Justice Osborn's Reasons for Judgment are so comprehensively and cohesively wrong You be the judge. |
Justice Osborn and the "Book of Pleadings"
This page describes the aspect of Justice Osborn's Reasons for Judgement in relation to the "Book of Pleadings", a document which the lawyers for the Council and Water Authority used to support their fallacious case for my proceeding in relation to Tylden Rd to be struck out. In essence, Justice Osborn's Reasons rely on his misrepresentations of the "Book of Pleadings" to provide verisimilitude to Master Efthim's Reasons and to provide verisimilitude to his own fallacious Reasons for finding against me and to ignore, deny, conceal and make wrong the fact known to him that the lawyers misled Master Efthim.
Layman's synopsis
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Background
As detailed on this the Lying Lawyers Part One page of this website the lawyers contrived a strategy to misled Master Efthim such that Master Efthim made judgment to the specific exclusion of the things constituting the true "causes of action".
At the time of the hearing before Master Efthim, the lawyers for the Council and Water Authority needed to show the Court that I was aware of the "cause of action" in relation to Tylden Rd too long ago and was barred by the Limitation of Actions Act, and other laws, from bringing the 2005 proceeding.
For this purpose the lawyers misled Master Efthim into believing that unlawful plans of subdivision constituted or gave rise to the "cause of action" and they concealed the true "cause of action" which was that the Notice of Requirement referred to in the Council's minutes of 20th February 1980 had not been served.
In support of their fallacious argument, the solicitor for the Water Authority, Mr. Steven Edward, produced a document entitled "Book of Pleadings". This document was prepared by me in about 1990 for the exclusive use of my legal counsel during the 1988 Tylden Rd proceeding in the County Court which was still in progress. It had been improperly obtained and improperly submitted into evidence, however this is another story.
Master Efthim found against me and relied heavily on the Book of Pleadings to support his Reasons for Decision. At his paragraph 57 Master Efthim transcribed part of the Book of Pleadings which contains several references to "contrived plans" which clearly demonstrated my knowledge of "unlawful plans". Then at his paragraph 58 (last star) he says:
"Clearly on an analysis of the pleadings by Mr. Thompson, it appears that nothing has been concealed from the Plaintiffs."
However the fact is that Master Efthim was misled by Mr. J Delaney SC into believing that the "Book of Pleadings" showed that I knew that the "unlawful" plans facilitated avoidance of s.9 of the Sale of Land Act. However, the reverse was true, the Book of Pleadings clearly demonstrated that although they had been "contrived" for that purpose the "unlawful" plans did not facilitate such avoidance. Mr. Delany misled Master Efthim by omission and misrepresentation of the the facts and the law before him. [see Lying Lawyers]
Master Efthim's statement that "nothing had been concealed" from me was manifestly wrong. What had been concealed was the fact that the Notice of Requirement referred to in the Council's Minutes of 20th February 1980 had never been either issued or served. This was the basis of the true "cause of action" before him.
In fact the "Book of Pleadings" contained clear evidence that I was unaware, at that time, of the true "cause of action". Like the Magistrate and Justice Kaye before me, I was of the firm belief that a Notice of Requirement had been served and that it did impose a lawful obligation on Buchanan to construct the roads and this belief is confirmed by the "Book of Pleadings" and by the Amended Statement of Claim in the 1988 Tylden Rd proceeding.
I appealed to Justice Osborn. Justice Osborn was made fully aware of the true "causes of action" and that Master Efthim had been misled.
Justice Osborn and the Book of Pleadings
Justice Osborn could not and did not confirm the Reasons of Master Efthim. He instead purported to make judgment on the true issues, namely whether or not I previously knew that a lawful Notice of Requirement had not been served.
Justice Osborn wrongly asserted that the Amended Statement of Claim in the 1988 Tylden Rd proceeding alleged that no Notice of Requirement had been served. To support this assertion Justice Osborn, like Master Efthim before him, relied upon the "Book of Pleadings".
At his paragraph 117 Justice Osborn said "Longstanding knowledge of this fact is further confirmed by a book of pleadings. .... ". He then referred to Master Efthim's consideration of the "Book of Pleadings" and stated "...... Master Efthim highlighted the relevant extracts from the document in his decision which I shall amplify"
Justice Osborn then transcribed exactly the same extracts Master Efthim had transcribed to his Reasons. Justice Osborn did "amplify" these extracts by adding an extra line to two extracts and by inserting a new extract numbered "C6".[fourth star].
This shows that Justice Osborn did examine the "Book of Pleadings" and Justice Osborn is thereby fixed with knowledge of its content.
The extracts transcribed by Master Efthim into his Reasons are those relevant to knowledge of "unlawful" plans which he, having been misled, understood to be relevant to the "cause of action". Apparently unaware of the true "cause of action" Master Efthim did not transcribe extracts from the "Book of Pleadings" which related to my knowledge of service of the Notice of Requirement.
Justice Osborn on the other hand was under no such misapprehension. He knew that the true "cause of action" related to the non-service of the Notice of Requirement. He knew that the Statements of Claim in the 1988 Tylden Rd proceeding specifically alleged that the Notice of Requirement had been served [first star]. He had read the "Book of Pleadings" which contained multiple instances which demonstrated that my belief was that the Notice of Requirement had been served.
For the scheme of his Reasons Justice Osborn elected to ignore, deny, conceal and/or make wrong the evidence before him.
Justice Osborn's overt omissions
The "Book of Pleadings", amongst other things, says:
- “a ‘Notice of Requirement’ had been served therefore:-” (at red star)
This is an unequivocal statement as to my belief that ‘a’ Notice of Requirement had been served. - “my Guarantee was to be used to let Buchanan off the hook so to speak” (at red star)
This is a reference to a belief that the Council ‘lifted’ the Requirement on receipt of my guarantee and thereby “let Buchanan off the hook”, the “hook” being the duty imposed on Buchanan by the lawful “requirement” then believed to exist. - “The Council and Water Trust released Buchanan from his lawful obligation ….”
A further reference as in 1 and 2 above, that I had a belief as to a “lawful obligation” pursuant to a lawful requirement. - “….. I now know the Council released Buchanan from his obligation … “ (at green star)
This is a further reference to a belief that Buchanan was released from the lawful obligation imposed by a lawful requirement. - “The Council however always intended that the Requirements were ‘secretly’ still on foot
A requirement cannot be ‘secretly still on foot’ without having first been on foot. The plural “Requirements” is a reference to the fact that there were two requirements, one for roads and one for water, and not multiple notices of requirement. The "secretly still on foot" is a reference to the fact that they retained and called upon my guarantees after "lifting" the requirement and thereby they were "secretly still on foot". - “At all times Porter knew ……. the Council requirements had been lifted” (at red star)
A requirement cannot be “lifted” without having first been imposed. This a further reference to a belief that a lawful requirement was on foot before being “lifted” - "...... Porter knew that as the Requirement had been lifted Buchanan was no longer responsible ....." (at green star)
A requirement cannot be “lifted” without having first been imposed and Buchanan could not be "no longer responsible" without first having been responsible. - "At the time of lifting the Requirement......" (at first X)
A requirement cannot be lifted without first having been imposed. - "My Guarantee therefore was immediately at risk" (at second X)
Because the Requirement had been lifted. - "The Water Board accepted my Guarantee for the purpose of letting Buchanan off the hook so to speak" (at third X)
This is a reference to a belief that the Council ‘lifted’ the Requirement on receipt of my guarantee and thereby “let Buchanan off the hook”, the “hook” being the duty imposed on Buchanan by the lawful “requirement” then believed to exist.
In the face of the facts
In the face of these omitted extracts, at his paragraph 118 Justice Osborn said of his handpicked paragraphs.:
"These extracts demonstrate that the plaintiffs were well aware as at the date of the annotations (prior to the delivery of the amended statement of claim in the County Court proceeding) that
(a) The council served separate notices of requirement in relation to each of the contrived plans .........
(b) The Notices of requirement were dated 20 February 1980 but were served ...........
(c) The relevant 30th schedule notices were dated 4 March 1980 .....
(d) There was no notice of requirement served or pursued in respect of the original proposal to subdivide the whole of the land pursuant to global plans of subdivision for industrial lots and residential lots respectively.
The first three of these things said by Justice Osborn are true but irrelevant. These three paragraphs relate to the series of contrived 2-lot plans. They do not say or imply anything with respect to the Notice of Requirement referred to in relation to the original proposal referred to in the Council's minutes of 20th February 1980.
The fourth thing said by Justice Osborn is simply false. The "extracts" did not demonstrate I was aware that "there was no Notice of Requirement served". In fact the "Book of Pleadings" in its entirety clearly demonstrated that I did hold a belief that a lawful Notice of Requirement had been served.
Neither the Amended Statement of Claim in the 1988 Tylden Rd proceeding nor the "Book of Pleadings" said what Justice Osborn attributed to them. The basis of the 1988 proceeding was the polar opposite to the basis of the 2005 proceeding before Master Efthim and Justice Osborn. Justice Osborn also misrepresented the allegations set out in the Amended Statement of Claim in the 1988 Tylden Rd proceeding.
Justice Osborn's Reasons for Judgment are false, misleading and deceptive. He intended to provided verisimilitude to Master Efthim's Reasons and he did so in the face of the facts squarely before him. He effective ignored, denied, concealed and/or made wrong the fact that Master Efthim had been misled and for these purposes he intended to, and did, find against me.
Justice Osborn misrepresented the Amended Statement of Claim in the 1988 Tylden Rd proceeding. He then supported his assertions by taking unrepresentative excerpts from the "Book of Pleadings" to the exclusion of the many examples that contradicted his position. He then relied upon his misrepresentations to provide a bar to the proceeding before him. |
Complete Book of Pleadings here
How Mr. Steven Mark Edward obtained the Book of Pleadings here
Justice Osborn's full Reasons for Judgment [also available on austlii database]
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