barrister, when Lyons overturned his original decision in my favour. 

Justice Peter Lyons, Justice Phillip McMurdo, Mark Hinson SC, Kylee Downs SC, and Rowan Jackson SC all previously worked for McCullough Robertson Lawyers. Mr. Rodney Bell, who served as the senior property partner at McCullough Robertson and the original Developer Mr. James Noble, stood to face a significant penalty of 1,665 points should the first judgement remain in effect. LEXON Insurance acted as the primary insurer for all of the legal professionals involved in the proceedings. Furthermore, senior management at McCullough Robertson lawyers were included in email correspondence regarding the case, highlighting that all parties had a conflict of interest in the matter.
 
Another Case of Cronyism

Walton Construction (Qld) Pty Ltd v Corrosion Control Technology Pty Ltd & Ors
Mr. Lindsay Kettle was the director of Corrosion Control Technology Pty Ltd
Waltons Construction (Qld) Pty Ltd issued ‘breach of contract’ notices to all sub-contractors on site as a mechanism to provide financial relief due to poor site management shifting blame upon those contracted.
Justice Peter Lyons is accused of deliberately misinterpreting Building and Construction Industry Payments Act 2004 (Qld).  The decision established that a "reference date" under a construction contract does not arise after the contract has been terminated, meaning no valid payment claim can be made under the Act after that point. 

The decision was absurd as the defendant documented all correspondence and the ‘contract’ had not been terminated. The termination process was subject to procedural conditions.
Justice Peter Lyons ruled the Building and Construction Industry Payments Act 2004 (Qld) did not apply, despite ongoing disputes over the termination process and documented evidence that the contract remained active.

This case is distinct from the 2014 Federal Court decision of ASIC v Franklin, which concerned the independence of liquidators in the collapse of the Walton Construction group. 

Call for Reform

I am seeking assistance to make my story public. There is an urgent need in Queensland for a public inquiry and the establishment of a Judicial Commission to ensure accountability and justice for all. The Queensland Government Parliamentary Crime and Corruption Committee continue to stone wall my complaint

Randolf A Wirkus
 
Citing 1:              City of Brisbane Act 1924, City of Brisbane Town Planning Act 1964 and the City of Brisbane 1987 asented13 June 1987 (“Brisbane Planning Scheme”)

Citing 2:              LGA Local Government Act 1924 came into effect 1 October 1925 covers the core and inner portions of the City of Brisbane.

Citing 3:              LGA was replaced by local Government (Planning and Environment Act 1990) Section 8.10 (now repealed) assented 18 Sept 1990 and commenced 15 April 1990. LGA provided for town planning and related environmental matters in local government areas, including the City of Brisbane.

Citing 4:              LPA The Integrated Planning Act 1997 assented 1 December 1997 replaced the LG(P&E) Act 30 March 1998 provides at s3.5.28 that a development approval attaches to the land and“binds the owners, the owners successors in title and any occupier of the land”

Citing 5:              Building Units and Group Title Act (QLD) (BUGTA 1980) Section 9 (7) in accordance with all requirements City of Brisbane Act 1924 - 1980

Approval Process

Section 21 of the City of Brisbane Town Plan 1987(“Brisbane planning scheme”) contained planning ordinances relating to group title subdivisions. The Brisbane City Council approved the Development Application 9 July 1987 for the purposes of section 9 (7) before the commencement of the LGA P&E Act.
Section 21.2.1.1 A person proposing to subdivide … land into lots and common property … shall make an application to the council for a certificate for the purposes of section 9(7) of the Act. For the purposes of this “Act” meant BUGTA.

When the LGA P&E Act. The savings and transitional provisions were contained in section 8.10 and included section 8.10(7)(a) “Each approval consent or permission (together with any conditions attaching thereto) granted by a Local Authority or the Governor in Council prior to the commencement of this Act…..is to continue to have force and effect as if it were an approval, consent or permission, as the case may be, pursuant to this act.” {Emphasis added}
But those provisions were repealed before they commenced and a new section 8.10 was substituted and commenced on 15 April 1991. A new section 8.10(8)(a) provided –
“Each approval, consent or permission (but not any condition attaching thereto) granted by a Local Authority or the Governor in Council prior to the commencement of this Act is to continue to have force and effect as if it were an approval, consent or permission, as the case may be, pursuant to this Act (but any conditions attaching thereto are still to apply as if this Act had not been commenced.” {Emphasis added}

Status of Approval under IPA 1997

The Integrated Planning Act assented 30 March 1998. Division 6 created the concept of “Continuing Approvals”
Section 6.1.23 (1) (d) defines “Continuing Approvals” as including approvals by whatever name called, given under a former “planning scheme” in force immediately before the commencement of section 6.1.23
Section 6.1.1 define the term “former Planning scheme” as meaning a planning scheme under the repealed Act (i.e., The LG P&E Act) in force immediately before the commencement of IPA section 6 (i.e., 30 March 1998)
Immediately prior to the commencement of section 6.1.1 the Brisbane Planning Scheme was a town planning scheme which had the force and effect under the LG P&E Act.
Section 6.1.23(2) applied despite the repeal of the LG P&E Act and provided that each continuing approval and any conditions attaching to a continuing approval had the effect as if the approval and the conditions were a development approval in the form of a preliminary approval or development permit.

Citing 6:              LG (P&E) Act Amendment Act 1991 (Qld)

Citing 7:              LG (P&E) Act Amendment Act 1990 (Qld), s8.10(1) and (3)

Development of Approval Offences and penalties
Section 4.3.3 (1) provided that a person must not contravene a “development approval” including any condition in the approval and specifies a maximum penalty of 1,665 penalty units.
Section 4.3.22 (1) confers a right in rem to apply to the Court for an order to remedy or restrain the commission of a development offence.

Note: - IPA 1997 applied retrospectively 13 June 1987. The Wirkus estate was subject to receive an easement due to a Brisbane City Council Development Approval on 9 July 1987.